© Dr. V.A Chirikba. The international legal status of the Republic of Abkhazia
in the light of international law. Paper read at the conference “Independence of Abkhazia and Prospects for the Caucasus” organized by the Friends of Abkhazia Civil
Initiative. Istanbul, Bilgi University,
30 May 2009.
Dr.
Viacheslav A. Chirikba
The
international legal status of the Republic
of Abkhazia in the
light of international law.
On
26 August 2008 the Russian Federation
officially recognized the Republic
of Abkhazia, together with the Republic of South Ossetia. Following this move, on
5 September 2008 the second country which recognized both South Caucasian
republics was the Republic
of Nicaragua. The
former political act elevated Abkhazia to the level of a recognized state.
The latter act, importantly, immediately took Abkhazia out of the vicious
circle of the Cyprus
scenario, whereby the Turkish Republic of Northern Cyprus is recognized by one state
only.
The
significance of the recognition of Abkhazia by two UN member states, one of
which is one of the world’s great powers and a permanent member of the UN
Security Council, is difficult to overestimate. After decades of strenuous
efforts and sacrifices on the part of the whole Abkhaz people, after a bloody
war and harsh international blockade, Abkhazia finally managed to achieve the
status of a recognized nation, which firmly secured its safety and political
future.
The
move by Russia caused
various reactions from a number of governments across Europe, Asia and the Americas,
many of which were disapproving or strongly negative. A perusal of these
reactions indicates that the main objection against the recognition of the
independence of Abkhazia is legalistic: that such recognition presents a
breach of international law, namely, the violation of the territorial integrity
of Georgia
within its internationally recognized borders. Remarkably, this same charge
of the violation of the territorial integrity of a UN member-state did not
hold in the case of Kosovo, and extremely negative reactions on Abkhazia’s
recognition came from those governments which in the same year recognized the
independence of this Serbian province. The argument they put forward in
defence of their position on Kosovo and against the recognition of Abkhazia
is quite arbitrary: the case of Kosovo is sui generis and thus
cannot be applied to any other cases and used as a precedent.
As
the main argument adduced by various governments and some international
organizations (e.g. by the European Union) against the recognition of
Abkhazia is legalistic – the breach of international law, I shall comment on
the legal aspects of Abkhazia’s independence, drawing on major textbooks on
international law and the specialized literature.
I
shall structure my paper in the form of questions, to which I will try to
provide by necessity short answers.
1.
Did Abkhazia have a history of statehood before it became a part of the
Georgian SSR?
The
statehood of Abkhazia, before Joseph Stalin made it a part of the Georgian
SSR in 1931, is based on a long and almost uninterrupted historical
tradition. During the 8th-10th centuries Abkhazia was a Kingdom, ruled by the dynasty of the
Leonides, and from the 13th century up to 1864 – a Principality, ruled by the
princely dynasty of the Chachbas, whose representative, Safarbey/Georgy, in
1810 put the independent Abkhazian Principality under a Russian protectorate,
absolutely independently of the neighbouring Georgian statelets of the time.
The Abkhazian Principality was abolished by Russia in 1864. After the Russian
revolution of 1917, the Abkhazians formed the Abkhazian People’s Council – an
autonomous body of power, which was replaced by the Soviet bodies of power
when Abkhazia became a part of the Soviet Union.
2.
Was Abkhazia a state during the Soviet period?
In
the 20th century, within the Soviet framework, the statehood of Abkhazia is
declared in all Abkhaz, Georgian and Soviet constitutions. In 1921 Abkhazia
was proclaimed a Soviet
Republic, and the
Georgian Revolutionary Committee recognized the
independence of the Soviet Socialist Republic of Abkhazia. Though in the same
year Abkhazia was compelled to become associated with the Georgian SSR on the
basis of a confederal “Treaty of Union”, its 1925 Constitution stipulated a
very high level of political autonomy, including the right to secession from
the USSR.
Only in 1931, at Stalin’s behest, did Abkhazia lose its SSR status, when it
was downgraded to that of an Autonomous
Republic within the
Georgian SSR. Notwithstanding this, within the Soviet constitutional
framework, the Abkhazian ASSR was regarded as a State: it had state symbols,
a government, elected parliament and ministries.
3.
Did the Abkhazian ASSR have the right of secession from the Georgian SSR?
