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Abkhazia and "South Ossetia": occupied territories or independent states
15/07/2010 13:52
Simon Kiladze

Several days ago head of Georgian breakaway region of Abkhazia Sergey Bagapsh made the following statement before the activists of the party Edynaya Abkhazia: "Abkhazia is not the same as it was before the August 208 events. International recognition of independence burdens us with great responsibility"– said he and hereby specified - "Abkhazian should live in accordance with norms of international law".

Sergei Bagapsh made this statement about property disputes between Russians and Abkhazians that almost caused a diplomatic scandal between Moscow and Sukhumi. The thing is that apartments of many Russians, who lived in Abkhazia and for various reasons left for Russia, were appropriated by Abkhazians through illegal decisions of local courts and corruptive deals. Russians who were naturally citizens of Russia turned for help to their native courts and Ministry of Foreign Affairs of Russia. It appears that Foreign Minister Sergey Lavrov and President Medvedev himself became interested in this problem and they demanded several times from Bagapsh to solve these court cases justly.

In June at one of the court sessions solicitor of Russians stressed that based on the European court practice Russia is responsible for whatever is happening in Abkhazia as it is Russia that provides for existence of Abkhazian authorities - helps them in political, military as well as economic spheres. By the way, the European court put similar obligation on Russia when it considered human rights violations in Moldova's Transnistrian republic. The same resolution was issued with regards to violations in the Turkish Republic of Northern Cyprus. In the latter case it was Turkey that was defined as responsible party. Both cases concerned return of assets (houses, land and so on).

It seems that court sessions in Moscow and efforts of the Russian Foreign Ministry led to certain results. It was determined to establish joint Russian-Abkhazian commission that would consider each case individually and Sergei Bagapsh voiced a suggestion for all injured parties to be given new apartments in new-built apartment blocks that would be built especially for this purpose.

One way or another, Russian claimants were very dissatisfied with this verdict. New complaints were written that "Abkhazian justice not only does not defend human rights but it violates them and Abkhazian judges are stuck in swamp of corruption".

Of course, this question is very important for those Georgian citizens that for almost twenty years have been refugees from Abkhazia as it also concerns their assets and properties. Despite the fact that there is a big gap between the statuses of injured Russians and Georgians it is still an axiom that assets should be returned to everyone notwithstanding their ethnic belonging. As it is known return of assets of refuges from Abkhazia and necessary restitution of damage is stipulated in the 4th clause of the memorandums drawn up between Abkhazian and Georgian sides in Geneva on November 30th 1993.

In addition, there are series of international convention of international private and humanitarian law (for example, convention on refugee status passed in 1951, as well as European convention for human rights of 1950, the UN convention 1974 and so on).

In general, problematic of property disputes are well known to the Georgian side and for refugees from Abkhazia and Tskhinvali region. Therefore we will not discuss it in details.


We are more interested in a direct meaning of the statement made by Bagapsh. The leader of Abkhazian secessionists stresses that Abkhazia is an independent country and it should be guided by norms of international law.

And it is well known that international law does not just resolve property disputes. Norms of International law puts many responsibilities and obligations on a state if indeed this state is a real subject of international law. And mainly thee obligations and responsibilities are expressed in signing and conduction of bilateral and multilateral agreements with foreign countries. The same principle exists when becoming a member of international organizations. A state as an subject of international law and a member of certain international organizations is obliged to abide by requirements of the charter of this organization (for example the UN, OSCE and so on).

It is a fact that authorities of neither Abkhazia nor South Ossetia take into account any of the principles, resolutions of international organizations for a very simple reason that they are not independent states and respectively, level of their responsibility is very low.

Therefore assertion made by Sergei Bagapsh about independence of Abkhazia and abidance by norms of international law is very doubtful. It is obvious that behind this artificial independence there is hidden great dependence on Russia. To be more specific, there are occupational regimes in Abkhazia and Tskhinvali region and self-proclaimed republics are a certain type of quasi-states.

It cannot be ruled out that some Abkhazian, Ossetians or Russian reader may not be pleased by this opinion.

Let's turn to theories and practice of international law to understand terms and propositions. What does occupation mean? What criteria are used to determine it? What are mechanisms of international and juridical recognition and finally, whether Abkhazia and South Ossetia are subjects of law?

Occupied territories or subjects of international law?

The modern international law clearly specifies a term of occupation and circumstances around it. Occupation (meaning annexation in Latin) is a temporary stay of armed forces of one state on territories of another state. Occupational regime is determined by conventions of Geneva of 1899, 1907 and 1949. Experts believe that main characteristics of occupation are existence of aggressor-state and state-victim that was caused by an armed conflict, a war between them. During the occupation there are armed forces of an aggressor state deployed on territories of state-victim and these armed forces are actively involved in governance and control of the occupied territory. During the occupation in order to disguise its aggressive intentions aggressor states often create local "governments" although their status is illusory and symbolic.

Is Georgia a victim state of Russian aggression? Of course it is.

a) Some units of the Russian Armed forces are on Georgian territory - Abkhazia - were deployed since 1992. And although later they were substituted by so-called peacekeeping forces they were practically occupational forces. And additional unauthorized introduction of Russian armed forces into Abkhazia significantly lowered security level n the region and in the end caused escalation of the confrontation;
b) Almost the same was repeated in "South Ossetia". Although there was the Georgian contingent in the three-side peacekeeping forces deployed in Tskhinvali region Russian army always dominated there. And events of the August 2008 war that took place on the territory of Georgia it was confirmed that indeed according to international law Russia was classic aggressor and occupant state and Georgia was a state-victim.

