Abkhazia and South Ossetia as States: a factual fiction?

En homenaje a Citoyen, yo también voy a poner mis papers y tonteridas varias en sustitucion de entradas normales, además de reincorporarme a la red. Perdonad el inglés, by the way:

1. INTRODUCTION

The signing of the Decrees by Russian President Medvedev whereby he recognized both Abkhazia and South Ossetia as States was the climax of a turbulent summer. Through this assignment we are going to try to analyze the assertion. For that purpose, we will have to study first the concept of statehood and its main characteristics, whether self-determination plays a role in this situation, end with recognition and the inevitable conclusion.

2. STATEHOOD

States are the core elements of International Law. Despite that, there is no definition of what they are, not even in legal instruments[1]. This problem may have occurred “because the question normally arises only in the borderline cases, where a new entity has emerged bearing some but not all characteristics of statehood”[2]. However, there are some elements in order to find out whether an entity is a State, drawn upon the practice and the doctrine. For that, we have to read the formulation laid down in Article I of the Montevideo Convention on the Rights and Duties of States, 1933, which has become “the best known formulation of the basic criteria of statehood”[3], and subsequently a norm of customary law[4], not the Article itself but the elements. According to the precept we can consider that an entity is a State when it has a) permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other States.

Behind those requirements underlies the principle of effectiveness; they are trying to guarantee that the entity can act effectively[5].

2.1.A Permanent Population

We can define the population as the group of people that permanently inhabit the territory of a State and they are generally related to it by the nationality link[6]. As regards to the requirement of permanent, we can say that it does not mean that they have to be within the State all the time. It is enough to stay for a period of time[7]. It also does not relevant how much people leave.

2.2.A Defined Territory

The territory is the spatial space where the state organization exercises its own authority with fullness, excluding any State trying to claim those same powers[8]. As with the population, there is not a minimum required area for it to be considered as a State. Also, the State does not have to precise exactly limits its boundaries precisely. As the ICJ ruled in the North Sea Continental Shelf cases “[t]here is…no rule that the land frontiers of a State must be fully delimited and defined, and often…they are not”[9].

2.3.A Government

While the other two criteria can be measured with objectivity, this is the hardest to gauge and the most important; to have a Government is central for the acquirement of the quality of State. In other words, the fact that there is an effective Government means that there is a population and a territory to govern[10]. In order to achieve this criterion it is not necessary to have a specific form of government. This was confirmed by the ICJ in the Western Sahara case, which stated that there was not any in International Law which “requires the structure of a State to follow any particular pattern”[11]. That is why most scholars, and the practice has shown, linked the existence of a Government with effectivité, which can be translated as the ability of the State to enjoy “the habitual obedience of the bulk of the population”[12] and to carry out with normality the state functions (internal effectiveness) and being able to act and interact in the legal order on behalf the entity (external effectiveness)[13].

Nonetheless, if we take into account the practice of States we can perceive that effectivité is not as absolute as it may sound. The practice shows us that “the requirement of ‘government’ is less stringent than has been thought” and the right and exercise of the authority is important, not only his actual effectiveness[14].

2.4.Capacity To Enter Into Relations With Other States

This is the least useful of the four criteria used by the Montevideo Convention. As it has been expressed, this requirement is a consequence of the existence of an independent Government, because it only has the capacity to enter into relations with other states in case when there is an effective authority capable and able to interact in the international order[15].

2.5.Independence

Due to the insufficiencies and the criticisms poured over the Montevideo Convention, other authors have tried to evaluate other requirements which can be essential to the concept of statehood. Even though there are various, the most important and with more impact in the practice has been the criterion of independence[16].

For many, the independence of the State is the decisive factor[17], which means that the authority which is representing an entity can act and function independently “of that of any other State”[18]. While it is difficult to measure how much is a State independent, we could assert that would include “the exercise of substantial governmental authority with respect to some territory and people” and “the absence of subjection to the authority of another State or States”[19]. That is the reason behind the non-recognition of Manchukuo, because it was an artificial State, a ‘puppet-State’.

2.6.Consequences

Once an entity has acquired de facto the criteria explained above, independently by which way it was created, we can assert that it exists as a State. This does not signify that the entity will become part of the international legal order, as the practice has shown us. For it to be fully accepted it has to be created legally and/or to be recognized. That is why it is necessary to give a look to the concept of self-determination and the institution of recognition[20].

3. SELF-DETERMINATION

Due to the constant efforts throughout the United Nations of the countries borne from colonization, self-determination was converted in a legal principle, though in a narrow sense. If we combine the articles from the Charter[21] with GA Resolutions 1514[22], 1541[23], 2625[24], Article 2 of the International Covenant on Political and Civil Rights[25], and the ICJ rulings in the Western Sahara[26] and East Timor[27] cases we can observe that the right of self-determination has been limited to those regions that were under the dominance of the Western countries[28].