The
Soviet law on secession, adopted on 3rd April 1990 and called “On the
procedure of the settlement of questions connected with the withdrawal of a
union republic from the USSR”, allowed the Autonomous republics and
Autonomous Regions to decide independently whether or not to join the
secession of the Union republic in which they are situated. At the all-Union
referendum held on 17 March 1991, 52.4% of the electorate of Abkhazia voted
for the preservation of the reformed USSR. At the same time the
non-Georgian population of Abkhazia did not take part in the all-Georgian
referendum on independence from the USSR held on 30 March 1991. This
means that on the results of the 1991 referendum Abkhazia had the legal right
to separate from Georgia,
staying in the USSR,
whereas Georgia on 9 April
1991, on the basis of its own referendum, declared the restoration of the
independent Republic
of Georgia. Thus,
according to the Soviet law of 1990, Abkhazia had a legal right to secession
from Georgia, although it
did not get a chance to realize it because of the disbanding of the Soviet Union.
4.
Did Abkhazia have any legal inter-relations with Georgia in the post-Soviet period
prior to its recognition?
No,
there is not a single legal document co-signed by Abkhazia and Georgia which
would in any way bind these two entities within a common state framework.
This fact was indirectly acknowledged in the Moscow Agreement of 4 April 1994
signed by Georgia, Abkhazia,
Russia, the
UN and OSCE called “Declaration
on measures for a political settlement of the Georgian/Abkhaz Conflict”, whose
Article 8 read: “A phased action programme will be worked out and proposals
on the reestablishment of state- and legal relations will be
elaborated”. Abkhazian politicians point out that the need to reestablish
state- and legal relations between Abkhazia and Georgia could mean only one
thing: that such relations were non-existent.
5.
Did Abkhazia manage to establish itself as an independent polity before its
recognition by Russia and Nicaragua?
After
1993, following the victory over the invading Georgian forces, Abkhazia
formed itself as a virtually independent state with a democratic form of
rule. The constitution of sovereign Abkhazia was adopted in 1994 and
reaffirmed in an all-Abkhazia referendum in 1999. The same year, in 1999, the
Act of State Independence of Abkhazia was adopted. Prior to its recognition
in 2008, Abkhazia had a constitution, flag, national anthem and other state
symbols. It had an elected parliament, a President, its own independent foreign
policy, a small but efficient army, interior and border control troops, a
judicial system and state-supervised social and economic institutions.
Economically,
even under the conditions of a harsh embargo, Abkhazia managed to reach a
level of economic activity exploiting its lucrative tourist infrastructure,
subtropical agriculture and rich natural resources (forestry, fishery, etc.).
Politically,
it has held since the end of the war of 1992-1993 three parliamentary and two
presidential elections, the last of which was won by the opposition. It has a
comparatively high level of political pluralism, a multiparty system and a
vibrant NGO community. From the point of view of democratic freedoms, even
before recognition Abkhazia was indexed by Freedom House as “partially free”,
on the same level as Georgia,
and higher than quite a number of internationally recognized post-Soviet
states. It has free media, freedom of expression of religious beliefs and
cultural institutions (e.g. schools) catering for the needs of various ethnic
groups residing in the republic.
6.
Does Abkhazia meet internationally accepted criteria for qualification as a
State?
From
the point of view of international law, Abkhazia meets all the criteria laid
down for being qualified as a State. According to article I of the 1933 Montevideo
Convention on Rights and Duties of States, “The State as a person 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”.[1] The US State
Department outlined in its statement of November 1976 its conception of
statehood in the following terms: “effective control over a clearly-defined
territory and population; an organized governmental administration of that
territory; and a capacity to act effectively to conduct foreign relations and
to fulfil international obligations”.[2] Opinion No. 1 of the Badinter
Arbitration Commission on Yugoslavia defines a State “as a community which
consists of a territory and a population subject to an organized political
authority; that such a State is characterized by sovereignty”.[3]
Abkhazia
meets all these conditions. It has a permanent population, a defined
territory, clearly defined and undisputed borders, an elected parliament and
a stable government, which solely exercises effective control and
administration over the whole territory of the Republic of Abkhazia.
Abkhazia is sovereign and is not controlled by any foreign power. It has its
own Constitution, flag,
national anthem and other state symbols, as well as its own army and judicial
system.
