Conflict resolution in Georgia

Conflict resolution in GeorgiaA synthesis analysis with a legal perspective

Antje Herrberg Crisis Management Initiative

3A synthesis analysis with a legal perspective

Conflict resolution in GeorgiaA synthesis analysis with a legal perspective

June 4 2006

Editor: Antje Herrberg, Crisis Management Initiative1

Introduction

The purpose of this paper is to discuss the Georgian conflicts of Ab-khazia and South-Ossetia from the perspective of international law. As discussions on these frozen conflicts receive additional attention by the international community, notably the European Union, which is surrounded by considerable political rhetoric creating uncertainty and sometimes confusion, it is timely to present a factual analysis that might allow a constructive framing of negotiations or mediations in the future.

This paper is a synthesis of a complete study that was undertaken by the Crisis Management Initiative, and thus might not make explicit reference to important case law. Rather it sets out the main and most crucial elements relevant to Georgia. This synthesis includes a legal

1 The Editor would like to thank her colleagues and consultants for the first drafts of this study and input that lead to this synthesis report

Conflict resolution in Georgia4 5A synthesis analysis with a legal perspective

analysis regarding the demands for independence made by Abkhazia and South Ossetia from Georgia.

The paper starts out with a condensed overview of the background in particular the armed conflicts in the 1990’s in Abkhazia and South-Os-setia. This is followed by an assessment of the limits and possibilities provided by the current Georgian constitution for the settlement of the conflicts. The main part of this paper examines the international law of statehood and self-determination as applied in the conflicts.

The main conclusion of this paper is that neither Abkhazia nor South-Ossetia has a valid claim to statehood under international law on the basis of unilateral action. Nevertheless, to the extent that the Abkhaz and South-Ossetians may be held as distinct “peoples”, they enjoy the right of self-determination. Solution of the conflicts is legally possible only by a negotiated solution. An examination of international legal practice in analogous cases shows that self-determination may either be realized through appropriate federative or autonomous arrange-ments for self-government within Georgia or by other arrangements for minority protection. The conclusion of this study is that since these conflicts seem to be intractable possibly due to a lack of full assessment of the legal framework, that the reframing of key questions and mu-tual discussion of them within the possibilities presented here could be conducive in terms of finding a settlement to the conflicts. Given the deep entrenched position of the parties, it would be advisable to draw a credible and neutral third party to facilitate these talks.

1. The hIsTorICal ConTexTSince its independence in the aftermath of the dissolution of the So-viet Union, Georgia faced notable ethno-territorial conflicts within its borders. Three areas that have enjoyed autonomous status since the 1920’s1 – Ajaria, Abkhazia and South-Ossetia – have striven to strengthen their position vis-à-vis the Georgian central government, ultimately challenging the national unity of Georgia. Whereas a peace-ful solution has been found for the Ajaria region, the conflicts in Abk-hazia and South-Ossetia still await resolution. Both regions have pro-claimed independence from Georgia in the 1990’s. With the support of the international community Georgia has rejected their secessionist claims and insisted on its territorial integrity.

In spite of the lack of any international recognition as to their inde-pendence, both Abkhazia and South-Ossetia have continued to dis-tance themselves from their central government. The areas have de-veloped their own political institutions; presidents, parliaments, and local political parties. While they also possess other insignia of formal statehood, such as security and armed forces, the economic conditions of the areas remain weak and illegal trade or criminality flourishes.2 While the two breakaway-regions share their desire to secede from Georgia, the territories differ in many respects. The respective roots of the conflicts are different, the population and territories possess differ-ent characteristics, and they enjoyed different status within the Soviet Union. The pace and developments in their secessionist struggles have also varied.

a) abkhazia

Abkhazia, formally the Georgian Autonomous Republic of Abkhazia, is situated in the north-west of Georgia, bordering the shores of the Black Sea to the west, Russia in the north, and the Georgian provinces Svan-etia and Mingrelia in the south. The region comprised of 8,700 sq km, one eight of the territory of the Republic of Georgia and comparable in size to that of Cyprus, is today the homeland for some 200,000 inhab-itants composed of different ethnicity, the majority of whom are Ab-khaz.3 The demographic structure of Abkhazia was, however, notably different at the time of the dissolution of the Soviet Union and the out-break of armed conflict with Georgia in 1992. Before the war the popu-lation number was considerable higher – 525,000 – and the ethnic Abkhaz population maintained a minority position with the following ethnic composition: Abkhaz (18%), ethnic Georgians (46%), Armeni-ans (15%), Russians (14%), and others (8%).4 The 1992 hostilities gave rise to a wide displacement of populations – which especially targeted the ethnic Georgians – and it still constitutes one of the unresolved questions that a final settlement will have to address.

Despite the worsened inter-ethnic relations in Abkhazia during the 1992-93 war and its aftermath, Georgians at large adhere to the view that the Abkhazians are an autonomous people with Abkhazia being their native land.5 The Abkhaz population differs ethnically from the Georgians and their separate identity is recognized and accepted. Al-though the Abkhaz language is a Caucasian language like the Georgian, the two languages are not mutually understandable. Religion-wise the Abkhaz also differentiate themselves from Georgians; the Orthodox


Church forms an important part of the Georgians’ life, whereas the Ab-khazians are religiously divided into Christianity and Islam.

This ethnically and culturally distinct population lives in the moun-tainous, but yet subtropical region of Georgia. It has relied on tourism and agriculture for survival. The effect of the 1992-93 war and years of economic embargo and isolation has, nonetheless, disassembled the Abkhaz economy to a dependency on Russia. Still, some perceive Abk-hazia as capable of surviving on its own economically as the region at least has been self-sufficient in food and electricity. According to the UNDP much of the population of Abkhazia is, however, impoverished and relies on humanitarian aid. Furthermore, the UNDP has concluded that infrastructure in Abkhazia “is in a stage of progressive collapse”.6

The international community has been unwilling to support the claims for independence by Abkhazian representatives; the UN, OSCE, EU as well as other international institutions have all sustained the territorial integrity of Georgia.

Abkhazia under Soviet Rule

The history of Abkhazia involves certain periods when the Abkhaz have assumed ownership of governance and administration, yet it has for the most part constituted an autonomous part of Georgia or Russia/the Soviet Union. The Abkhaz history in the twentieth century follows at large the creation, existence and dissolution of the USSR and challeng-es posed by its federal structure, both between and within the Union republics. Therefore the relations between Abkhazia, Georgia and the Soviet Union were marked by subordination of the former to the lat-ter7. The subordinate position that Abkhazia and Georgia maintained under the Soviet structure was understood as threat to their respective national identities.

It was during Soviet rule Abkhazia’s status changed from that of a full republic status to one of autonomous republic within the Socialist So-viet Republic of Georgia in 1931. This was followed through with as-similation efforts until Stalin’s death in 1953. From then on, Abkhazia’s status vacillated between reinstatement of statehood and the Georgian quest to integrate the autonomous republic firmly into its state. Since the 1990’s the tensions resulted in unilateral declaration of independ-ence by Abkhazia on July 23 1992 and resulted in a full blown conflict.

On 25 August 1990, the Abkhazian Supreme Soviet declared state sov-ereignty of the Abkhazian SSR although it also expressed preparedness

to negotiate with Georgia on the formation of a federal constitutional structure that would preserve Georgia’s territorial integrity.

The declaration of independence of Georgia on 9 April 1991, the op-position against president Gamsakhurdia and the military coup that removed him from power created a general atmosphere of turmoil during which the Georgian constitution from 1921 was reinstated. This constitution did not stake out any separate status of Abkhazia.

Whereas Georgia’s independence was manifested through internation-al recognition and membership in international organizations, Abkhaz-ia continued the struggle to enhance its status. The Abkhaz Supreme Soviet reinstated the Abkhaz constitution of 1925, according to which the “Republic of Abkhazia” was to have a federative relationship with Georgia based on equality between the two republics. This declaration of independence on 23 July 1992 did not further the protection of Abk-hazia’s hitherto autonomous political status. Instead it turned the long tension into an armed conflict between Georgia and Abkhazia.

The 1992 Conflict and Its Aftermath

It was on 14 August 1992, when Abkhazia’s proposals for a federa-tive/confederative arrangement with Georgia were met by Georgia’s Shevardnadze dispatching troops to bring Abkhazia into order. Not-withstanding initial military success on the Georgian side, the Abkhaz fighters along with support from North Caucasian volunteers and Rus-sian military supplies managed to force the Georgians to retreat in Sep-tember 1993. The toll of the armed conflict was hundreds of lives and wounded and devastated vast areas, with almost 300,000 internally displaced persons8 – most of whom were ethnic Georgians. In line with the wishes of both parties the conflict had received international at-tention and involvement by the United Nations. Earlier attempts to achieve ceasefire had generated the United Nations Observer Mission in Georgia (UNOMIG), which was established on 24 August 1993 by the UN Security Council resolution 858 (1993).9

The UN led negotiations resulted in the signing of the Declaration on Measures for a Political Settlement of the Georgian-Abkhaz Conflict on 4 April 1994, which laid down a ceasefire, and a Quadripartite Agree-ment on Voluntary Return of Refugees and Displaced Persons.10 The declaration stated that “any agreement on this issue [distribution of powers between Abkhazia and Georgia] is part of a comprehensive set-tlement and will be reached only once a final solution to the conflict


has been found”. The ceasefire was formalized by the parties through the Agreement on Ceasefire and Separation of Forces (the so-called Moscow Agreement) on 14 May 1994. A peacekeeping mission by the Commonwealth of Independent States (CIS) forces has been deployed to keep the peace, while UNOMIG’s role has been limited to monitor-ing the CIS forces.11

The 1994 cease-fire instruments set forth future negotiations between the parties without taking a definitive stance upon the basic principles that a political settlement would have to include. Thus, even though it stopped the active hostilities, it left the political settlement afloat – or in a term more commonly used: “frozen”. Although the conflict has stayed frozen with regard to finding a political settlement, occasional fighting between the parties has occurred. The escalation of the con-flict in 2001 prompted increased mediation and negotiation efforts by the international community. The most important UN contribution so far has been proposed in 2001 by the Secretary-General’s Group of Friends of Georgia (France, Germany, Russia, the United Kingdom, and the United States) entitled “the Basic Principles for the Distribu-tion of Competencies between Tbilisi and Sukhumi”. This proposal has repeatedly been endorsed by the UN Security Council.12 The Basic Principles lays down the general framework for a political settlement according to which “Georgia is a unified State and Abkhazia is a part of it, an administrative-territorial entity with serious sovereign rights within Georgia”.13 Although the proposal has not been endorsed by Ab-khazia, it remains the most important basis for any settlement of the conflict.

Tension despite External Involvement

Many international actors have been involved during the past fourteen years in either monitoring or negotiating/mediating the resolution of the conflict. Despite the persistent efforts of the United Nations, it’s Secretary-General and of his Special Representative with Russia as fa-cilitator, the Group of Friends of Georgia and the OSCE, there still is no agreement on the key issues to the conflict.14 The so-called Geneva Peace Process – in addition to the Coordination Commission that was established simultaneously with the 1994 Moscow Agreement, and con-ferences between the parties on confidence-building measures in Ath-ens 1998, Istanbul 1999 and in Yalta 2001 – has made only little sub-stantial progress concerning the future status of Abkhazia or the return of IDPs and the parties still hold opposite positions on an arrangement

that would solve the conflict. On a few occasions, the security situation has deteriorated almost to the level of direct clashes and consequently the mandates of the CIS peacekeeping forces as well as UNOMIG have constantly been extended. Notwithstanding the reported new dynam-ics in the peace process in 2003 when the Abkhaz de facto authorities received the Group of Friends in Sukhumi at the ambassadorial level,15 no agreement has been concluded that would comprehensively settle the conflict.