In spite of that, there have been intentions on giving a broader sense to the legal notion, attempting to extend the right beyond decolonization. Some scholars have argued that behind the notion of self-determination any people can do it. In that sense, they talk about a double dimension of the idea: internal and external self-determination, which allows it in extreme circumstances to separate from a State, the so-called “remedial secession”[29]. Unfortunately, the practice of the States and the current state of the law demonstrates us that there is not yet such a broad self-determination; it has remained in the decolonization sphere, which means that beyond that sphere there is no right to self-determination, that is, to secede.

Said that, we need to stress that there is no rule in International Law which prohibits secession per se[30] - which is quite different to not having a right -, but the rules discourage such actions. The uti possidetis and the respect to the territorial integrity principles remain strong[31]. The success of an entity in seceding from the parent State is based on being recognized by other States. For that reason, we need to look at that institution.

4. RECOGNITION

Recognition is the action by which States consider that an entity has met all the requirements of statehood and has recognized it as such, and it is by his nature an act of political discretion. There are two main strands: the constitutive theory, which says that a State becomes one only until other States do so (status-creating) and the declaratory theory, which asserts that a State is one if it meets all the requirements (status-confirming)[32]. Both theories have proved wrong, as “life proves to be stronger than doctrine”[33]. At the moment we could say that recognition has a powerful effectiveness effect: maybe an entity can be a State, but if the other States do not recognized it, such an entity will not be able to function with efficacy in the international realm, despite being a State.

As Carrillo Salcedo pointed out, the institution of recognition has a powerful leverage. If many States recognize an entity as a State, that reinforces the political and juridical reality of it; “in other words, the recognition by the other States is not a necessary condition for the existence of the new State, but it does consolidate its international subjectivity and its insertion in the international community, even to those States who have not recognized it”[34]. That signifies that the approach of the States has been as a “peer-review” process, in the sense that they are the only ones who admit if the new candidate can enter the club[35].

Kosovo is a useful example: according to what we have seen, the secession of the country was illegal because it did not have the right to self-determination. However, the way it was recognized gave it the legitimacy it lacked legally.

5. CASE STUDY

According to what we have explained we could argue that neither Abkhazia nor South Ossetia have a right to self-determination or to secede from Georgia. However, that does not impede that they could not become States if they meet the criteria listed above. Both entities have a permanent population, a defined territory and even governments enough strong for maintaining the order. Moreover, both regions have been de facto independent from Georgia since the 1990s.

Nevertheless, they failed in the most important criterion: independence. As has been widely reported, both regions have been under the presence of Russian forces even before the outbreak of last summer[36], and they have Russian passports apart from economic aid they receive[37]. What is more evident of a lack independence is the fact that Abkhazia requested the Russians to represent its interests abroad[38] and South Ossetia wants to unify with North Ossetia and does not mind being part of Russia if that is the case[39]. All those facts are very clarifying: they cannot act and function independently from other State. Despite the fact that both entities “seeks to separate itself from the State to which it belongs” they do not seek to “create a new State”[40] up to the moment. Even recognition will not be enough, because there have been few who do recognize them and they do not have enough force to overcome the illegality of the situation and does not help to enter into relations with other States.

Even though every situation has its particular traits, there is a situation similar to this: the Turkish Republic of Northern Cyprus. It is true that the events that led to the Cyprus conflict differ from the once that occurred this summer, but the outcome was similar. The Republic has survived due to the support and protection of Turkey, as it looks like in Abkhazia and South Ossetia.

Bangladesh could be also helpful in this case. We could argue that the help from Russia, like the Indian one in the 1970s, has been crucial to definitely separate the two regions from Georgia, which was trying to regain the control there.

6. CONCLUSION

After reviewing and evaluating the requirements that an entity needs to be qualified as a State, we can assert that neither Abkhazia nor South Ossetia can be considered such. However, politics can always surprise.

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[1] B. Vukas, ‘States, Peoples and Minorities’, 231 RCADI 263, at 280 (1991-VI); M. Diez de Velasco, Instituciones de Derecho Internacional Público 273 (2007); and J. Crawford, The Creation of States in International Law 31 (2006). For some definitions see T.D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, 37 CJTL 403, at 409-410 (1999).

[2] See Crawford, supra note 1, at 40.

[3] Id., at 45.

[4] B. Vukas, supra note 1, at 281 and M. Schoiswohl, Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes in International Law: The Case of ‘Somaliland’ – The Resurrection of Somaliland Against All International ‘Odds’: State Collapse, Secession, Non-Recognition and Human Rights, at 12, n.29 (2004).