Abkhazia
is capable of engaging in international relations, as enshrined in Articles
47 (8) and 53 (4) of its Constitution. It has its own independent foreign
policy and a Foreign Ministry, which is engaged in international contacts.
Abkhazia is a signatory to politically binding international documents,
agreements and treaties.
James
Crawford (1979: 70) points out that “As a matter of general principle, any
territorial entity formally separate and possessing a certain degree of
actual power is capable of being, and ceteris paribus, should be
regarded as, a State for general international law purposes. The
denomination sui generis often applied to entities which, for some
reason, it is desired not to characterise as States is of little help”. He
also asserts that “the criterion for statehood of seceding territories
remains in substance that established in the nineteenth century: that is, the
maintenance of a stable and effective government over a reasonably well
defined territory, to the exclusion of the metropolitan State, in such circumstances
that independence is either in fact undisputed, or manifestly indisputable”
(Crawford 1979: 266).
7.
What can be said about Abkhazia’s (non-)recognition in the light of
international law?
There
are two schools of thought regarding the issue of recognition of new states.
According to the more liberal, so-called declarative theory, “recognition of
a new State is a political act which is in principle independent of the
existence of the new State”.[4] Article 3 of the Montevideo Convention, which
has been set as basis of Article 12 of the Charter of the Organisation of
American States (1948), reads: “The political existence of the State is
independent of recognition by other States. Even before being recognized, the
State has the right to defend its integrity and independence, to provide for
its preservation and prosperity, and consequently to organize itself as it
sees fit, to legislate concerning its interests, to administer its services,
and to determine the jurisdiction and competence of its courts”.[5] The
definition of a state by the American Law Institute also does not include any
reference to external recognition, it being “an entity that has a defined
territory, and a permanent population, under the control of its own
government, and that engages in, or has the capacity to engage in, formal
relations with other such entities”.[6]
As
noted by D.W. Greig (1976: 97, 122), recognition is more a political fact of
international life than a fundamental legal principle. Gerhard von Glahn (1996:
66) also points out that “despite much reasoned argument to the effect that
the recognition of new states (and new governments) is a legal matter, the
majority of writers as well as the practice of states agree that it is,
rather, a political act with legal consequences”.
Indeed,
“A new state comes into existence when the community involved acquires the
basic characteristics associated with the concept of a state: a defined
territory, an operating and effective government, and independence from outside
control, etc. Because all these aspects of statehood involve ascertainable
facts, the dating of the beginning of a new state is mainly a question of
fact and not law. The new state exists, regardless of whether it has been
recognised by other states, when it has met the factual requirements of
statehood” (von Glahn 1996: 68-69). Furthermore, "in most cases the
establishment (even the violent establishment) of a new state or government
is not a breach of international law; there is no general rule of international
law which forbids a group of people ... to break away and form a new state,
if they have the strength to do so. In such cases the existence of a state or
government is simply a question of fact, and recognition or non-recognition
usually have no legal effects” (Malanczuk 1997: 84). “If world-wide
recognition does not exist, the seceding territory may still constitute a
State in the light of international law, for recognition is generally not
considered a conditio sine qua non” (Duursma 1996: 92). Opinion 1 of
the Badinter Commission reads: “the existence or disappearance of the State
is a question of fact; that the effects of recognition by other States are
purely declaratory”.[7] As noted in this connection by the Dutch
international lawyer Bart Driessen (1997: 6), “The recognition of a state by
other states would seem to be no more than evidence that the four above-mentioned
criteria are fulfilled; formal recognition by the Government of Georgia, the
United Nations, or third states would not create the state of
Abkhazia. At the same time, non-recognition may be an expression of
disapproval with some aspect pertaining to the new state”.
Another
dominant theory of recognition, the so-called constitutive theory, considers
recognition as an important trait of a State; according to it, “the rights
and duties pertaining to statehood derive from recognition only”.[8]
The
constitutive theory does not specify how many states should recognize the
country to be qualified as a State. Therefore, even according to this more
conservative and restrictive theory, Abkhazia, having been recognized by two
UN member states, must be regarded as a state under international law, as it
fulfils all the formal criteria needed for statehood, including diplomatic
recognition by other states.