The failure of existing mechanisms to achieve a settlement has led to Georgian demands for an increased role of the European Union as well as replacing the CIS peacekeepers with peacekeepers of other nation-alities. Moreover, Georgia has resorted to measures over which the UN Security Council has expressed its concern: In July 2006 the Georgian government launched a military operation in the upper Kodori Valley (a security zone monitored by UNOMIG and CIS peacekeepers accord-ing to the 1994 Moscow Agreement) to “restore law and order in the area” after which the Tbilisi-based government of the Autonomous Re-public of Abkhazia was relocated there.16

Today, the strategically important Kodori Valley is the only part of Ab-khazia that is under Georgian control. Since the gorge separates the separatists from Georgia it remains the conflict’s hot spot with reoc-curring clashes, provocation and hardening rhetoric. In March 2007 clashes ensued once again. These were accompanied by accusations of the Georgian government on both Sukhumi and Russia for shelling vil-lages.17 Both parties have denied any direct involvement and labeled these as acts of local violence. However, the incidents demonstrate that all parties are easily provoked and that tension remains high.

The UN’s Secretary-General has underlined the negative effect of con-tinuing tension between the parties in his report in September 2006: “A negotiated solution for the Georgian-Abkhaz conflict is undoubtedly difficult to reach today, as the positions of the two sides have grown further apart over the years on the question of the political status”.18

b) south-ossetia

The Autonomous Region of South-Ossetia is located in northern Geor-gia bordering Russia. It is separated from the Russian Autonomous Republic of North-Ossetia by the Caucasian mountains and it extends in the south nearly to the Mtkvari River in Georgia. Thus, South-Osse-tia lies geographically close to Georgia’s capital Tbilisi, in fact, South-


Ossetia’s capital Tskhinvali lies within two hours drive by car from it.19 The 3,900 sq km area populates 70,000-80,000 inhabitants most of whom are ethnic Ossetians, but a Georgian minority composing less than one third of the population also resides in the area.

According to the Ossetian historiography their people descend from the Iranian people, the Alans. Indeed, the Ossetian language is Iranian and related to Farsi. Whereas the language differentiates the Ossetians from the Georgians, they still share the same religion – Orthodox Chris-tianity. Yet, Ossetians do not fall within the predominant Georgian national conception. The Georgians take the position towards Osse-tians that the territory of South-Ossetia does not constitute the latter’s homeland and that the Ossetians are a non-native Georgian people. In line with this, Georgia has been reluctant to grant territorial autonomy to South-Ossetia. The Ossetians themselves maintain a distinct Osse-tian identity separate from Georgian. At least during Soviet times Os-setian identity has, however, been described as relatively weak.20

South-Ossetia’s location with regard to economic viability is unfavora-ble. The vast part of the area is mountainous, and except for some ag-riculture and mining it has had little economic activities. Not even the finishing of a railway-tunnel between North and South-Ossetia in 1988 has managed to correct the area’s economic backwardness. Instead, smuggling of goods through the tunnel has constituted one means for livelihood of Ossetians,21 with widespread criminality as a consequence. Indeed, acknowledging the limited economic viability of their territory, South-Ossetians have striven to independence from Georgia in order to be unified with their wealthier ethnic kins in North-Ossetia.

South-Ossetia during Soviet Rule

As part of Georgia, South-Ossetia had formed a part of Russia since 1801. The roots to the present conflict, however, date back to the fall of the Russian Empire in 1917 and the subsequent struggle between Men-sheviks and Bolsheviks on the one hand, and on the other hand the ex-isting ethnic tension. South-Ossetian separatism existed already during the First Georgian republic (1918-1921). Uprisings occurred 1918-1920 and even a declaration of independence of South-Ossetia was adopted in 1920 the purpose of which was to establish a Soviet republic.22 The Georgian quelling of the uprisings killed thousands of people, and left the South-Ossetians suffering from hunger and epidemics.23 In 1921, the Soviet army invaded Georgia and with that South-Ossetia was de-

clared to be an Autonomous Oblast (region) of the Georgian Soviet So-cialist Republic.

During the Soviet period, South-Ossetians were granted a degree of autonomy with regard to language and education, yet, their position was inferior to that of Abkhazia or the autonomy enjoyed by their Northern kin under Russia. The South-Ossetian demands in 1988 to upgrade the territory’s status from an autonomous region to an au-tonomous republic were, nevertheless, dismissed by Georgia. Public discussions between Georgians and Ossetians over the future of Geor-gia and its ethnic groups were held in South-Ossetian villages, but any peaceful attempts to resolve the tension failed on 23 November 1989, when 15,000 Georgians marched into Tskhinvali, the capital of South-Ossetia. The ensuing clashes between Georgians and South-Ossetians soon demanded their first victims.

1990-1992 Conflict and Its Aftermath

In 1990 the situation between Georgia and its autonomous region South-Ossetia further deteriorated. Following Georgian legislation that banned regional parties, the South-Ossetian Popular Front proclaimed full independence on 20 September 1990 within the Soviet Union and consequently arranged its own parliamentary elections. Georgia react-ed by annulling the election result, abolishing South-Ossetia’s status as an autonomous region, and declaring state of emergency. The Soviet Union declared the acts of both parties unconstitutional and ordered them to cease all military actions. Georgia’s refusal to abide by the So-viet demands generated chaos and warfare as of January 1991. After a year of direct armed conflict, South-Ossetia’s authorities arranged a referendum, which overwhelmingly supported secession from Georgia and integration with Russia. The new leaders of Russia and Georgia, however, reached a ceasefire agreement in Sochi on 24 June 1992, ig-noring the South-Ossetian claims for sovereignty. Instead of gaining independence through armed confrontation, South-Ossetia now faced a different reality: 1,000 dead, missing persons, destruction of homes and infrastructure, refugees and internally displaced persons.

The Sochi Agreement created a Joint Control Commission (JCC) with inter alia the task to supervise the observance of the agreement, draft and implement conflict settlement measures, promote dialogue and political settlement, facilitate refugee and IDP return, monitor human rights, and coordinate the activities of the Joint Peacekeeping Forces. The JCC has since created working groups on: 1) military and security


matters, 2) economic rehabilitation, and 3) establishing conditions for refugee and IDP return.24 The JCC is composed of representatives from Georgia, Russia, North and South-Ossetia and the OSCE, whereas the Joint Peacekeeping Forces (JPKF) is drawn from Georgian, Russian and Ossetian units.

The framework laid down in the 1992 Sochi Agreement has not con-tributed to a final solution of the Georgian-South-Ossetian conflict. The pace of negotiations has been slow, marked by periods of inactiv-ity. It was not until 1999 that the parties met to discuss the political set-tlement of the conflict. The relations took a turn to the worse in 2004 when Georgia’s new president Saakashvili tried to bring South-Ossetia back under effective Georgian control. His policy, which was based on the idea that South-Ossetia’s separatism survived on the basis of smug-gling and that eliminating this would turn the South-Ossetian popula-tion against its separatist leaders, failed.25 Instead, the Georgian ap-proach was counter-productive: the separatist leaders were reinforced in their belief that Georgia constituted a threat to South-Ossetia’s sur-vival and that the only end-goal could be independence. The outbreak of renewed fighting in August 2004 forced Georgia to step back.

Recent Developments in Negotiations and International Involvement

Separatism and efforts to counter it in South-Ossetia continue to thrive. The rhetoric has even intensified after the shooting of a Geor-gian helicopter in September 2006 and the organizing of a referendum on South-Ossetia’s future status in November 2006.26 The result of the referendum was overwhelming support for independence. However, the referendum has not been internationally recognized. Whether the ultimate objective truly is independence or uniting with North-Ossetia as a part of Russia is unclear. The South-Ossetian separatist leaders with Eduard Kokoity at the forefront have repeatedly insisted on full independence as the only acceptable alternative.

The separatist leaders have so far rejected all peace proposals offered, including a comprehensive peace plan presented to the UN, the Coun-cil of Europe, and the OSCE in 2005 in which the Georgian President Saakashvili was prepared to offer South-Ossetia a wide autonomy. The plan included granting South-Ossetia an autonomous status with con-stitutional guarantees with the right to freely and directly elect local-self-government, including an executive branch and a parliament.27

South-Ossetia would have received control over issues such as culture, education, social policy, economic policy, public order and environ-mental protection. South-Ossetians would also have been granted quo-tas in the national parliament, judiciary and the central government. According to the Peace Initiative, the central government would have retained powers over border control, defence and human rights. The peace plan called for a three-year transition period controlled by an international monitoring mission and for compensation to victims of war atrocities.28 The initiative was, however, instantly rejected by the South-Ossetian separatist leaders.

The stalemate in the negotiations and Georgian perception is that it has a disadvantageous position within the Joint Control Commis-sion which has fostered Georgian demands for a change in the com-position of the Joint Control Commission. Furthermore, Georgia has expressed wishes to remove the CIS peacekeepers and to render the European Union an increased role in the resolution of the conflict. Al-though Georgia and South-Ossetia disagree as to the desired outcome of any negotiations, there still appears to be room for some dialogue and international involvement. The international donor conference for South-Ossetia in June 2006 showed considerable involvement of the European Union which has granted financial assistance to the area.29 However, the European Union has insisted on the importance of Rus-sia’s role in finding a durable solution.30

This review shows that the two conflicts are quite different in terms of their ethnic territorial and in terms of their historical relations with Georgia, that efforts to find a mutually acceptance for the status of Abk-hazia and South Ossetia have not been successful. The question there-fore is how to locate possibilities of principally identity driven politics of these entities within the framework of possible solutions within the context of the international law.

2. The ConFlICTs anD The GeorGIan ConsTITUTIonIn order to situate the Abkhaz and the South Ossetian conflict within the existing legal framework of Georgia it is useful to reflect on the Constitution of 1995 and its subsequent amendments.


a) The 1995 Constitution of Georgia

The Constitution of Georgia was adopted on 24 August 1995.31 Sub-stantial amendments to the Constitution were adopted subsequently, in particular under the Constitutional Law of 6 February 2004. The chief effect of the amendments has been to establish a mixed presiden-tial-parliamentary system of government based on the French model, therefore with no direct effect on the constitutional status of Abkhazia or South-Ossetia.

The Constitution of 1995 and its amendments contain provisions on the status of the regional entities and the rights of their inhabitants. Geor-gia has made commitments relative to its treatment of the autonomous regions and human rights generally. Such commitments form part of the international treaty practice of Georgia. They merit summary in the context of the constitutional law of Georgia for two reasons. First, the constitutional law of Georgia displays such a pronounced interna-tionalization that these commitments may well be directly actionable in Georgian courts. Second, the commitments merit examination for consistency with related provisions of the Constitution. These provi-sions of the Constitution relevant to the status of the territories and to the rights of their inhabitants should be addressed.

b) Territorial Integrity

The Constitution of Georgia emphasises the country’s “territorial in-tegrity” and substantial attention is given to details of the State’s ter-ritorial parameters. Article 1, paragraph 1 states as follows:

“Georgia is an independent, unified and indivisible State, as con-firmed by the Referendum of March 31, 1991, held throughout the territory of the country, including the Autonomous Soviet Socialist Republic of Abkhazia and the Former Autonomous Re-gion of South Ossetia, and by the Act of Restoration of the State Independence of Georgia of April 9, 1991.”

This central proposition of international law means that a State has the right to take measures that are necessary, consistent with international law, to preserve its territorial integrity. The right is valid against both internal and external challenges. It is not that remarkable in itself that the Constitution of Georgia iterates this right—for example, in article 26(3) – as against internal challenges.32 Such a statement establishes a direct relation between (Georgian) domestic law and international law.

The relation has been seen before, and other States too have sought au-thoritative expressions of it.33 It is likely that the instability created by the break-up of the Soviet Union prompted the adoption of stabilizing provisions to guarantee internal public order. Clear is, that the draft-ers of the Constitution expressed emphatically the indivisibility of the Georgian State within particular, specified frontiers.

c) International Commitments of Georgia respecting the autonomy Questions

Whilst an enumeration, or analysis of the international commitments of Georgia are beyond the scope of this paper, a number of observa-tions regarding the commitments undertaken by Georgia at the time of its accession to membership in certain international organizations can be made.