[5] J. Crawford, ‘The Criteria for Statehood in International Law’, 48 BYIL 93, at 111 (1976-1977).

[6] Diez de Velasco, supra note 1, at 274.

[7] Schoiswohl, supra note 4, at 13.

[8] Diez de Velasco, supra note 1, at 274.

[9] North Sea Continental Shelf, (Germany v. Denmark/ Netherlands), Judgement, 20 February, 1969 ICJ Rep. 3, at 32, par. 46.

[10] Crawford, supra note 1, at 55-56.

[11] Western Sahara, Advisory Opinion, 16 October, 1975 ICJ Rep. 3, at 43, par. 63.

[12] H. Lauterpacht, Recognition in International Law 28 (1947).

[13] Schoiswohl, supra note 4, at 14-15; Vukas, supra note 1, at 288 et seq.

[14] Crawford, supra note 1, at 57. It is also interesting to observe that there were cases where the effectiveness of an authority was insufficient to back the statehood, see I. Brownlie, Principles of Public International Law 71 (2006).

[15] See Crawford, supra note 1, at 61; Crawford, supra note 4, at 119; Brownlie, supra note 14, at 71; Schoiswohl, supra note 4, at 17.

[16] See Grant, supra note 1, at 438 et seq.

[17] See Brownlie, supra note 14, at 71, note 16 and Schoiswohl, supra note 4, at 17, n.60.

[18] Lauterpacht, supra note 12, at 26.

[19] Crawford, supra note 1, at 66.

[20] For a thorough account of the relationship between legality and statehood see Crawford, supra note 1, 97ss. See also D. Raic, Statehood and the Law of Self-Determination 153 (2002).

[21] Art. 1.2, 55, 73, and 76.b.

[22] UN Doc. A/RES/1514 (XV) of 14 December 1960.

[23] UN Doc. A/RES/1541 (XV) of 15 December 1960.

[24] UN Doc. A/RES/2625 (XXV) of 24 October 1970.

[25] UN Doc. A/RES/2200A (XXI) of 16 December 1966.

[26] Supra note 11.

[27] East Timor, (Portugal v. Australia), Judgment, 30 June, 1995 ICJ Rep. 2, at 102, par. 29.

[28] See D. F. Orentlicher, ‘Separation Anxiety: International Responses to Ethno-Separatist Claims’, 23 Yale Journal of International Law 1, at 42 (1998); Schoiswohl, supra note 4, at 77-78; see also J. Crawford, ‘State Practice and International Law in Relation to Secession’, 69 BYIL 85, at 113 (1998); and A. Cassese, Self-Determination of People: a legal reappraisal 33 et seq. and 92 et seq (1995).

[29] See C. Tomuschat, ‘Secession and self-determination’, in M.G. Kohen (Ed.), Secession: International Law Perspectives, 23 at 38 (2006).

[30] Id., at 31 and J. Dugard and D. Raic, ‘The role of recognition in the law and practice of secession’, in Kohen, supra note 22, 94 at 102.

[31] See M. N. Shaw, ‘The Heritage of States: The Principle of Uti Possidetis Juris Today’, 67 BYIL 75 (1996); see also Crawford, supra note 21, at 85 et seq.

[32] S. Talmon, ‘The Constitutive versus the Declaratory Theory of Recognition: Tertium non Datur?’, 75 BYIL 101, at 101 (2004).

[33] N. Schrijver, ‘Can the Cause of Human Rights Justify Breaking Up a State? Reflections on Secession and the Ban on the Use of Force’, in K. Arts & P. Mihyo (Eds.), Responding to the Human Rights Deficit – Essays in Honour of Bas de Gaay Fortman, 49 at 51 (2003); Also I. Brownlie, ‘Recognition in Theory and Practice’, 53 BYIL 197 (1983).

[34] J.A. Carrillo Salcedo, Curso de derecho internacional público: introducción a su estructura, dinámica y funciones 47 (1991). (Translation by us)

[35] O.Ch. Okafor, Re-Defining Legitimate Statehood – International Law and State Fragmentation in Africa 55 (2000).

[36] ‘From frozen to boiling’, The Economist, 17 April 2008, (http://www.economist.com/world/europe/displaystory.cfm?story_id=11043570) (Last seen 21 Sept.)

[37] ‘If Kosovo goes free’, The Economist, 29 November 2007, (httphttp://www.economist.com/world/europe/displaystory.cfm?story_id=10225052) (Last seen 21 Sept.)

[38] T. Halpin, ‘Kremlin announces that South Ossetia will join ‘one united Russia state’, The Times, 30 August 2008, (http://www.timesonline.co.uk/tol/news/world/europe/article4635843.ece) (Last seen 21 Sept.)

[39] See supra note 37.

[40] See Crawford, supra note 24, at 85.