However,
irrespective of the choice of theory, be it declarative or constitutive, any
objective analysis of the current internal and international position of
Abkhazia will ascertain the fact that it is a sovereign polity, which, as it
is, meets all formal requirements needed for its recognition as a State. The
current non-recognition de jure of the independence of Abkhazia by
the major world powers except Russia
is used by them as a form of their disapproval of, or objection to, the existence
of an independent Abkhaz
State.
This
disapproval is not based on international law, but rather on political and/or
geopolitical considerations. Non-recognition, however, does not nullify the
existence of the Abkhaz State, inasmuch as de jure recognition by Georgia or by any other government will not
create the Abkhaz
State: it exists
independently of these factors.
Of
course, nobody would challenge the importance of external recognition for the
normal functioning of a state. In certain cases, recognition can consolidate
the independence of a new state, especially in doubtful, controversial, or
unstable situations, whereas non-recognition can sometimes lead to the
proclaimed state’s failure to establish itself.
8.
Is the international position of Abkhazia undermined because of its violent
secession from Georgia?
The
UN Secretariat, at least in the past, maintained the following position on
Abkhazia’s recognition, as expressed in the words of the then Secretary-General
Boutros Ghali: “It has been made clear to the Abkhaz side in the negotiations
that independence achieved by force of arms is unacceptable to the
international community”.[9] Yet, despite this position, one can argue that
the independence of Abkhazia cannot be undermined by the fact that its
secession from Georgia was the result of a military conflict with the armed
forces of the former metropolis. At least three arguments can be adduced in
support of this view.
Firstly,
the secession of Abkhazia can be justified by “the oppression theory”,
according to which “the severity of a State’s treatment of its minorities ...
may finally involve an international legitimation of a right to secessionist
self-determination, as a self-help remedy by the aggrieved group”.[10]
There
is undisputed and abundant evidence which testifies to the harshness of Georgia’s
treatment of the Abkhazians both during the Soviet and in the early
post-Soviet periods.
In
the Soviet period, especially between 1936 and 1953, the Abkhazian minority
population was subjected by the Georgian government under Lavrenty Beria and
then by his successors to forced assimilation policies. The Abkhaz language
was forbidden in schools and official use and, instead, the Georgian
language, unknown to the majority of the Abkhazians, was imposed. A
large-scale resettlement policy was carried out, moving tens of thousands of
Georgians from Georgia
proper to Abkhazia, in order to shift the demographic balance
in Abkhazia in favour of ethnic Georgians. Many place-names in Abkhazia were
Georgianised or replaced by newly coined Georgian ones. A large majority of
the Abkhaz intellectuals, politicians and public figures were convicted and
killed on fabricated accusations. There existed plans to exile the entire
Abkhaz nation to Siberia, following the
Chechens and Ingush, though they were not realized. A special “theory” was
designed in Tbilisi
to substantiate the claim that Abkhazians were not native to Abkhazia, which
would justify their deportation. To sum up, in the words of the American
historian Darrel Slider, “Beria launched a campaign apparently designed to
obliterate the Abkhaz as a cultural entity”.[11]
After
the collapse of the Soviet Union, the ultra-nationalist government led by
Zviad Gamsakhurdia proclaimed the slogan of “Georgia for the Georgians”. The
leaders of the State Council of Georgia, which came to power in Tbilisi after the violent deposition of President
Gamsakhurdia in a military coup, declared that there would be no autonomies
in Georgia.
Despite the Abkhaz proposals to establish federal relations with Georgia, the
State Council headed by Eduard Shevardnadze started on 14 August 1992 a
full-scale war against
Abkhazia. During this war four per cent of the entire Abkhaz population,
among whom were many civilians, were killed. Abkhaz
cultural institutions were pillaged and destroyed, and
national shrines such as Abkhazia’s National Archive and the Institute of Language, Literature and
History were deliberately burned to the ground. The Georgian top military commander and the Head of the Georgian
civilian administration of the occupied part of the territory of Abkhazia
publicly threatened the Abkhaz nation with genocide. All this, in the eyes of
the Abkhaz people, represents a consistent policy designed at the destruction
of their nation in order to render unchallenged the Georgian possession of
Abkhazia.