Georgia was admitted as a Member State of the United Nations, by vote of the General Assembly (GA res 46/241 of 31 July 1992). The admission of a State implies acceptance of the terms of Article 4(1) of the Charter, namely, that the State be “peace-loving” and accept the “obligations contained in the […] Charter.” Georgia declared, by a pro forma statement transmitted on 6 May 1992 that it “accepts the obli-gations contained in the Charter of the United Nations and solemnly undertakes to carry them out.”34

More extensive commitments were undertaken in connection with the admission of Georgia to the Council of Europe. The Parliamentary As-sembly of the Council of Europe, by Opinion 209 of 27 January 1999, called on Georgia, as a condition following accession to:

“Enact, within two years after its accession, a legal frame-work determining the status of the autonomous territories and guaranteeing their broad autonomy, the exact terms of which are to be negotiated with the representatives of the territories concerned.”35

The same Opinion also called on Georgia to adopt legislative meas-ures within two years of accession, and administrative measures within three years of accession, providing for restitution of ownership and ten-ancy rights, or payment of compensation for property lost by persons displaced during the conflicts of 1990-94.36 It further called on Georgia to adopt a minority law based on the principles set out in Assembly Recommendation 1201 of 1 February 1993.37 The Council of Europe


also called on Georgia to prosecute perpetrators of war crimes in the conflicts in Abkhazia and South-Ossetia.38 Georgia is a party to the Framework Convention for the Protection of National Minorities.39

General provisions in the Georgian Constitution on international law follow the pattern of many other recent constitutions, displaying what writers have called “international law friendliness”.40 Receptivity or “friendliness” of a constitution to international law is not only a mat-ter of interpretation – i.e., the availability of international sources as aides to determine the meaning and application of domestic rules. It also may expressly incorporate international obligations, including customary international law, into domestic law.41

The international law provisions of the Constitution of Georgia may have specific relevance to the settlement of the autonomy questions. The incorporation of international obligations into the constitutional law of Georgia – for example, obligations relative to the treatment of national or ethnic minorities – may make the obligations a matter for Georgian courts. A breach of an international obligation of the State is not typically actionable directly in the national judicial system, but incorporation of the obligation into municipal constitutional law may make it so. A question is presented by the final clause of article 6(2) of the Constitution, which would appear to provide that constitutional provisions prevail over inconsistent international commitments. Ac-cording to international law, however, a State cannot avoid its inter-national obligations by arguing that the commitments are inconsistent with its constitutional law.42

d) Constitutional Provisions on abkhazia and south-ossetia

The Constitution of Georgia establishes certain individual rights (hu-man rights) as applicable without distinction to all natural persons in Georgia. It also establishes certain special rights, applicable to the au-tonomous regions of Georgia—Abkhazia and Ajara, and though these do not apply by specific reference to South-Ossetia, it would be a fair construction to apply at least certain of them to that territory as well. The latter category of rights concerns the territorial status of the auton-omous regions within a framework of constitutional law. Both catego-ries of rights – human rights and special regional rights – may afford protections for Abkhazians and South-Ossetians.

Human Rights

The human rights provisions of the Constitution may be subcatego-rized to include general human rights, minority rights, language rights, and a right to nationality (the provisions for which also concern the process for determination of nationality). Each category is considered here in turn.

1) The Preamble of the Constitution indicates that it is the “will” of the citizens of Georgia, inter alia, “to guarantee universally recognized hu-man rights and freedoms.” Article 7 binds the State to observe these rights and freedoms. A concrete list of basic rights of Georgian citizens is provided in Articles 12-47, which comprise Chapter Two of the Con-stitution. These include the array of rights typically guaranteed in a modern constitution, including equality before the law.

2) Specific rights with relevance to minorities – although not expressed as collective minority rights per se – are also recognized in the Con-stitution. Article 14, provides legal equality, regardless, inter alia, of linguistic, national or ethnic identity or place of residence. Further-more, Georgian constitutional law includes a provision against organ-ized private action aiming to “incite… hatred.” The protection in article 26(3) (prohibiting the “formation and activity of political parties which aim [inter alia]… to incite to national, local, religious or social hatred”) may be seen as specifically relevant to the rights of minorities.

3) Further minority rights provisions relate specifically to language rights, including language rights in Abkhazia. Article 8 provides as follows:

“The State language of Georgia shall be Georgian, and in the Autonomous Republic of Abkhazia, Abkhazian [shall also be the State language].”

There is no comparable provision for recognition of the Ossetian lan-guage in South-Ossetia. However, by the terms of article 8, it is clear that the constitution can accommodate dual State languages – or at least dual State languages within a given territorial sub-unit. No constitutional provision prohibits dual State languages. Further lan-guages may then be designated “State languages” in their own territo-rial spheres. Article 8 would lend support to language provisions in a settlement agreement – especially as against objections that might be raised under the various “State structure” and territorial integrity provisions of the Constitution.


Additional reference to linguistic rights appears in article 38(1) which guarantees equality of the citizens of Georgia, “irrespective of their na-tional, ethnic, religious or [regional] linguistic origins.” Moreover, all citizens “shall have the right, without any discrimination or interfer-ence, to freely develop their culture and to use their native language in private and in public.” Article 38(1) does not in itself establish a constitutional basis for creating institutions for the protection of the language rights guaranteed therein. This raises the question whether article 38(1) only covers individual rights, or may act as a mechanism for the reinforcement of those rights through special statuses or pro-tections for regions or ethnic or linguistic groups. However, the sec-ond paragraph of the same article contains a saving clause, reminis-cent of the provision to similar effect in the 1970 Friendly Relations Declaration,43 making clear that the rights of minorities are not to be exercised to the detriment of the territorial integrity of the State:

“In accordance with universally recognized principles and rules of international law, the exercise of minority rights shall not un-dermine the sovereignty or structure of the State, the territorial integrity or political independence of Georgia.”

One further provision relative to linguistic rights is Article 85(2) that provides as follows:

“Legal proceedings shall be conducted in the official language of the State. Persons who do not have a command of the offi-cial language shall be provided with an interpreter. In the dis-tricts where the population does not have a command of the State language, the teaching of the State language and the solu-tion of the issues related to the conduct of legal proceedings are guaranteed.”

The question to establish local languages in Abkhazia as official (or dual official) languages in court proceedings is not entirely clear. Arti-cle 85(2), taken on its own, does not go this far. But nor does it preclude that possibility. Though article 85(2) provides that proceedings shall be conducted in “the official language [singular] of the State” [empha-sis added], the provision could well be interpreted in light of article 8. A second language is recognized as a “State language” in Abkhazia and other second “State languages” could be recognized in other regions.

4) One final aspect of human rights that is of relevance for both Ab-khazia and South-Ossetia is the provision in Article 12, paragraph 2

according to which “[a] citizen of Georgia may not simultaneously be a citizen of another country,” except in the situation specified in the same paragraph. The specified situation is that in which the President has granted citizenship to a foreign national, “For his/her services to Georgia or if the bestowal of the Georgian citizenship is in the State’s interest.” The President thus may grant citizenship to a person also holding a non-Georgian nationality, if it is determined that either of two conditions is met. The latter—“if the bestowal of… citizenship is in the State’s interest”—would admit of few limits on the President’s discretion in this field. The liberal allowance to Presidential discretion could be useful, in the event that a settlement involved revisions of ter-ritorial border or other dispositions resulting in a change of national jurisdiction over persons.

Special Group or Territorial Rights

The Constitution refers by name to three territorial sub-units in Geor-gia: Abkhazia, Ajara and South-Ossetia. Article 3(4) provides, “The sta-tus of the Autonomous Republic of Abkhaz [sic] is determined by the Constitutional Law of Georgia, On the Status of the Autonomous Re-public of Abkhazia.” Article 3(3) makes provision, mutatis mutandis, for a Constitutional Law for Ajara. The constitutional situation of South-Ossetia appears, however, different. No provision is made for a separate South-Ossetian instrument.

Abkhazia receives further constitutional rights relative to its represen-tation in central Georgian State organs. Under Article 4, paragraph 3, the Georgian Senate “consists [inter alia] of members elected from Ab-khazia, the Autonomous Republic of Ajara and other territorial units of Georgia […]” The omission of South-Ossetia in article 4(3), and in other articles relating to Abkhazia, does not, however, preclude future provisions extending special representative rights to “other territorial units of Georgia.” In fact, that phrase positively suggests the possibil-ity of such provisions. Additional Abkhaz representation is guaranteed in Article 55(1) according to which at least one Vice-President of Par-liament will be a member elected from the Autonomous Republic of Abkhazia.

The “higher representative bodies” of Abkhazia have also been granted a number of other rights. They have the right of legislative initiative (article 67, paragraph 1) and under article 89(1), they are among the or-gans having the right to initiate proceedings in the Constitutional Court of Georgia. The Constitutional Court, on “a constitutional application


or a submission” by one of the organs having the right, is competent to do, amongst other the following: 44.

“adjudicate upon the constitutionality of Constitutional Agree- �ments, the laws, the normative acts of the President and the Gov-ernment, the normative acts of the higher State bodies of the Au-tonomous Republic of Abkhazia and the Autonomous Republic of Ajara;

consider disputes on the delimitation of competences between �State bodies;

consider disputes concerning the violation of the constitutional �law “On the Status of the Autonomous Republic of Ajara;

consider disputes related to the constitutionality of referenda and �elections. “

There is a clear difference in the status of Abkhazia and South-Ossetia under the Constitution. The Constitution includes a provision (Arti-cle 3) for the elaboration of special rights under special status laws for Abkhazia and for Ajara. In contrast, the Constitution refers to South-Ossetia by name only once, and in the general provision of article 1(1) relative to the validity of the act of independence of Georgia. The ques-tion, then, may be presented how to accommodate in the Constitution special rights for South-Ossetia. One approach would be constitutional interpretation. The provisions which give a wide margin and specific constitutional location to special territorial rights for Abkhazia and Ajara (and language rights for the former) may be interpreted as al-lowing the same or similar rights for South-Ossetia. Another approach would be constitutional amendment. Parallel provisions for South-Os-setia could be added to the Constitution as part of a settlement of the autonomy questions.

As a conclusion, it may be said that the Georgian constitution provides a supple fabric for the accommodation of many types of settlement that may emerge from future negotiations. Nevertheless, the possibility of constitutional change should not entirely be dismissed, especially in regard to the need to adopting a status law in regard to South-Ossetia. In a general sense, it may be assumed that any settlement would have to be enshrined as part of the Georgian constitution so as to accom-modate the two territories that have moved to claiming full independ-ence – something that the constitution does clearly prohibit. However, in the end the matter cannot be dealt with exclusively as an issue of

Georgian constitutional law. The territories make powerful claims un-der international law and those claims that must be dealt with prior to looking for a suitable constitutional solution.

3. The laW GoVernInG InDePenDenCe As pointed out above, both Abkhazia and South-Ossetia have made declarations of sovereignty and claim independence under interna-tional law. What is the validity of such declarations in terms of inter-national law?

a) Patterns of Independence since 1945

The community of States has since the end of World War II witnessed the emergence of over 120 new independent countries. A majority of these countries was formed through the process of decolonization, the most important form of State creation in the second half of the twentieth century.45 The recent dissolutions of the USSR and the SFRY have also created several independent States. The creation of so many new States has affected both international law and the practice of in-ternational organizations. The question remains whether the creation of States is regulated by international law or whether it is a question of fact – or a mixture of both. A categorization of the ways in which new States have been created helps to identify the legal rules and po-litical considerations involved in different situations. James Crawford has identified the following different modes of the creation of States: 1) original creation of States on unoccupied territory, 2) the creation of States with prior status of dependency, 3) grants by or forcible sei-zure of independence from a previous sovereign, 4) the consolidation of autonomous or separate parts of “divided States”, and 5) the various forms of amalgamation or merger into “unions of States” with distinct legal personality.46

The two most important methods by which new States have been formed are the grant of independence by the previous sovereign (dev-olution) and the forcible seizure of independence by the territory in question (secession)47 Grants of independence involve the consent of


the parent States and thus rarely face objections from the international community.

