#39 - JRL 2009-184 - JRL Home

From: Nicolai Petro <nnpetro@gmail.com>
Date: Sat, 3 Oct 2009
Subject: A few comments on the Tagliavini Commission's Report

Having recently written about Russia's legal case for intervention in
Georgia in the Fordham International Law Journal (volume 32, #5, May
2009), I have three comments to share on the Tagliavini Commission's

(1) "According to the overwhelmingly accepted uti possidetis
principle, only former constituent republics such as Georgia but not
territorial sub-units such as South Ossetia or Abkhazia are granted
independence in case of dismemberment of a larger entity such as the
former Soviet Union."

Russia did, in fact, apply this principle, in the face of multiple
efforts by the regions of South Ossetia and Abkahzia to secede, and
throughout the regional military conflicts that have lasted the better
part of the past two decades. In 2004 Russian president Putin
certainly followed this principle when he helped the newly minted
president Saakashvili peacefully reintegrate the rebellious region of

But, in light of the persistent demands by South Ossetia and Abkahzia
for full independence, it behooves us to ask at what point we should
begin to take Georgian sovereignty seriously; i.e., when ute
possidetis begins to apply to the rebellious provinces vis-a-vis
Georgia, as the larger sovereign entity, rather than to the USSR,
which has been defunct for nearly two decades.

(2) "Among major powers, Russia in particular has consistently and
persistently objected to any justification of the NATO Kosovo
intervention as a humanitarian intervention. It can therefore not rely
on this putative title to justify its own intervention on Georgian
territory. And as a directly neighbouring state, Russia has important
political and other interests of its own in South Ossetia and the
region. In such a constellation, a humanitarian intervention is not
recognised at all."

Both of these arguments, that Russia should not have intervened
because (1) it does not acknowledge such a justification in Kosovo;
and (2), it has significant other interests in the region, strike me
as weak.

Surely, it is not hard to conceive of circumstances where a state
might advocate humanitarian action in one region, while opposing it in
another. This is so commonplace as to be considered intrinsic to the
behavior of states, and therefore hardly a viable criterion.

On the second point, nations will define their interests as they see
fit, and very often their most intense expression of them is toward
their neighbors. Indeed, such proximity has typically been an argument
in favor of humanitarian intervention, though rarely more explicitly
made than in Theodore Roosevelt's December 1904 annual message to

"If a nation shows that it knows how to act with reasonable efficiency
and decency in social and political matters, if it keeps order and
pays its obligations, it need fear no interference from the United
States. Chronic wrongdoing, or an impotence which results in a general
loosening of the ties of civilized society, may in America, as
elsewhere, ultimately require intervention by some civilized nation,
and in the Western Hemisphere the adherence of the United States to
the Monroe Doctrine may force the United States, however reluctantly,
in flagrant cases of such wrongdoing or impotence, to the exercise of
an international police power."

While such brazen indifference to the distinction between morals and
interests may sound jarring to us today, that does not mean no
meaningful distinction between the two can be drawn.

An appropriate standard might be this: Does the intervening power
subsequently take advantage of its intervention to advance previously
asserted specific non-security and non-humanitarian interests? Â I believe
that this can be determined relatively objectively, with the greatest
controversies most likely arising from preferential treatment accorded
to the trade and commercial interests of the intervening state,
particularly if these are made at the expense of non-belligerent third

(3) "Former Soviet citizenship is not considered sufficient grounds,
since this status had already been translated into Georgian
citizenship at the time of independence. . . . They were still
citizens of Georgia at the time of the armed conflict of August 2008,
and in legal terms they remain so to this day unless they had
renounced or lost their Georgian nationality in regular ways.â€

The report suggests that Russian citizenship, even though freely
chosen by the majority of South Ossetians and Abkhaz, should be
considered invalid and, as a result, its use as a justification for
military actions rejected.

When the first fighting between Georgia and these enclaves erupted
in 1991, however, all the inhabitants were Soviet citizens. This is
the only thing acknowledged by all sides. Many Abkhaz and South
Ossetians further argue that they were never Georgian citizens to begin with
because their armed struggle for independence began before Georgia had declared
its own independence from the USSR.

To subdue these regions, Georgia has several times attempted to impose
economic sanctions against them, including the denial of Georgian passports.
Without a valid passport, local residents could not travel abroad,
could not collect their pensions, and could not access any social or
public medical services. As living conditions in these regions
deteriorated, Tbilisi reasoned that the local residents
would have no choice but to either relocate to Russia, or submit to Georgian
authority. Needless to say, this did not endear them to the local population.

Now, even if one assumes the validity of the basic principle, it seems
breathtakingly cynical to recognize the Tbilisi regime's jurisdiction
over a population to whom it had denied the basic benefits of Georgian
citizenship, then punished with an embargo for having accepted Russian
citizenship to survive, and finally, assaulted militarily during the
night of 7/8 August 2008.

Professor Nicolai N. Petro
Department of Political Science
Washburn Hall, University of Rhode Island
Kingston, RI 02881 (USA)

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