RFE/RL: Smuggling Dispute Between Sukhumi, Tbilisi Enters Uncharted Waters, Legally
posted by circassiankama on September, 2009 as Abkhazia
Smuggling Dispute Between Sukhumi, Tbilisi Enters Uncharted Waters, Legally
Georgia says it will impound any ships delivering cargo to breakway Abkhazia using its Black Sea coast.
September 04, 2009
By Charles Recknagel
As the war of words
escalates between Georgia and breakaway Abkhazia, Tbilisi this week
sent a strong warning to any sea captains tempted to deliver cargo to
the secessionist region.
A Georgian court sentenced a Turkish captain convicted of taking fuel to Abkhazia to 24 years in jail. The charge: smuggling.
That
is a charge that Abkhazia, which has declared independence from
Georgia, would hotly dispute. Authorities in Sukhumi say that Tbilisi
has no right to police the waters offshore of Abkhazia and this week
they threatened to sink any Georgian ships trying to do so.
Meanwhile,
Russian Foreign Ministry spokesman Andrei Nesterenko on September 3
claimed Tbilisi’s blockade of Abkhazia was illegal under international
conventions. He said it was fueling tensions that could end in new
armed clashes.
"The numerous seizures by the Georgian Navy and
the ensuing arrests by the Georgian authorities of third-country
merchant ships off the Abkhaz coast are nothing but a blatant violation
of the 1982 Convention on the Law of the Sea," he said.
Tough Questions
All
this raises some tough questions for third parties tempted to engage in
commercial trade with Abkhazia, which declared independence a year ago
following the Russia-Georgia war.
Should ships from other
nations respect Georgia’s sea blockade? Or is Tbilisi acting out of
bounds by treating any shipments to Sukhumi as smuggling?
Usually, such questions are resolved by turning to international laws and conventions.
But experts say that in this case -- despite some governments' claim to the contrary -- there is little such guidance available.
Marko
Pavliha is head of the Maritime and Transport Law Department of the
University of Ljubljana in Slovenia. He says international sea law only
governs relations between recognized and sovereign states. But in this
crisis there is only one sovereign state.
“The issue is really
an internal matter or even similar to civil war," Pavliha says. "Now,
we cannot apply the UN Convention on the Law of the Sea; we cannot
apply, for example, the Paris Declaration Respecting Maritime Law of
1856, which inter alia governs also [the legality of sea] blockades;
and we cannot apply the 1909 London Declaration on Naval War.”
Case-By-Case Basis
Abkhazia
is recognized as a sovereign state only by Russia and Nicaragua. And it
is recognized by one other self-declared state, South Ossetia, which
also declared independence from Georgia following the five-day
Russia-Georgia war of August last year.
Pavliha
says that because secessionist states are not covered by current
international maritime conventions, each such crisis has to be worked
out by the international community on a case-by-case basis.
The way it happens can vary.
As
a Slovene, Pavliha cites the example of his own country, which declared
independence from Yugoslavia in 1991 and fought a 10-day war with
Belgrade. Seceding from Yugoslavia sent Slovenia into a legal limbo
much like Abkhazia’s today, with one crucial difference.
“The
crucial difference was that Slovenia was recognized virtually
immediately by many, many other countries, including the majority of
the UN members, the Vatican, and the [European Union]," Pavliha says.
"So the situation was different and Slovenia was immediately an
independent country entitled to proclaim maritime territories, whereas
in this case [Abkhazia] is officially and legally still part of one
country.”
That means that – unless Abkhazia can get a critical
mass of international recognition – it has no legal basis in current
maritime law for claiming “territorial waters” of its own.
Domestic Matter
Similarly,
Tbilisi’s blockade of its own coastline is something not covered by
current maritime law. Instead, it is a domestic matter, much like any
government’s decision to launch a police operation to interdict, for
example, drug-smuggling on its shore.
All this leaves third
parties -- such as Ankara, in the case of convicted Turkish sea captain
Mehmet Coskun Ozturk -- to work out their own responses without much
help from international sea conventions.
And that is – again -- despite everybody’s apparent desire to interpret events in terms of international maritime law.
Speaking
about Tbilisi’s imprisonment of Ozturk and the impounding of his ship,
Turkish Foreign Ministry spokesman Burak Ozugergin said on September 3
that “we think the Georgians violated international maritime law
regarding both the letter and the spirit of the law.”
But, in fact, Ankara is taking steps to work things out with through diplomats, not lawyers.
Turkish
media report that Foreign Minister Ahmet Davutoglu is expected to
personally visit Tbilisi to ask Georgia to overturn Ozturk’s
conviction. No date for the visit has been set. Law Still Catching Up
Pavliha
says one reason international maritime law does not cover secessionist
regions is that until fairly recently there were not enough such cases
to warrant it.
The UN Convention on the Law of the Sea, for example, was adopted in 1982 and came into force in 1994.
But in the meantime, the world saw a whole series of secessionist crises explode in Yugoslavia and in the former Soviet Union.
Those cases have redefined international political relations. But the body of international law has yet to catch up.
“During
the past 20 years, we have had a completely different situation as
compared to half a century ago," Pavliha says. "Half a century ago, the
trend was toward unified countries, the establishment of larger
entities like federal states and so on, whereas, beginning probably
with the fall of the Berlin Wall, [parts of] countries started seeking
independence.
"And most, not all, but many, many international
conventions, protocols and so on are somehow fitted to the previous
international situation or climate which really doesn't exist anymore.”
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