The opposite method, secession, is frequently condemned and conse-quently rarely successful. Existing States have shown understandable reluctance to accept secession.48 The problems with regard to secession are evident: a general right of secession would destabilize the interna-tional order. Since 1945 there have been numerous attempts of unilat-eral secession by entities within independent States. 49It is important however to note that the option of independence by secession has been successfully invoked only by colonial peoples – that is to say, peoples that have been under overseas domination by the Western colonial powers. Secessionist attempts outside the colonial context have shown one common feature: where the State in question has maintained its opposition to secession, such attempts have received virtually no in-ternational support or recognition, even when other humanitarian as-pects of the situations have triggered widespread concern. No State formed since 1945 outside the colonial context has been admitted to the United Nations over the opposition of the predecessor State.50

The vast majority of new States after 1945 have been created within the decolonization framework by virtue of the traditional reliance on the law of self-determination, accompanied with the need to respect exist-ing frontiers. However, since 1989 the dissolutions of the USSR and the SFRY have modified the law governing independence, especially by highlighting the role and interests of the international community. The EC declarations on the recognition of independence in Eastern Europe in 1991 paved the way for taking many types of considerations into ac-count, including democracy, respect for rule of law, human rights and disarmament.51

b) The legal Framework

The legal framework of independence consists of practices, precedents and principles that can be collected under three headings: 1) self-deter-mination and territorial integrity; 2) effectiveness; and 3) recognition. Each of these then describes an important – indeed crucial – aspect of the law but their relative importance varies in respect of individual cases. While it seems correct to say that every establishment of sov-ereignty has an element of each, their relative significance depends on the concrete circumstances. It is useful to spell these out in a con-densed fashion.

Self-Determination and Territorial Integrity

The most frequently invoked legal principle in connection with the creation of States since 1945 has been self-determination. That prin-ciple entails the right of a people living in a territory to determine the political and legal status of that territory, in some cases by setting up a State of their own. The principle of “self-determination of peoples” is expressly mentioned in Articles 1(2) and 55 in the UN Charter, and implicitly referred to in Articles 73 and 76(b), dealing with colonies and dependent territories. Since 1945 the General Assembly has clari-fied the content of the principle in several resolutions, including above all the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.52 Self-determination has also found its way into international conventions. 53

The 1970 Friendly Relations Declaration by the UN consolidated the position of the principle of self-determination in international law.54

According to the UN General Assembly, self-determination may be achieved in one of three ways: emergence as a sovereign in-dependent State, free association with an independent State, or integration with an independent State.55 Free association or integration with an independent State should be the result of a free and voluntary choice expressed through informed and democratic processes. Although the right to self-determination was elaborated in the context of decolonization it has always been held that self-determination involves no automatic right of secession.

In modern law, the right of self-determination goes hand in hand with a very strong rule in favour of the territorial integrity of existing States. In fact, there is hardly a more firmly rooted notion in international law than the principle of the stability of boundaries.

On the other hand, t0 condition self-determination by the need to re-spect the territorial integrity of States is not absolute. In case of op-pressive regimes, a failure to agree on a regime for internal self-de-termination – or the absence of a reasonable expectation that such a regime could be workable – justifies the extension of the right to form an independent State. 56


Effectiveness

The principle of effectiveness plays an indispensable role in interna-tional law. It is reflected in the creation of States by the insistence that statehood involves the presence of four elements: territory, popula-tion, effective government and capacity to enter into relations with other States.57 While the first two and the fourth are relatively clear, the third criterion – effective government- involves sometimes more com-plex assessments. In any case, for a legal title to emerge a government should be able to maintain control and legal order over the territory it claims its own.58 “Effectiveness” hence is not only about the need to respect established facts. As laid out in a famous case from the 1920’s, only effective governments can fulfil the duty of every State to protect within their territory the rights of other States, in particular their right to integrity and inviolability, together with the rights which each State may claim for its nationals in foreign territory.59

During decolonization insufficient attention to effectiveness often re-sulted in weak or failed States, especially in the sub-Saharan Africa. The consequence of a departure from effectiveness is that new States are incapable of guaranteeing respect for international law.60 Thus, the requirement of effectiveness is a means of ensuring that the new State is viable and in a position to guarantee permanently and reli-ably the enforcement of international law on its territory. In practice, effectiveness is often shown by the willingness of other States to en-ter into transactions with the government of the relevant territory. In this regard, effectiveness amalgamates into the third aspect of the law, namely recognition.

Recognition

Recognition provides a mechanism through which a certain state of law is accepted. The formal act of recognition serves two legal func-tions: first, it determines an entity’s statehood and, second, it lays the basis for the establishment of formal relations, including diplomatic and treaty relations. In principle, recognition of an entity as a State does not create that statehood, only declares its existence.61 How-ever, an entity that does not receive recognition is unable to act as a State. Thus, although statehood is assumed to be present immediately when the criteria for statehood have been fulfilled (territory, popula-tion, government, capacity to enter into relations with other States), an acknowledgment of the presence of those criteria by States is cru-cially important in practice. In borderline cases, such as mini-States

or secessionary struggles or ongoing territorial disputes, recognition by other States may even have a decisive effect on the outcome.62 Fur-thermore, recognition plays a role when a territorial power is invoked in violation of international law, as e.g. in the case of the independent State in northern Cyprus in 1983 which was created through invasion by the Turkish authorities. In such cases non-recognition – especially non-recognition on the basis of a UN Security Council Resolution – is decisive for depriving an otherwise effective entity of statehood.

The importance for statehood of acts of recognition by outside powers can be exemplified in the process of the dissolution of the USSR and the SFRY. Facing the independence demands of numerous entities the EC on 16 December 1991 adopted the “Declaration on the Guidelines on the Recognition of the New States in Eastern Europe and in the Soviet Union” and the accompanying “Declaration on Yugoslavia”. The EC Guidelines on Recognition exemplified the power of the interna-tional community to influence the outcome of struggles for self-deter-mination and statehood. The EC set up conditions on how new States should be organised and held that political conditions should play a decisive role. Altogether, the new law emerging from the events after 1989 has significantly highlighted the role of recognition in granting or withholding statehood.

c) The emphasis on negotiated solutions

The foundation of the international legal system as well as the basis for the United Nations lies in the sovereign equality of all States (Article 2 (1) of the UN Charter). This is interpreted that the consent of States is required in order for States to be confronted by new legal obligations or impairing their existing legal rights. In order to decide disputes over their rights and duties States must settle their disputes peacefully (Ar-ticle 2 (3) of the Charter). Under Article 33 of the Charter parties to any dispute which endangers the maintenance of international peace and security shall “first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to re-gional agencies or arrangements, or other peaceful means of their own choice”. 63 These principles were reinstated in the CSCE’s 1975 Helsinki Final Act. 64

The general obligation to negotiate corresponds to the practice of States: the vast majority of disputes are settled by direct diplomatic negotia-tions between the parties directly concerned. This practice extends to


territorial disputes and State creation; negotiation and agreement are described as among the most important methods by which new States are formed.65 The ICJ has also recognized the importance of a negoti-ated solution with regard to the establishment of States.66

In the Yugoslav context, the European Community and its Member States emphasized a peaceful and negotiated outcome regarding the conflict in the Balkans.67 This is also reflected in the Guiding Princi-ples of the Contact Group for a settlement of the Status of Kosovo68, in which the Secretary-General set forth to the Special Envoy that a ne-gotiated solution should be an international priority. The UN Security Council has also in the conflict between Georgia and Abkhazia stressed the need for negotiations and political dialogue in finding a compre-hensive solution.69 In conclusion, in situations of secessionary efforts international law requires the territory attempting to secede and its parent State to negotiate a solution.

d) Conclusion: General rejection of secession outside the Colonial Context

The argumentation presented above shows that the attainment of in-dependence by an entity is presently legally controlled by three sets of considerations:

1) The joint self-determination – territorial integrity principle;

2) The stress on the need to guarantee the effectiveness of the relevant entities; and

3) Recognition policies of the various States and international organizations.

The role these considerations play in actual circumstances varies in re-lation to the practical, historical and ideological aspects of each situa-tion. During decolonization, the right of self-determination was under-stood predominantly in terms of the attainment of independence of the colonial entity – often without too much respect for the effectiveness of the political order on the ground. It is important to mention that since 1989, non-colonial situations have been treated as largely sui generis, on the basis of their merits. The dissolution of the USSR took place largely by agreement, following the territorial boundaries of old Soviet republics70 Cases such as Namibia, East Timor and the dissolution of the SFRY have highlighted the role of the international community, especially the UN Security Council. In the dissolution of the SFRY also

the EC played an important role: the relevant principles were, on the one hand, the need to respect the old internal boundaries and, on the other hand, respect for various rules in minority protection, rule of law and peaceful settlement.

Notwithstanding the increased role of the international community and emphasis put on political considerations based on case by case analyses, nothing has altered the fact that the law governing independ-ence – taken the body of rules in toto or separately – does not set forth a right to unilateral secession outside the colonial context. This has been the case even where the secessionist entity has enjoyed wide de facto independence from the central power.71 Instead, the right of self-determination has found realisation within arrangements that pre-serve territorial integrity. This practice is reinforced by the prominence given to negotiated solutions in international law.

e) application of the law to the Cases of abkhazia and south-ossetia

On the basis of the foregoing analysis of the law applicable to statehood it is possible to draw certain conclusions regarding the legal position of Abkhazia and South-Ossetia and the claims of unilateral secession made by the two entities. In this process, two key issues should be borne in mind. First, the law governing self-determination is not, and has never been, a set of “automatically” applicable rules or absolute standards. It consists, rather, of a mixture of considerations, pointing in different directions and with an emphasis that varies on a case-by-case basis. In practice, this means that while sometimes claims for full political independence have been considered very important (in prac-tice, only in colonial situations), at other times emphasis has been put on dealing with specific grievances by way of cultural or regional au-tonomy arrangements, minority rights regimes, representation in na-tional institutions or particular legislative reforms, often supervised by international institutions, and so on. There is no a priori limit to such institutional solutions.

Second, key contextual determinants has been, on the one hand, the very strong prohibition of the use of force in present-day international law and the increasing involvement of the international community (in practice the United Nations) in the process of reaching a negotiated solution. On the other hand, the attitude of the territorial sovereign – whether it has been open to serious negotiation on the claims of the


self-determination entity – has likewise been important. In particu-lar, violent suppression of self-determination demands tends to sup-port the view that the only feasible solution may be sought from full independence.

The obligation to settle disputes peacefully under the UN Charter ap-plies to all the parties. As such Georgia is under an obligation to take seriously the self-determination claims made by Abkhazia and South-Ossetia and must show willingness to accommodate them (as point-ed out above, such an obligation exists already under Georgia’s own constitution). On the other hand, the representatives of the claimants must likewise be open for a negotiated solution. It appears that this has not always been the case. For example in 2001 the UN Security Council called “in particular [on] the Abkhaz side, to undertake im-mediate efforts to move beyond the impasse”.72 There is no lawful way for unilateral solution on either side. The conclusion of this is that any solution that would involve the use or threat of force by either side may not create legal rights and in all likelihood will not be recognised by the international community.73

The International Court of Justice is clear about the fact that the right of peoples to self-determination is today a right erga omnes.74 It can be invoked against all the members of the international community. All States are called upon to respect it. The representatives of Abkhazia and South-Ossetia have formulated their claims of secession in terms of their right of self-determination. The legal validity and consequences of that claim bearing in mind also what has been said above about the principles of effectiveness and recognition by the international com-munity should be clarified:

As a “principle”, it has been said, “self-determination of peoples is not the inductive summation of specific rules but the formulation of a fun-damental value of the international community entailing consideration [of] non-exploitation or domination”.75 In other words, even as an im-portant legal principle, self-determination is both abstract and politi-cally loaded. Drawing definite conclusions for single situations from it is a complex and sensitive endeavour. It is an expression of justice that is at its strongest in situations of manifest oppression directed against a determinate human entity. In such cases – that is, where owing to the oppressive behaviour by the parent country there is no likelihood that any other arrangement apart from full independence will work – seces-sion may emerge as a feasible alternative. In practice, it has been above

all colonialism that has constituted such oppression. 76 So far, even as all parties have provoked armed clashes and engaged in them, there is no evidence of such oppressive behaviour by Georgian authorities that would warrant recourse to the exceptional solution of full inde-pendence. To the contrary, it appears that all sides have engaged in ag-gressive behaviour against each other and against neighbouring ethnic groups. In this respect, the claimant entities have through their own behaviour undermined their claim to full independence.