Secondly,
from the Abkhaz perspective, neither the Georgian government of President
Gamsakhurdia nor the government of the State Council of Georgia, which
replaced the government of Gamsakhurdia, represented the Abkhaz people (and
indeed the other non-Georgian communities of Abkhazia). Under the Georgian
election law of 1990, the participation of Abkhaz or South Ossetian political
parties in the pan-Georgian elections was banned with the argument that they
represented ‘regional’, rather than pan-Georgian parties. At the 17 March
1991 all-Union referendum, 52.4% of the population of Abkhazia voted in
favour of a reformed Soviet Union. The
Abkhaz and large sections of the remaining non-Georgian population of
Abkhazia did not participate in the all-Georgian referendum on independence
from the Soviet Union held on 31 March 1991.
The military coup in Tbilisi, which coincided
with the dissolution of the Soviet Union,
deposed President Gamsakhurdia. The junta dissolved the Georgian parliament
and established a Military Council, which soon gave over power to a State
Council headed by Eduard Shevardnadze. All these new structures, which had no
legal basis whatsoever in the Georgian Constitution, were non-representative
for the population of Abkhazia. The war against Abkhazia was initiated by
these political forces.
Thirdly,
as a people, the Abkhazians are entitled to the right of self-determination,
including external self-determination.
One
can argue that these three considerations (oppression by the majority;
illegitimate authority of the Georgian leadership in 1992; right to
self-determination) override the principle of ‘non-use of force’, adduced by
the UN against recognition of Abkhazia.
Moreover,
the secession, even violent secession (i.e. via the use of force) of a part
of the territory of a state aiming at establishing another state, is not
prohibited by international law. The UN International Law Commission limited
the principle of non-recognition of territorial acquisition by illegal force
to acquisition ‘by another State’, but did not consider it as a valid
principle in the case of secession (cf. Crawford 1979: 267). One can cite as
an example the violent secession in March 1971 of East Pakistan and its unilateral
declaration of independence under the name of Bangladesh, which was soon
recognized by many states (see on this case also below). Both international
law and practice prove that secession “is a domestic matter, and therefore a
legally neutral act in international law”. “An ethnic group in one state is
at liberty, from the standpoint of international law, to secede and form its
own nation-state” (Musgrave 1997: 210, 211).
This
position is shared by a wide range of scholars. Thus, Hersch Lauterpacht (1948:
8) emphasised that “international law does not condemn rebellion or
secession aiming at the acquisition of independence”. Michael Akehurst (1987:
53) asserts that “there is no rule of international law which forbids
secession from an existing state; nor is there any rule which forbids the
mother-state to crush the secessionary movement, if it can. Whatever the
outcome of the struggle, it will be accepted as legal in the eyes of the
international law”.
Some
authors point out that the international acceptance of secession is more
easily obtainable if the seceding group constitutes a people, who occupy a
territory already delimited by internal administrative borders. Thus, Jorri
Duursma (1996: 99-100) points out that “Contrary to what some distinguished
writers have maintained, international State practice does accept a right of
secession. Secession is inherent in the right of self-determination. It is
not prohibited by international law to seek secession if one constitutes a
people and/or fraction of a people and if in addition one inhabits a certain
territory delimited by international and/or internal administrative
borders.”
Paradoxically,
in the condition of absence of any rules of international law managing the
balance between the right of self-determination and the principle of
territorial integrity, “the present international legal situation encourages
the use of force in order to make demands for secession successful”.
Furthermore, “if the State authorities are the first to use violence, breaching
fundamental human rights or even the prohibition of genocide, then the
secessionists may offer armed resistance. In the absence of international
recognition of the seceding State, the civil war, once started, will
continue until a de facto solution has been imposed by force. Either
the metropolitan State has regained control over the seceding territory, or
the secessionists have stabilized their authority and have managed to secure
the exercise of all elements of statehood, that is, they have created an
independent State” (cf. Duursma 1996: 104, 426).
9.
Is Abkhazia a subject of international law?
Even
before its recognition, following its establishment as an independent state,
Abkhazia acquired a separate international legal personality. The international
legal status of Abkhazia is declared in its 1994 Constitution. The
non-recognition of Abkhazia de jure has not changed this situation.