After the black events of August 2008 we, Georgians, call Abkhazia and South Ossetia territories occupied by Russia. While the west... well, the west juridically indeed considers those secessionist regions as part of Georgia but it often acts in zigzags as though it is not confident and does not acts strictly when it comes to taking concrete steps... It is indeed laudable that recently there seems to appear positive processes. And with this regards there was a breakthrough. First it was the press service of the White House and then Secretary of State Hillary Clinton while being on a visit in Tbilisi called Georgian regions -Abkhazia and Tskhinvali region - "Georgian territories occupied by Russia". But unfortunately the same has not been done by European parliament when the above-mentioned term disappeared from the final version of the recently approved resolution.

And indeed if we consider white and dark sides of the international politics this position will be easy to understand. Europe is more concerned with its own interests rather than with state of Georgia.

Double politics? Yes, it is so. Big countries of Europe sympathize with Georgia; they express their "concern" and support us with their words but still refrain from imposing sanctions on the Kremlin. Leaders of France, Germany, Italy and ether European countries consider tandem of Putin and Medvedev to be their friends ... And thus Moscow feels good in this situation. What one can do when both Americans and Europeans still need Russia? Let's remember what was said by Barack Obama at the press conference with Dmitry Medvedev in Washington. "Our two countries continue to disagree on certain issues, such as Georgia, and we addressed those differences candidly, But by moving forward in areas where we do agree, we have succeeding in resetting our relationship, which benefits regional and global security". Possibly, Barack Obama was being political correct and did not called his counterpart openly an "occupant" but despite that lenient and conciliatory background of the political "reset' we should probably retain some hope that above-mentioned "breakthrough" will become dynamic and irrevocable.

Maybe the time will come when the White House would threaten the Kremlin with sanctions because of Georgia and would compel awaken Russian bear to go back to its den.

But this is a reality and this is modern diplomacy. Double politics always has been and will be in international politics. To be honest we would probably resort to double politics in certain circumstances if there would be a need for this. But taking all necessary precautions. Unselfish action, charity and philanthropy are very rare in diplomacy. We may not be aware of this but there is a far-reaching pragmatic strategy behind allegedly good tactical step made by every country.

Let's return to problematic of Abkhazia and South Ossetia being subjects of law.

There are two theories of recognition of sovereign state in international law - declarative and constitutive.
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According to declarative theory a state is sovereign provided that the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states

As we can see the criteria do not mention that a new state should be recognized by other country. More, the third clause of the convention directly says that "the political existence of the state is independent of recognition by the other states".

Declarative theory is based on the convention that was signed in Montevideo at the 7th Pan-American summit in 1933. It is interesting that at the time "Montevideo convention" was signed by 18 countries of North and South America including the United States.

Today experts consider the convention to be not enough. Accordingly, "Montevideo convention" is outdated and it is almost never used in international relations practice, namely during recognition of a certain country.

According to constitutive theory a state, notwithstanding a fact that it has permanent population and government, as well as territory and desire to establish relations with others, can only become a subject of international law if it is recognized as independent by other states.

Today it is constitutive theory principle that is used in international politics when recognizing independence of a certain state or transferring it into a subject of international law.

At first glance legal status of Abkhazia and South Ossetia that are willing to cede from Georgia complies with requirements of constitutive theory but it is illusive.

Let us consider this. Can Abkhazia and South Ossetia be considered subjects of international law if both rebellious Georgian regions are considered a part of Georgia by an absolute majority of the UN member-states - 188 out of 192 – and if their "independent statehood" depends of forces of a foreign country (Russia), if their so-called independence is "recognized" by only the occupant state and three bribe-taking and dictatorial regime of far away lands (Nicaragua, Venezuela and Nauru)? Of course, not.

Premature states

There are more than enough facts in the history of diplomacy about existence of premature states that were created and recognized during occupation. For example, in 1941 when the armed forces of the Third Reich entered Yugoslavia and occupied it German occupants supported creation of Ustashe Croatian state and its recognition as a "subject of international law". Germany compelled its satellites – Italy, Japan and others – to establish "diplomatic relations" with supposedly independent part of Yugoslavia that was in reality occupied by them. But all this only lasted four years. Situation was approximately the same in the province of China – Manchuria - when in 1933 Japan occupied it and created an "independent state – Manchukuo. It is an interesting fact that Manchukuo was recognized by 23 out of 80 countries that existed then and even established diplomatic relations with it, including the Soviet Union. But despite such solid number of those that recognized it Manchukuo disappeared from the political map of the world in 1945 – Manchuria returned to China.

We should also remember precedent of Cyprus. When in 1947 Turkey, under the pretext of protection of its compatriots from Greeks, deployed troops on the island and carried out occupation of the northern part of the island. Later it supported a declaration of independence of "the Turkish Republic of Northern Corpus" and in 1983 it established "diplomatic relations" with it. Today there are embassy and consulate of "Turkish Republic of Northern Cyprus" in Ankara. And there is Turkish embassy in Lefkosia (Turkish part of Nicosia – capital of Cyprus) as well as thousands of occupational Turkish troops deployed on military bases. Turkish leaders are experiencing problems even today because of that mistake that they made in 1983. Recep Tayyip Erdogan is often reminded that his government supports northern Cyprus separatists unlawfully and in violation of norms of international law.

Instead of conclusion

The above-mentioned examples allow us to say that "indene dent" statehood of Abkhazia and South Ossetia and their being "subjects of international law" is just an illusion and only state of international political affairs determines how long they would exist. Using medical language we can say that life of the Sukhumi and Tskhinvali regimes might be supported by artificial ventilation and reviving injections for several years but their lethal end is still inevitable.

 


 
 
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