Finally, in order to analyse the legal meaning of the right of self-de-termination one can break it down into two elements: the fact that the right belongs only to an entity that can be called a “people”, and the fact that the right is ambivalent about what its consequences are. These aspects are not independent from each other, so that the answer to the first question may have an effect on the response to the second. Never-theless, it is still useful to consider them separately.

The question of what is a “people” (or a “nation”) enjoying the right of self-determination has been a much debated topic of international law and jurisprudence.77 There are no objective, pre-determined criteria about this. Criteria sometimes suggested and applied as elements in a definition of “people” include shared ethnicity, religion, history, lan-guage and territory. However, although all such indicia are relevant, none of them works so as to automatically determine the presence of a “people” in the legal sense. A shared language or religion may some-times support a sense of national identity, sometimes not. The fluid-ity of such criteria points to the fact that in a sociological or historical sense being part of a “people” involves a sentiment, or a psychological “feeling” of belonging to some larger entity. International law cannot, however, and does not endow rights on the basis of (subjective) “feel-ings” but aims to make them concrete by reference to (objective) crite-ria. It is at this point that the legal principle of “effectiveness” receives its significance. How “effective” or “real” are Abkhazia and South-Os-setia as self-determination entities?

As regards Abkhazia, there is little doubt that the Abkhaz population not only feels itself a distinct “people”, and can be described as such at least through the application of the ethnic, religious and linguistic criteria as well as a shared history to some extent separable from the histories of the other communities in the region. Also, it appears that the identity of the Abkhaz people as a people separate has been accept-ed by the Georgians. The matter is somewhat more doubtful in regard


to South-Ossetia. This is a small population of a number in the range of 70,000. Here the relevant subjective “feeling” links more to a sense of identity as “Ossetia”, that is to say, as part of a larger population some of which lives in the territory of Russia. It must be pointed out, however, that in view of the practice of the United Nations, questions of economic viability or population size, often referred to in regard to the two territories as undermining the claims to independence, are not prima facie relevant for the qualification as “people” nor even to even-tual independence. 78

However, from the abstract definition of Abkhazians and South-Os-setians as “peoples” (with the qualifications stated above), not much follows in regard to how their right of self-determination ought to be realized. In this regard, three preliminary considerations complicate the picture.

One is the matter of territorial dispersion. The 1992 Georgian-Abk-hazian conflict led to a massive refugee flow of non-Abkhaz popula-tions (that is to say, mostly Georgians) into the rest of Georgian ter-ritory – over 300,000 displaced persons – completely transforming the population composition of the territory. From a mere 18 %, the ratio of Abkhazians arose to close to 50 %. International law has a very strong preference against forced population transfers. The same could be applied in this case. It is one thing to recognize the Abkhazians as a “people” in the legal sense, and another to link to that “people hood” the right of control over a determined territory – in this case the ter-ritory of Abkhazia – in which other populations also have (had) their home. As pointed out above, the application of the principle of self-de-termination is largely conditioned on principles of justice and equity, in particular oppression against a minority by the majority. To link to the Abkhazian population’s status as a “people”, the right of control over the territory now defined as “Abkhazia” in a situation where a sig-nificant part of the population has been driven into exile would reward past ethic cleansing and be contrary to the basic premise of the princi-ple of self-determination that seeks a just outcome for both Abkhazians and non-Abkhazians. This has also been the premise of the “Paper on Basic Principles” and the relevant UN Security Council Resolutions. Whatever consequences will flow from the right of self-determination that undeniably belongs to the Abkhaz people, they cannot undermine the position of the refugees and internally displaced persons (IDPs).

A second matter is that of plebiscites. The de facto authorities in Ab-khazia and South-Ossetia have organised several times referenda that have allegedly supported overwhelmingly independence, the most re-cent one organised in November 2006 in South Ossetia. These plebi-scites have not been internationally monitored nor recognized.79 How-ever, representatives of the Russian Federation pointed that this ex-presses the wish of the South-Ossetian people and cannot be ignored. Whether the plebiscites have been technically correct or not, from a legal point of view they change nothing in regard to the law’s strong preference against unilateral secession. Plebiscites are a normal and often used means to find out the views of a population. Hence even if people express its wish for secession, this does not mean that it has a right to secession.

The third fact has to do with a concern that relates to the effectiveness of the entities. As pointed out above, it does not really matter to use actual territorial control, population or economic activity as arguments to make a claim for independence. Nevertheless, the claim needs to be genuine in the sense that its objective is truly the formation of a State that is both capable of fulfilling its international obligations and actu-ally intends to do so. It has been a persistent impression among inter-national observers that the actual independence sought after by Abk-hazians and South-Ossetians does not refer to creation of a sovereign state but that in fact, the entities would become, to different degrees politically, militarily and economically dependent on, if not part of, a third State, namely the Russian Federation There are several cases in international practice where the international recognition of statehood has been conditioned upon the sense of the genuineness (or otherwise) of the independence of a territorial entity as in the Manuchukuo claim in China 80 or the international community’s rejection of the claims of secession of Krajina and Eastern Slavonia from Croatia during the Yugoslavian succession wars. 81 It is also known in judicial practice, ei-ther, to take account of relationships of de facto dependency.82 In sum, international law does not recognize “independency” for the purposes of statehood in cases where a territory is under foreign domination or control on a long-term basis.83

To conclude, the condition of effectiveness of an entity is significant as a measure of the genuineness of the claim for self-determination. International law is not a formalistic structure; it habitually looks be-yond formal claims to the reality of the interests for which protection is sought. It does not consecrate claims that are in fact intended to


achieve other objectives (e.g. boundary changes) than those that they declare on their face. Even if it were the case that conditions for seces-sion might be present (which, as stated above, is not now the case), the representatives of Abkhazia and South-Ossetia would have to sat-isfy the international community of the genuineness of their claims – that is, that they do not merely amount to attempts to seek unilateral changes of Georgia’ s boundaries. It is difficult to see in what other way such assurance could be given than through serious and constructive participation in negotiations with the representatives of Georgia on the actual grievances suffered by those populations within Georgia.

The Abkhazians and South-Ossetians undoubtedly have, to quote Opinion 2 of the Arbitration Committee of the Peace Conference of the Former Yugoslavia from 1992 “the right to recognition of their identity under international law” and they are “entitled to all the rights accorded to minorities and ethnic groups under international law”.84 They do not have a right of unilateral secession. Such secession could only be war-ranted if it were shown that the Abkhazians or South-Ossetians have been under unjust exploitation or domination by the majority popula-tion and that situation could no longer be corrected within the unitary State. Of course, the separation of the territories could take place with full consent of everyone, including that of refugees from the territories. This is currently impossible. But independence is not the only way to realise the right of self-determination. Alternatives to it include vari-ous federative and autonomous arrangements.

4. FeDeraTIVe anD aUTonoMoUs arranGeMenTs

a) Introduction: the territorial integrity – group rights nexus

Whilst the above has shown that there is general rejection of secession-ist claims and attempts in modern international law and state practice, this should not imply a complete dismissal of the concerns of an ethnic minority or people. Instead the concern of secession are directed to set-tlements within options and solutions within the confines of the sover-eignty of a unitary State based on the basis of a negotiated settlement between the opposite extremes of secession and territorial integrity.

Indeed, the realization of the demands of the world’s all ethnic groups could not be met if solutions below full independence were not accept-able or desirable.

There are numerous arrangements in the world that strive to reconcile the sovereignty and territorial integrity of a State with the demands of self-determination by minorities or peoples living inside the territory. 85It enlisted “self-government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people, but fully cognizant of other recognized principles such as sovereignty and territorial integrity”. 86 What is important to point out is that prac-tice demonstrated that all such arrangements are always created ad hoc, based on the specific circumstances of each case.87 There is in fact no standardized way of reconciling territorial integrity with demands for self-determination. However, some of the solutions arrived at in many instances resemble each other as they entail greater political autonomy for the community that seeks protection from a larger society within a State.88 This strengthens their value as legal precedents. The following outlines key features of different options based on a case analysis of five cases: South Tyrol/Italy, Aceh/Indonesia, Aland Islands/Finland, Quebec/Canada and the Constituent Entities (the Federation of Bosnia and Herzegovina & Republika Srpska) of Bosnia and Herzegovina. The details of each specific arrangement are not spelled out here but are summarised in a generalised manner.

b) Federalism and autonomy

Ethnic conflicts that involve demands of self-determination against the territorial integrity of a State have frequently been resolved through granting autonomy to the claimant group. The common trait for both autonomous and federative arrangements is that a part of a State’s ter-ritory is authorized to govern itself in certain matters by enacting laws and statutes – but without constituting a State on their own. Thus, the limit for these arrangements is sovereignty.89

Although there is no accepted definition of autonomy under interna-tional law it is generally understood to contain independence of ac-tion on the domestic level within defined areas that do not threaten the survival of the parent State. Hence, functions relative to international status and political unity, conclusion of international agreements, for-eign relations, defence and currency matters are usually excluded from autonomous arrangements. The degree of autonomy is often measured


according to the extent of legislative power that is transferred to the autonomous territory. Autonomy is, however, different from ordinary local or regional self-government as it purports to take account of the historical and regional circumstances of a minority or a people.

Another form of arrangement that takes account of several different linguistic or ethnic groups – perhaps even better than autonomy – is federalism. In federal states the constituent entity has besides local powers a right to participate in central affairs through involvement in national decision-making through organs of the federal state.90 Hence, constituent entities of federal states enjoy greater power than autono-mous territories do. James Crawford has identified five features that characterize all federations: 1) a division of powers between a central and regional government, 2) a certain degree of independence between central and regional governments, 3) direct action on the people by both the central and regional governments, 4) some means of preserv-ing the constitutional division of power, and 5) the central govern-ment’s powers includes substantially the whole foreign affairs power, together with autonomous authority extending to aspects of the inter-nal affairs of the local States.91

Constitutional Guarantees

The multitude of arrangements granting autonomy to territories re-veals the varying methods of fixing the basis of the arrangement in the national legal order.92 Arrangements establishing autonomy for terri-tories should, however, – if permanency is aimed at – be fixed through inscribing them in a national constitution or another act that is above ordinary law. Additional protection to the arrangement can be provid-ed through ensuring that the autonomous status of a territory cannot be altered without the territory’s own approval.

In federations, the federative character which allows for self-rule of the constituent parts is guaranteed by the constitutions. Thus, the powers of these sub-entities automatically enjoy constitutional protection. The constitutional guarantees of federative entities are consequently high-er than that of autonomies as one central element of federalism is the participation by the territorial unit in nation decision-making. Hence, federative constitutions cannot be changed without the participation of the self-governing entity itself.

Another feature that separates a federative arrangement from various autonomous arrangements is that the constituent entities are entitled

to adopt their own internal constitution. A hierarchical order between the national and local constitutions guarantees priority to the former and consequently the Entities must fully comply with the national constitution.

Local Competencies

The starting-point for any autonomous or federative arrangement is that the central government is willing to bona fide give away some of its authority to the local entity. Meanwhile the central government retains its own powers with regard to issues that are considered essential for its political unity. Competencies that generally belong to the local en-tity include education, culture, language, health and social affairs, land policy, protection of the environment, regional economic development and trade, natural resources and transportation. Matters falling under internal security such as local police and security forces also tend to be-long to local competencies. The central government is usually unwill-ing to concede powers in the field of foreign policy, defence matters, fi-nancial policy, customs and immigration matters, and criminal law.93

Organs

Autonomies almost universally exercise their local legislative power through locally elected legislative bodies. They nevertheless vary with respect to denomination of the legislative assembly itself and its re-spective enactments, the extent of their powers,94 as well as who is eli-gible to it.

Participation in National Decision-Making

The main difference between autonomous and federative arrange-ments lies in the participation of constituent entities in national deci-sion-making in the latter cases. The extent can vary enormously. Au-tonomous arrangements also include fragments of such power.