As stated by the American Law Institute, “An entity not recognized as a State
but meeting the requirements for recognition has the rights of a State under
international law in relation to a non-recognizing State.”[12] Crawford also
points out that “States do not in practice regard unrecognized States as
exempt from international law, and they in fact do carry on a certain, often
quite considerable amount of, informal intercourse”. He suggested that “The
tentative conclusion is that the international status of a State ‘subject to
international law’ is, in principle, independent of recognition” (Crawford
1979: 24). Moreover, as asserted by Duursma (1996: 101), “If the
secessionists have vanquished the central State authorities …, the seceded
territory will have acquired an international status”.
After
the recognition of Abkhazia by two UN member-states, its international legal
personality is now beyond any doubt, and any assertions to the contrary can
be argued against on solid legal grounds.
10.
Did Russia
violate international law by recognizing the independence of Abkhazia?
In
the preceding paragraphs I showed that after the war of 1992-1993 Abkhazia
was not tied to Georgia
by any legally binding document within one state structure. In the post-war
period, Abkhazia evolved as a fully-fledged state with all state structures
and institutions, with democratic presidential and parliamentary elections, a
stable political system and a viable economy. Georgia,
though it claimed the territory
of Abkhazia, was not in
a position to recover it by political or military means. There was thus a
situation of political impasse, which could have been perpetuated
indefinitely, as the situation in cases like Taiwan
or Northern Cyprus proves. The recognition
of Abkhazia and South Ossetia by the Russian
Federation came after Georgia’s
military assault on South Ossetia and a
threat to attack Abkhazia. This recognition came as a political means to save
these two small nations from military attacks and oppression by Georgia.
Thus, the need to save the oppressed minority justifies the political act by Russia, just as the Western powers justified
their recognition of the independence of the former Serbian province of Kosovo
populated by the Albanians.
The
fact is that the territorial integrity of Georgia within its Soviet borders
could not be maintained and was in practice unattainable by either political
or military means. The separation of Abkhazia and South Ossetia was a fait
accompli long before their formal recognition by Russia. By
the time of the recognition Georgia
effectively represented a disintegrated state.
11.
What can serve as legal precedents for the recognition of Abkhazia?
There
are at least four cases in modern history which can be considered similar to
the situation obtaining with regard to the recognition of Abkhazia: Bangladesh, Slovenia,
Croatia
and Kosovo.
Bangladesh, formerly the province
of Eastern Pakistan, separated from Pakistan in March 1971 and declared its
independence under the name of Bangladesh. Its independence was
recognized as of February 1972 by 47 countries, despite the fact that this
separation was reached ‘by force of arms’ and with foreign military help, and
despite the protests of Pakistan
(UN member since 1947), which insisted that Eastern Pakistan/Bangladesh was
its inalienable territory. Among the reasons for the recognition of Bangladesh were the failure of Pakistan to suppress the secessionist movement
(largely due to military assistance given to the rebels by India) and, on the diplomatic level, the
lobbying activity of such influential sponsors of Bangladesh’s
independence as India
and the Soviet Union.[13]
Similar
situations can be seen in the recognition of Slovenia
and Croatia.
After the Communist Party of Yugoslavia collapsed in 1990, the US and
European states publicly supported the preservation of the Yugoslav
federation. However, at the end of June 1991, Slovenia
and Croatia
unilaterally declared their independence. In December 1991, Germany
unilaterally recognised the independence of the two separatist republics. The
states of the European Community had no option but to follow. This stimulated
the speedy disintegration of the Yugoslav Federation. The European
Community-negotiated Brioni agreement, of July 1991, and acceptance, in
December 1991, of the German policy of ‘preventative recognition’ together ended
the effective sovereignty and territorial integrity of the Yugoslav state.
The European Community had abandoned its previous support for the federal
government. The EC established the framework for the disintegration of the
federal state, calling into existence new states along the lines of the
republican boundaries.[14]
The
freshest case is that of the province
of Kosovo, whose separation from Serbia, aided
by NATO bombardments of this former Yugoslav republic, ended on 17 February
2008 with the declaration of independence. This declaration was met, despite
the Serbian government’s energetic protests against the violation of its
territorial integrity, with speedy recognition, starting from 18 February
2008, by the USA
and many European and other countries, more than 50 at the latest count. This
was the last accord in the drama of the dismemberment of Yugoslavia.
Conclusions.
The
main conclusions that can be drawn from this discussion are:
1.
Abkhazia has a long history of statehood, either independent or autonomous,
before it became in 1931 a part of the Georgian SSR within the framework of
the Soviet Union.
2.
During the Soviet period, Abkhazia maintained its statehood: first (between
1921 and 1931) as a union republic on an equal footing with Georgia, and
from 1931 until 1991 – as an Autonomous republic within the Georgian SSR. The
Abkhazian ASSR could thus not be regarded as a regular Georgian province
populated by an ethnic minority, as holds with Megrelia, Svanetia or
Dzhavakheti, but rather as an autonomous State, having such state symbols as
a Constitution, flag and state emblem, as well as an elected parliament,
cabinet of ministers, police force and courts; its borders, according to its
Constitution, could not be altered without the consent of the Abkhazian
government. ff
3.
According to the Soviet law on secession of April 1990, Abkhazia had a legal
right to secede from Georgia
in case the latter wanted to secede from the USSR,
and it was only the sudden dissolution of the Soviet
Union that prevented this from happening.
4.
Given that during the last years of the USSR Georgia abolished all Soviet
laws, including
those
by which Abkhazia was attached to it, Georgia lost any legal basis of
its possession of Abkhazia. In the post-Soviet period prior to Abkhazia’s
recognition, there has been not a single legal document co-signed by Abkhazia
and Georgia which would in any way bind these two entities within a common
state framework. The virtual lack of any such legal document was implicitly
indicated by the 1994 Moscow
agreement, which spoke of the future plans on the reintegration of these two
state entities.
5.
In the light of international law, already in the post-war period
(1993-2008), before its recognition by Russia
and Nicaragua
in 2008, Abkhazia met all internationally accepted criteria to be qualified
as a State. Even under the conditions of non-recognition and blockade, over a
period of 15 years it was effectively a self-governed independent polity and
subject of international law.
6.
The recognition by Russia
and Nicaragua of Abkhazia cannot be regarded as a breach of international
law, contrary to what has been asserted by many governments.
Firstly,
this recognition can be justified by the “oppressive” policy of Tbilisi against the South Ossetian and Abkhazian
peoples, which manifested itself in the Georgian treatment of Abkhazians and
South Ossetians during the Soviet period and in the wars waged by Tbilisi in 1991-1993 against South Ossetia and Abkhazia,
and most recently, in 2008, against South Ossetia.
Secondly,
since 1993 Georgia
has lost any control whatsoever over Abkhazia’s territory. Politically,
negotiations under the UN aegis aimed at reintegration of both states in a
single state structure initiated in 1993 and continued over a decade
completely failed and were deadlocked. Militarily, several attempts by
Georgian military forces to invade Abkhazia and re-establish its control
there – in 1998 and 2006 – also failed. Economically, the harsh embargo
imposed in 1996 on Abkhazia at Georgia’s insistence by the CIS countries and
maintained essentially by Russia and Georgia, also did not produce any
political fruits; on the contrary, this inhuman blockade against war-ravaged
Abkhazia, which added to the human sufferings of the population of Abkhazia,
even further separated Abkhaz and Georgian societies.
It
is obvious that by August 2008 Georgia represented a de facto
disintegrated state, and its territorial integrity within the former borders
of the Georgian SSR was not attainable by political, economic or military
means. The recognition of Abkhazia and South Ossetia by Russia and Nicaragua only formalized the
factual disintegration of the former Georgian SSR.
7.
In view of the declarative theory of statehood, at the moment of its
recognition Abkhazia had already been for a period of 15 years a
self-governed independent polity outside of any Georgian jurisdiction and
control. In the view of the constitutive theory, Abkhazia became a
fully-fledged state from the date of its recognition by the Russian Federation
on 26 August 2008. This recognition only formalized and acknowledged the fact
of the effective existence of this independent polity.
8.
There are serious reasons to believe that the non-recognition of Abkhazia by
other states, despite their declarations, is not based on international law,
but rather on political and geopolitical considerations.
9.
In the light of international law, after its recognition by two UN
member-states, Abkhazia can be regarded as a fully-fledged independent State
and subject of international law. Its broad international recognition, which,
in my view, is imminent, will undoubtedly serve the achieving of political
stability in Western Transcaucasia and will create excellent conditions for
the economic and social development of this part of Europe.