Powers in the Field of International Relations

The powers of autonomies and constituent parts of federative States are not always limited to internal competencies. Sometimes these ar-eas possess powers to act on the international plane. Since questions of national defence almost without exception belong to the central or national government together with foreign policy, one remaining area in the field of international relations in which autonomous or federa-tive entity might have powers is the right to enter into international


agreements.95 Their treaty-making power is, however, generally limited to the areas that fall under their competencies, e.g. economic, cultural and social matters. The limited treaty-making power might further re-quire the approval of the central or national government.

Whereas the examination reveals that the autonomous entities exam-ined here possess no or only marginal powers in international rela-tions but that those of federative character do have some power in the field, practice has shown that powers on the international plane does not necessarily correspond to the success of the arrangement. As Hurst Hannum has noted: “areas described as enjoying the greatest autono-my in the area of foreign relations have not necessarily been the most successful”.96 In addition, granting international powers – even limited such e.g. in the economic and cultural fields – requires trust by the self-governing entity’s central government of neighbouring States.

Financing

Any meaningful autonomy requires economic development of the ter-ritory in question. Hence, the legal basis for any autonomy should in-clude powers also in the field of economics and finance. First, a basic requirement for any autonomy is that the territory must have funds at its disposal. These are usually received through taxation powers, al-location of resources from the central government or through incomes from natural resources. Second, the territory in question should have authority to dispose of the money available to it. Indeed, all the five ter-ritories have taxation powers and budgetary powers to a varying extent based on their local competencies.

Protection of Multi-Ethnicity

One problem which many autonomous areas and federative entities have to face when exercising self-government is the way in which they protect other ethnic groups or minorities within their jurisdiction as no self-governing entity would be completely homogenous. No matter how internal boundaries are drawn there will always be trapped mi-norities within, vulnerable to the ethnic superiority of a new majority of the self-governing entity. Therefore, the very precondition for au-tonomy or federative arrangements is compliance with human rights and minority protection.97

Protection of other ethnic groups than the majority residing in the au-tonomous area has been a prevalent feature in some of the cases under study here.

The Role of External Actors

An examination of the autonomous or federative structure of South Tyrol, Aceh, the Ålands Islands, and Bosnia and Herzegovina clearly reveals the importance of having external actors involved in finding a solution for the conflict as well as for upholding the settlement. Of the five explored cases only Quebec has to solely rely on internal guaran-tees provided by the Canadian constitution. Whereas the precise legal status of all the other autonomous or federative entities in this study also fall back upon constitutional provisions, they are preceded by in-ternational instruments or procedures setting down the framework for the autonomy or federative model to be implemented. Accordingly, the autonomous or federative entities also enjoy an international en-trenchment of their status.

In the cases of South Tyrol, the Åland Islands, Aceh, and Bosnia and Herzegovina, either third States, international organizations or other third parties have been involved. Third States have played a significant role in most of the cases. The settlements of both South Tyrol and the Åland Islands exemplify that neighbouring States with a vested inter-est – such as linguistic or historical ties with the unit claiming self-determination – have been given some functions in the settlements of the conflicts.

The importance of third States was only augmented in the arrangement created with respect to Bosnia and Herzegovina. Here, the international community sought to ensure respect for and the implementation of the Dayton Agreement by instigating institutional and third party guaran-tees. Both military and civil aspects of the Dayton Agreement which settled the federal structure of Bosnia and Herzegovina have been in place since the settlement in 1995. Today, the European Union Force in Bosnia and Herzegovina and the Office of the High Representative re-main the bastion of international presence in the territory. Moreover, a number of States acted as guarantors or witnesses to the Dayton Agree-ment. The Contact Group composed of France, Germany, Russia, the United Kingdom and the United States were witnesses to the Dayton Agreement since they had led the negotiations leading up to the settle-ment. Also in Bosnia and Herzegovina the neighbouring States Croatia and the Former Republic of Yugoslavia have been guarantors of the peace by acting as parties to parts of the Dayton Agreement. The cir-cumstances in the Balkans were, however, extraordinary compared to


the other cases examined as the situation in the Balkans was declared a threat to international peace and security by the Security Council.

Other external actors have been involved in the settlement of the con-flicts as well. In the Ålands Islands case the League of Nations became the forum in which deliberations and guarantees were undertaken. The recent solution to the Aceh case has also brought to the forefront the importance of actors outside governmental circles. The Crisis Manage-ment Initiative, provided a mediation track for the Aceh/Indonesia Peace Agreement, whilst the monitoring of the agreement was left to the Aceh Monitoring Mission, a European Union led mission under its common security and defence policy. Thus, the role of regional organi-zations has come to expand outside their own borders.

5. In searCh For solUTIonsAs explained above, the substantive law that frames the Abkhazian and the South- Ossetian conflicts consists of three parts: (1) the self-deter-mination / territorial integrity-rule; (2) effectiveness; and (3) recogni-tion. These lay out the material conditions within which the question of the possible independence of any entities – including the two seces-sionist regions – will fall. In addition, international law lays out two procedural conditions for any settlement, namely (1) that the solution must be found through peaceful means and (2) that in case the conflict threatens international peace and security, it must be settled through negotiation between the parties, if necessary with appropriate inter-national assistance. From the substantive and procedural law several conclusions may be drawn in regard to the search for solutions in the two conflicts.

a) The need to Find solutions outside the Independence Framework

In section 3 e) it has been concluded that at least at present, the Abk-hazians and South-Ossetians do not have the legal right of unilateral secession. This follows from the law’s predominant concern for peace and stability of territorial situations.98 It also finds support in the nu-merous resolutions of the UN Security Council that reiterate “the com-mitment of all Member States to the sovereignty, independence and

territorial integrity of Georgia within its internationally recognized borders”.99

This entails that the conflict needs to be resolved between the two entities and Georgia. If Abkhazian and South-Ossetian political lead-ers have set independence as a goal to be reached in the future, it is a goal that may be attained only through peaceful means and by nego-tiations with Georgia, as appropriate with international assistance. No unilateral action – and even less unilateral military action – may lead to independence. Also third States may not recognize a situation cre-ated by the use of force. On the other hand, the Georgian government must be willing to accede to appropriate legislative and administrative reforms so as to realize a meaningful system for Abkhazia and South-Ossetia to exercise their right of self-determination. In particular, any attempt to force a solution by unilateral means is not appropriate and thus should be ruled out. Although, as provided above, internation-al law has a strong preference for the territorial integrity of existing States, that principle is not unconditional. If the conditions of effective self-determination are not genuinely provided, then the international community may begin to give support to independence.

b) The application of the right of self-Determination outside the Independence Framework

Even though the right of self-determination does not guarantee an au-tomatic right to independence, it is by no means without effect in situ-ations such as Abkhazia and South-Ossetia. The substance of the right to self-determination extends from the provision of minority rights, including linguistic and cultural rights to appropriate arrangements for political autonomy within the framework of an existing State. A limit case is a federal arrangement with formally equal parties under a unified sovereignty. Here there is much room to maneuver. Apart from prohibiting the giving of effect to unilateral secession100, inter-national law does not spell out any uniform way in which the right of self-determination is to be realized. This will have to be the object of negotiation between Abkhazians and Georgians on the one hand, and South-Ossetians and Georgians on the other. However, it is clear that the nature of the self-determination arrangement must reflect the his-torical situation prevailing in relations between the self-determination community and the territorial State of which it is a part as well as the


nature of the needs and wishes of the relevant populations. Although, it may be realistic to assume that any negotiation/mediation frame-work will have to involve third parties, possibly international actors, and could well involve States that are direct stakeholders, the only par-ties with a decision making power are the parties directly involved. The extent of their involvement and methodology in involving them must be carefully planned and depends also on the institutional framework. This will be discussed in section d) below.

While the appropriate level of self-determination rights must be sub-ject to negotiation between the entities and the Georgian government, international law and practice do provide pointers or directives as to how the appropriate level ought to be determined. Four sets of consid-erations are relevant here:

the history of the relationship between the entities and the Geor-1. gian government;

the nature and focus of the self-determination claims (preserva-2. tion and flourishing of language, religion, culture, economic life, security, political autonomy);

the degree to which there are different groups or populations in 3. the relevant territories whose position needs to be safeguarded as against local majorities;

The role of external parties (international assistance, supervision, 4. and possible guarantees).

It may be said, tentatively, that the claims and situation of Abkhazia and South-Ossetia, when assessed from a legal point of view, are not identical. The notion of Abkhazia as a self-determining entity with an extensive system of self-determination as political autonomy has been deeply rooted in the history of the region. The viability of Abk-hazia as a self-determining entity is also de facto greater than that of South-Ossetia. Likewise, the ethnic and other composition of the two regions is completely different. The Abkhaz population is larger than the South-Ossetian, and the general perception of Georgians tend to regard Abkhazia as the native land of the Abkhaz people, whereas their stance towards South-Ossetians is more ambivalent. There is no a pri-ori reason to think that identical or even parallel solutions ought to be designed for the territories. Nevertheless, it is useful to emphasize that whatever the solutions, they cannot be “automatically” deduced from

international legal rules or principles but must be negotiated between the parties.

c) Possibilities and limits to solutions in the 1995 Georgian Constitution

The status of the territories will have to be negotiated with the view to reaching a comprehensive instrument or instruments that will have constitutional status in Georgia and, as appropriate, will be guaranteed by members of the international community in one way or another. The central matter to be decided will be the precise relation to be estab-lished between the national government of Georgia and the territories. As noted above, the exact content and/or application of an Abkhazia status law has yet to be determined and the Constitution has no ex-press provision at all for a South-Ossetia status law. For Abkhazia, an instrument for autonomy or another arrangement would have to be agreed; for South-Ossetia, there would have to be both a constitutional provision for an autonomy instrument as well as such an instrument itself.

The 1995 Constitution of Georgia both enables and obstructs the reach-ing of a solution. Three considerations are particularly important:

(i) the heightened position of territorial integrity under Georgian con-stitutional law, and the impediment this might be said to present for revision of the “State structures” of Georgia;

(ii) the incorporation into Georgian constitutional law of an interna-tional obligation to prosecute persons suspected of war crimes; and

(iii) the under-specification of the status of South-Ossetia in the ex-isting constitutional framework (and, possibly, dispute relative to the borders of the South-Ossetian territorial unit).

At the same time, certain aspects of the 1995 Constitution facilitate a settlement process. The Constitution of Georgia:

(i) incorporates a high receptivity to rules and principles of interna-tional law—both of general and of conventional derivation;

(ii) transposes into Georgian law commitments already undertaken by Georgia at international level relative to resolving the autonomy questions in Abkhazia and South-Ossetia, including commitments respecting minority and group rights;


(iii) accommodates the co-existence of provisions that Georgia is “uni-fied and indivisible” with special status to Abkhazia (and Ajara) and future measures according such status;

(iv) is not exclusive as to the territorial units which may be subject to special status and rights as units within the Georgian State and does (for instance through the clause respecting minority rights, article 38(2)) not preclude special autonomy arrangements for South-Ossetia, including such as expressly permitted for Abkhazia and Ajara;

(v) Permits the central government organs responsible for the con-duct of foreign policy to commit Georgia to a multilateral settle-ment process relative to Abkhazia and South-Ossetia, and to final agreements of internationally binding character in this regard.

In summary, there is no reason to think that the Georgian constitution would put serious obstacles to what could be agreed. On the contrary, the provisions of the Constitution appear to be so flexible as to accom-modate almost any solution that respect the intangibility of Georgia’s boundaries.

d) Towards a Mediation or negotiations Framework

As we have established, International law guarantees an unspecified right of self-determination to Abkhazia and South-Ossetia. At the same time it imposes on Georgia the obligation to negotiate with the rep-resentatives of the two entities the specific content of each of the ar-rangements. None of the parties are entitled to have recourse to force in order to support their position, and foreign States are under an ob-ligation not to recognize any new territorial situation so created. This leaves the question of who the ‘representatives’ of these entities are, open.

It has also been established that the nature of the conflict in intra state, there fore internal, again implying that the future arrangements will have to be agreed upon between Georgia on the one side, and repre-sentatives of the two entities on the other.

The analysis has also shown that the two conflicts despite many com-mon features are separate and ought to be negotiated separately unless there are weighty reasons speaking to the contrary.