References.
Akehurst,
Michael. 1987. A Modern Introduction to International Law. London: Allen and Unwin.
Buchheit,
Lee C. 1978. Secession. New Haven: Yale University
Press.
Chandler,
David. 2000. Western Intervention and the Disintegration of Yugoslavia,
1989-1999.
In:
Philip Hammond, Edward S. Herman (Eds.). Degraded Capability: The Media and
the Kosovo Crisis. London,
Pluto Press, pp. 19-30.
Crawford,
James. 1979. The Creation of States in International Law. Oxford: Clarendon Press.
Driessen,
Bart. 1994. Background Briefing for the Government of Abkhazia on Types of
Autonomy, Federation and Confederation. Unpublished paper, 24 pp. --1997.
Legal Opinion on the Validity and Interpretation of the 4 April 1994
Georgian-Abkhaz Agreements. Unpublished paper, 15 pp.
Dugard,
John. 1987. Recognition and the United Nations. — University of Cambridge
Research
Centre
for International Law. Hersch Lauterpacht Memorial Lectures. Cambridge: Grotius Publications Limited.
Duursma,
Jorri. 1996. Fragmentation and the international relations of
Micro-States. Selfdetermination and statehood. Cambridge:
Cambridge University Press.
Glahn,
Gerhard von. 1996. Law Among Nations. An Introduction to Public International
Law. Boston.
London. Toronto. Sydney. Tokyo. Singapore:
Allyn and Bacon.
Gotlieb,
Gidon. 1993. Nation Against State. A New Approach to Ethnic Conflicts and the
Decline of Sovereignty. New York:
Council of Foreign Relations Press.
Greig,
D.W. 1976. International Law. London:
Butterworths.
Kapteyn,
P.J.G. et al. 1984. International Organization and Integration.
Documentenverzameling, betrekking hebbende op de Verenigde Naties, de aan
haar gelieerde organisaties en anderen internationale organisaties en
overeenkomsten. Studenteneditie. 2e druk. ’s Gravenhage: Interuniversitair
Instituut voor Internationaal Recht. T.M.C. Asser Instituut.
Lauterpacht,
Hersch. 1948. Recognition in International Law. London.
Malanczuk,
Peter. 1997. Akehurst’s Modern Introduction to International Law. London and New
York: Routledge.
Musgrave,
Thomas D. 1997. Self-Determination and National Minorities. Oxford: Clarendon Press.
Slider,
Darrel. 1985. Crisis and Response in Soviet Nationality Policy: The Case of
Abkhazia. In: Central Asian Survey, Vol. 4, No. 4, p. 51-68.
--------------------------------------------------------------------------------
[1]
Cited from: Greig (1976: 93).
[2]
Cited from: von Glahn (1996: 69).
[3]
«International Legal Materials», 31 (1992), pp. 1494-1497.
[4]
Cf. Crawford (1979: 20).
[5]
Cf. Kapteyn et al. (1984: 188).
[6]
Cited from: Gotlieb (1993: 131).
[7]
«International Legal Materials», 31, 1488 (1992); cited from: Driessen (1997:
6, fn 12).
[8]
Cf. Crawford (1979: 4).
[9]
Cf. UN document S/1994/253, p. 6.
[10]
Cf. Buchheit (1978: 222).
[11]
Slider, Darrel. Crisis and Response in Soviet Nationality Policy: The Case of
Abkhazia. In: Central Asian Survey, Vol. 4, No. 4, 1985, p. 53.
[12]
Cited from: Crawford (1979: 74).
[13]
Cf. Dugard (1987: 75-76).
[14]
Chandler
(2000: 19-30).
Dr.
Viacheslav A. Chirikba
Foreign
Policy Adviser to the President of the Republic
of Abkhazia: Dept. of Geopolitics,
Centre for Strategic Studies, Sukhum, Republic
of Abkhazia: Chief negotiator, the
Abkhaz delegation to the EU, UN & OSCE sponsored "Geneva
Discussions" (Abkhazia, South Ossetia, Georgia, Russia, US,
EU, OSCE, UN). (2008)
PhD in 1996, Leiden University, The Netherlands.
http://www.abkhazworld.com/articles/analysis/285-int-legal-status-abkhazia-vchirikba.html
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