In the course of the years, negotiations over the fate of the two seces-sionist territories have taken different forms. At the outset, the disputes were negotiated directly between the representatives of Georgia and the breakaway regions. Continued tension and armed conflict, includ-ing breaches of prior agreements and pre-emptive activities on all sides , have failed to create trust or common ground that make meaningful direct negotiation on the final settlement impossible. The conflicts are so deeply entrenched, and focussed on respective positions rather than solutions that involvement of third parties as mediators or facilitators has appeared necessary.

At this point it is important to point out the different approaches that guide negotiation and mediation. Whereas a negotiation is a bargain-ing relationship between parties in a conflict, that is voluntary, and where parties need to educate one another, a mediation is an extension or elaboration of a negotiation which involves a third party, who as-sists the parties to attain a mutually acceptable settlement of the issues of the dispute101. A negotiation is of polarised nature, within a ‘zero sum’ perspective, mediation is multipolar and is focussed on ‘win-win’ situations.

The role of third party mediation is to attain a common level of under-standing of the need of a solution, and to allow parties to voice their interests that are communicated in their positions. An interest based mediation, would consider the search for a common solution workable for all parties. The pre-conditions are that parties will understand the way in which the negotiation and mediation is structured, and to create an atmosphere in which these issues can be discussed in a congenial manner. Whilst this might seem to be an abstract and idealistic con-cept, one should first point out the role of official third party mediation frameworks, such as the UN, the OSCE and possibly the EU, as well as unofficial or Track II third party mediation. Secondly we will consider possibly methodologies that could be employed to instigate mediation. It should be noted that mediation and negotiation are seen as two dif-ferent methodologies. A further important pre-condition for third par-ties involved to a mediation framework should be a full commitment to support the instigation of a mediation/negotiation, the mediation in itself as well as the implementation of a peace agreement, which could involve monitoring of the peace agreement through external observers, security sector reform, disarmament demobilisation and reintegration.


Official third party mediation has so far been played principally by the United nations and, to a lesser extent, the OSCE.

As regards Abkhazia, the formal international involvement has taken place predominantly through the activity of the “Group of Friends” (France, Germany, Russia, the United Kingdom, and the United States) whose involvement and proposals have been endorsed by the UN Se-curity Council. It must be stressed that from a legal perspective, this is, indeed a self-evident manner of conducting the negotiations. After all, under Article 24 (1) of the UN Charter, Member States have agreed to “confer to the Security Council primary responsibility for the mainte-nance of international peace and security” and above all “agree[d] that in carrying out its duties under this responsibility the Security Council acts on their behalf”. There is a very wide contemporary practice of creating informal groups of “friends” (or “contact groups”) from mem-bers of the Council to deal with particular conflicts. Objections have, however, occasionally been raised in this regard owing to the presence of Russia among the “friends” and Russia’s keen interest in the support of the separatist movements. At the same time it should be pointed out that Security Council involvement through Council Members without Russia’s participation would be both legally inappropriate and (prob-ably) politically unthinkable. The formal equality of the permanent members suggests that if any one of them (and in particular any one of the three leading powers) is involved, then the others cannot be ex-cluded if they will participate (and it is obvious that Russia wishes to).

However, there are many other potential alternatives for mediation, conciliation and even arbitration, and Article 33 of the UN Charter that obligates Member States to have recourse to such (and other) mechanisms does not lay out any precedence between them. Here the principle of “free choice of means” is only affected by what in the cir-cumstances may seem, all things considered, an equitable and effective solution and – which is to say the same thing – what the parties are willing to accept.

Such mechanisms could involve the good offices function of the UN Secretary-General that has been successfully employed in a number of situations in the recent years.102 In fact, the successful negotiations between the Georgian and Abkhaz sides that resulted in the cease-fire in 1994 were chaired by the UN Special Envoy.103.

Alternatively, special attention can be given to the OSCE not least ow-ing to its previous involvement in the conflicts. Here particular atten-tion should be drawn to the OSCE dispute settlement mechanisms from 1991 and 1992 that involve both mediation and conciliation.104 The former include various procedures for the participation of a third party mediator in a dispute. This could be either an individual or a panel that would ultimately be entitled to propose a (non-binding) substantive outcome if the parties have failed to reach such among themselves105.

Of course any third mediator or negotiator in these conflicts need not necessarily be an international organization, provided that the choice is proposed and accepted by the parties. It is also common that indi-vidual States or groups of States act as mediators. These could be third states with a proclaimed interest in sustainable peace and stability in the region. An obvious ‘candidate’ of a mediation would be a regional organization – the European Union which has a proclaimed policy in-terest in the stability and security of its neighbourhood and is engaged in political dialogue with Georgia and with one of the stakeholders, Russia. Whilst it does not have yet an established mediation frame-work, this task could be taken up by the EU special Representative to the Region, or a representative appointed by its member states. As the EU has a strong engagement in terms of its policies and financial in-struments (ENPI and Stability instrument) in the region, it could have the means for supporting a peace process beyond the mere mediation of a peace settlement.

A forth, and somewhat untraditional format would be the appointment of a non-official mediator such as an organization or a representative thereof. Whilst these have no formal decision-making power (thus com-mitted to genuine, non power based mediation), their advantage lies in flexibility, secrecy, and the ability to create a ‘safe’ space to explore is-sues and interests that might not surface in official negotiations. These in turn facilitate communication and might create common ground and understanding of key issues to be explored. Such efforts can be supported by regional or international organizations to facilitate the implementation of a possible peace agreement.

Finally, it is worth noting that a combination of third parties is possible with explicit role sharing. For example, the UN could through its good offices provide for a mediator who could come from an EU member state, where the EU could provide a framework for pre-mediation, and


post conflict reconciliation measures as well as monitoring, possibly in partnership with the OSCE.

With this in mind, it is worth reflecting on the principles and method-ology of a possibly mediation and negotiation framework.

First of all, regardless of the formats exemplified above, the prospects of success in such mediation obviously depend on the credibility of the chosen mediator. Credibility applies to impartiality and skills of a me-diator. The mediator should be accepted by the parties involved. If this is not the case there is a possibility to appoint two mediators, albeit with the same pre-condition.

Second the structure and the goal of the mediation needs clearly spell-ing out: The mediation structure, methods and purpose, the role of par-ties and stakeholders and the ‘ground rules’ are key elements of such.

Third, in a pre-mediation phase it is useful to involve fact-finding proc-esses and pre- mediation dialogues with the parties– a technique that might be useful if breaches of cease-fire have occurred or lack of trust relates to other unclarified past events. This could include technical assistance as well as a legal assessment of the claims and the interests might be part of such mediation.106 In this way, a mediator might be able to isolate some particularly difficult questions and issues and in-terests to be reconciled. As it has been pointed out, mediation is par-ticularly relevant in situations of stalemate where the parties have to rethink their positions (such as that in Abkhazia and South-Ossetia).107 Such activities are crucially dependent on the provision of adequate resources to the mediation project.

Forth, within a pre-mediation it could be useful to organize a Peace Conference to give its authoritative opinions on the legal questions that arise in the context of the settlement of the conflict. The agenda of such should involve key issues that pertain to the positions of the parties, such as rights of the various populations 108 . In the long run, these opinions can remove some of the more difficult questions away from the negotiation/mediation table, thus facilitating focus on the overall settlement. At the same time this could allow for a reframing of the overall issues.

Finally a base document for the future talks is necessary. So far, no document has so far emerged that would have attained status as a mu-tually accepted basis. However, the document titled “Basic Principles

for the Distribution of Competencies between Tbilisi and Sukhumi” has been developed by the Group of Friends and subsequently endorsed by the UN Security Council.109 In the absence of any alternative docu-ment, these principles ought to be taken into account in the upcoming negotiations.

The form of the negotiation should not prejudice their outcome. The outcome(s) ought to consist of:

(1) A law or laws adopted at a constitutional level that enshrines the status arrangement agreed for both territories;

(2) An international instrument that “internationalizes” all or the most important parts of these arrangements and provides for an international system of transition, assistance and guarantee.

e) The Content of the agreements on self-Determination

As stated above, the content of the agreements on the self-determina-tion of Abkhazia and South-Ossetia will have to be left for the parties themselves. Nevertheless, international law practice lay out a number of considerations that ought to be taken account in those negotiations. These include:

An agreement on constitutional issues between the central govern-I. ment and the relevant entity seeking autonomy;

A division of internal (and possibly some external) powers be-II. tween the central government and the autonomy organs, including mechanisms for participation in national decision-making;

Provisions for the cultural, linguistic and, above all, economic au-III. tonomy of the relevant region, including protection of the rights of all ethnic groups. A working arrangement should also contain provision on regional taxation and the collection of the budget of the autonomy organs;

External monitoring which might prove sustainability of the agree-IV. ment, especially at the outset where the implementation of the re-gime might be hampered by difficulties in the adoption of detailed rules for the implementation of the general autonomy provisions.

Any workable autonomy or federative regime needs to be substantial; in order to serve as a reliable conflict-settlement mechanism it needs


to be understood by both parties as giving meaningful expression for the self-rule of the relevant population. This requires the presence of at least all four factors.

First, the powers of the organs of the sub-entity and the central gov-ernment have to be laid out in a detailed manner. In the cases analyzed for this paper, competencies relating to the nation as a whole, such as national security, transport and international obligations, have gener-ally been left to the central government. The sub-entities have gained powers in matters concerning the local territory and questions related to the preservation of the minority or people in question. The powers of the relevant bodies must be very clearly delimited. Ideally, there would be an impartial body that would be assigned with the task of resolving delimitation conflicts.

Second, the financial provisions, including taxation and revenues for uses of natural resources need to be also very clearly laid out at the beginning. As little as possible should be left to be regulated by sub-sequent decrees or other types of secondary legislation. It is to be ex-pected that funds from the central government have to be transferred for the purposes of the development of the sub-entity. The modalities of such transfers need to be agreed in detail already in advance.

Third, there should be a safe-guard mechanism for preventing the stalling of the implementation of the autonomy or federative arrange-ment, once set up. A working regime needs the commitment of both parties. It is to be expected that some actors on both sides feel the re-gime as contrary to their interests and thus seek to block its effective implementation. Therefore it is necessary to guarantee that as little as possible is left for future negotiations/mediation. (Nothing is agreed until everything is agreed) All phases of the implementation need to be accompanied with sufficient funding calculated and allocated at the outset. Impartial, international supervision of the implementation should be provided whenever possible.

Fourthly, there should be detailed provision concerning transitional arrangements. These provisions should include time-tables for the modification or withdrawal of the CIS peacekeeping forces, alternative security arrangements for the territories, organization of the return of displaced persons, economic, logistical and other support for the au-tonomy authorities, a programme for dealing with war crimes and oth-er issues of transitional justice, security sector reform, disarmament, demobilisation and reintegration as well as an economic rehabilitation

plan established and implemented under supervision by international authorities. Finally, there should be a meaningful international super-vision of all the transition arrangements.


Footnotes

1 Svante E.Cornell, ‘Autonomy as a Source of Conflict’, World Politics 54 (January 2002) 245-276 at 262.

2 Charles King, ‘The Benefits of Ethnic War: Understanding Eurasia’s Unrecog-nized States’, 53 World Politics (July 2001) 542-552 at 544-544.

3 The structure of the population was in 2003 according to an Abkhaz census the following: Abkhazian (44 %), Armenian (21 %), Georgian (21 %), Russian (11 %) and others (3 %). International Crisis Group, Abkhazia: Ways Forward, Europe Report No. 179, 18 January 2007.

4 According to the 1989 census presented in e.g. Ivlian Haindrava, ‘The Conflict in Abkhazia and a Possible Way of Resolving It’, in Bruno Coppieters, David Darchiashvili & Natella Akaba (eds), Federal Practice: Exploring Alternatives for Georgia and Abkhazia (VUB University Press, Brussels, 2000) 204-214 at 211.

5 See e.g. Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separat-ism in the South Caucasus – Cases in Georgia (Uppsala, 2002) at 174, 187.

6 Report of UNDP-Led Feasibility Mission, at v, cited in International Crisis Group, Abkhazia Today, Europe Report No. 176, 15 September 2006, at 18.

7 Bruno Coppetiers, ’The Georgian-Abkhaz Conflict’, available at <www.ecmi.de/jemie/download/1-2004Chapter5.pdf> (visited 14 December 2006).

8 UNSC Resolution 896 (1994), 31 January 1994; Dov Lynch, ‘Why Georgia Mat-ters?’, Chaillot Paper no. 86 (February 2006), Institute for Security Studies, at 18.

9 UNSC Resolution 858 (1993), 24 August 1993.

10 S/1994/397, Annexes I and II.

11 UNSC Resolution 937 (1994), 21 July 1994.

12 E.g. UNSC Resolution 1716 (2006), 13 October 2006, para. 2.

13 This document, also called the Boden document, has remained secret. On state-ments upon it see, e.g., ‘Interview with Revaz Adamia, Ambassador of Georgia to the UN’, 9 July 2002, <www.civil.ge/eng/article.php?id=2235> (visited 12 March 2007).

14 UNSC Resolution 1716 (2006), 13 October 2006. Another recent actor involved in helping Georgia to inter alia settle with the breakaway regions is the “new Group of Friends of Georgia” composed of the three Baltic States, Poland, Ro-mania, Bulgaria and the Czech Republic. ‘Latvian representative at “Friends of Georgia” meeting indicates support for Georgia’s reform process’ 10 November 2006, <www.mfa.gov.lv/en/news/press-releases/2006/november/10-5/> (vis-ited 12 March 2007).

15 UNSG Report on the Situation in Abkhazia, Georgia, S/2003/412, 9 April 2003, para. 4.

16 UNSC Resolution 1716 (2006), 13 October 2006, para. 3: UNSG Report on the Situation in Abkhazia, Georgia, S/2006/771, 28 September 2006, paras 6-8.

17 Civil Georgia, ‘Tbilisi accuses Moscow, Sokhumi of Shelling Kodori’, 12 March 2007, <www.civil.ge/eng/article.php?id=14761> (visited 12 March 2007).

18 UNSG Report on the Situation in Abkhazia, Georgia, S/2006/771, 28 September 2006, para. 37.

19 Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separatism in the South Caucasus – Cases in Georgia (Uppsala, 2002), at 188.

20 Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separatism in the South Caucasus – Cases in Georgia (Uppsala, 2002), at 186-187.

21 Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separatism in the South Caucasus – Cases in Georgia (Uppsala, 2002), at 190.

22 Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separatism in the South Caucasus – Cases in Georgia (Uppsala, 2002), at 188; International Crisis Group, Georgia: Avoiding War in South-Ossetia, Europe Report No. 159, 26 November 2004, at 3.

23 International Crisis Group, Georgia: Avoiding War in South-Ossetia, Europe Re-port No. 159, 26 November 2004, at 2.

24 International Crisis Group, Georgia: Avoiding War in South-Ossetia, Europe Re-port No. 159, 26 November 2004, at 4.

25 Dov Lynch, ‘Why Georgia Matters?’, Chaillot Paper no. 86 (February 2006), In-stitute for Security Studies, at 42.

26 BBC, ‘Georgia Army Helicopter Fired On’, <news.bbc.co.uk/2/hi/europe/5310404.stm> (visited 7 March 2006).

27 Council of Europe, Parliamentary Assembly, 2005 Ordinary Session, 26 January 2005, Address by President Mikheil Saakashvili, President of Georgia, <assem-bly.coe.int/main.asp?Link=/documents/records/2005/e/0501261000e.htm> (visited 21 March 2007).

28 The Ministry of Foreign Affairs of Georgia, ‘Initiatives of the Georgian Govern-ment with respect to the Peaceful Resolution of the Conflict in South-Ossetia’, <www.mfa.gov.ge/index.php?lang_id=ENG&sec_id=85&info_id=1161> (vis-ited 21 March 2007).

29 The European Commission, External Relations, ‘The EU’s relations with Geor-gia’, <ec.europa.eu/comm/external_relations/georgia/intro/index.htm> (vis-ited 11 April 2007).

30 Speech by EU Commissioner on External Relations Ferrero-Waldner, 25 Octo-ber 2006 before the European Parliament, SPEECH/06/629, European Parlia-ment Plenary, Strasbourg, 25 October 2006.

31 The text of the Constitution of Georgia referred to in this study is that appearing, in English translation, in Wolfrum (ed.), Constitutions of the Countries of the World (Oceana Publications, Dobbs Ferry, New York, 2006).


32 Article 26, paragraph 3 provides as follows: “The formation and activity of po-litical parties which aim to overthrow or to change by force the constitutional structure of Georgia, to violate the independence or territorial integrity of the country, to propagate war or violence or to incite to national, local, religious or social hatred are prohibited.” See also article 69, paragraph 2, giving the Presi-dent competence to “guarantee[] the unity and integrity of the country;” and ar-ticle 71, paragraph 1, setting out the President’s oath of office, which states, inter alia, that the President will “defend the independence, unity and indivisibility of the country.” Article 73(1)(h) identifies “infringement of the territorial integrity of the country” as one of the conditions under which the President may declare a state of emergency. Defense of the “territorial integrity of the country” is one of the duties of the armed forces of Georgia: article 98(2).

33 E.g. Canada: Reference re Secession of Quebec, 1998 SCJ No 61, 115 ILR 537.

34 Declaration of Acceptance of the Obligations Contained in the United Nations Charter, signed at Tbilisi, 6 May 1992, by E. Shevardnadze, President of the State Council of the Republic of Georgia: 1684 UNTS 35.

35 Op 209 (1999), 27 January 1999, PA COE, para 10(ii)(b).

36 Ibid para 10(ii)(b)(g).

37 Ibid para 10(i). Opinion 1201 (1993) adopted the text for the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Free-doms, concerning persons belonging to national minorities.

38 Op 209 (1999), 27 January 1999, PA COE, para 10(iv)(f). For monitoring the un-dertakings which Georgia made in connection with its accession to the Council of Europe, see PA Doc 10779, 5 January 2006, “Implementation of Resolution 1415 (2005) on the honouring of obligations and commitments by Georgia.”

39 2151 UNTS 246, 1 February 1995, entered into force 1 February 1998. Georgia ratified the Convention on 22 December 2005, and it entered into force for Geor-gia on 4 January 2006.

40 E.g. that of the Czech Republic, Hungary, and South Africa. Section 39(1) of the South African constitution provides, “[w]hen interpreting the Bill of Rights, a court, tribunal or forum… (b) must consider international law; and (c) may con-sider foreign law;” and section 233 provides, “every court must prefer any rea-sonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.” See, e.g., Thomas Buergenthal, “Modern Constitutions and Human Rights Trea-ties,” (1997) 36 Columbia Journal of Transnational Law 211, 212.

41 For discussion of the incorporation of international law into certain national constitutions, see Tijanyana Maluwa, ‘The Incorporation of International Law and its Interpretational Role in Municipal Legal Systems in Africa: An Explana-tory Survey’, (1998) 23 South African Ybk IL 45, 46; Dermott J. Devine, ‘The Relationship Between International Law and Municipal Law in Light of the Con-stitution of the Republic of Namibia’, (1994) 26 Case Western Reserve JIL 295, 313-4; A.E. Dick Howard, ‘Toward Constitutional Democracy: An American Per-spective’, (2003) 19 Journal of Law and Politics 285, 287.

42 Article 27 in the Vienna Convention on the Law of treaties provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. Vienna Convention on the Law of Treaties, 23 May 1969, 115 UNTS 331.

43 GA res 2625 (XXV) of 24 October 1970 (“Declaration on Principles of Interna-tional Law Concerning Friendly Relations and Cooperation among States in Ac-cordance with the Charter of the United Nations”), Principle 5, paras 7-8: “Noth-ing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting them-selves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.” See also United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993 (1993) 32 ILM 1661, 1665.

44 The competences of the Constitutional Court include also: to consider on the basis of a constitutional complaint by citizens the constitutionality of norma-tive acts in the terms defined in Chapter Two of the Constitution; to exercise other powers determined by the Constitution and the organic law of Georgia; to consider the constitutionality of the creation and activities of political associa-tions of citizens; to consider disputes related to the constitutionality of referenda and elections; and to consider the constitutionality of international treaties and agreements.

45 Marcelo G. Kohen, ‘Introduction’, in Marcelo G. Kohen (ed.), Secession. Interna-tional Law Perspectives (Cambridge University Press, 2006) 1-20 at 1.

46 James Crawford, The Creation of States in International Law (2nd edn, Claren-don Press, Oxford, 2006) at 255.

47 The decolonization process witnessed many cases where the parent State granted independence to its former colony, e.g. Algeria in 1962 from France on the basis of the Evian Accords, Angola from Portugal in 1975 through the Alvor Agreement and Madagascar in 1960 after negotiations with France.

48 Marcelo G. Kohen, ‘Introduction’, in Marcelo G. Kohen (ed.), Secession. Interna-tional Law Perspectives (Cambridge University Press, 2006) 1-20 at 3-5.

49 Examples of unsuccessful cases include those of Katanga, Biafra and Somaliland in Africa, Republika Srpska and Kosovo in the SFRY, Chechnya from the Russia, Quebec form Canada and of course Abkhazia and South-Ossetia from Georgia. Still, there are cases in which secession has been approved of, e.g. Senegal from France in 1960, Singapore from Malaysia in 1965, Bangladesh from Pakistan in 1971, and Eritrea from Ethiopia in 1993.

50 James Crawford, ‘State Practice and International Law in Relation to Unilateral Secession’, in Anne Bayefsky (ed.), Self-Determination in International Law: Quebec and Lessons Learned (Kluwer Law International, The Hague, 2000) 31-61 at 53, 57.


51 Declaration on Yugoslavia (Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991) 31 International Legal Materials 1485; Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 16 December 1991.

52 GA Resolution 1514 (XV) 14.12.1960.

53 The common Article 1 of the two international human rights covenants of 1966, the International Covenant on Civil and Political Rights (ICCPR) and the Inter-national Covenant on Economic, Social and Cultural Rights (ICESCR), reads as follows: “1. All peoples have the right of self-determination. By virtue of that right they

freely determine their political status and freely pursue their economic, so-cial and cultural development. …..

3. The States Parties to the present Covenant, including those having respon-sibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

54 UNGA Res. 2625 (1970), 24 October 1970. And was affirmed by the International Court of Justice (ICJ) in the Western Sahara Case (1975)Western Sahara case, ICJ Reports 1975, at 31-33. It was also affirmed in the East Timor Case (1995).

55 GA Resolution 1541 (XV) 15.12.1960.

56 The situations of Namibia (1990) and East Timor (2002) exemplify cases where independence emerges as the only viable form of self-determination in response to continued oppression by the territorial State and no expectation that internal self-determination could be meaningfully realised.

57 These criteria, based on the 1933 Montevideo convention, have since then at-tained the status of customary law. They are not disputed in practice or in theory. See Oppenheim’s International Law (Vol I, Part 1, 9th ed. by R. Jennings & A. Watts, Longman’s 1992), p. 120-125.

58 In 1920, three years after the independence of Finland, the International Com-mittee of Jurists found it not to be a sovereign state in the legal sense because of the lack of a government in effective control of the territory. The Commission noted: “It is therefore difficult to say at what exact date the Finnish Republic, in the legal sense of term, actually became a definitely constituted sovereign State. This certainly did not take place until a stable political organization had been created, and until the public authorities had become strong enough to as-sert themselves throughout the territories of the State without the assistance of foreign troops. The Aaland Islands Question: report of the Committee of jurists, LNOJ, Spec. Supp. No. 3, 1920, at 8-9.

59 Islands of Palmas Case, Netherlands v. United States (1928), Permanent Court of Arbitration. Sole Arbitrator Huber. 2 R.I.A.A. 829.

60 Gerard Kreijen, State Failure, Sovereignty and Effectiveness (Leiden, 2003) at 224-225. For instance, the “State of Palestine” declared in 1988 by Palestinian

Liberation Organization (PLO) was not accepted as a State, due to the lack of ef-fective control over the claimed territories.

61 Oppenheim, International Law, vol. 1 (1st edn, 1905) at 110, §71.

62 For example, most States refused to accept the secession of Biafra from Nigeria in 1967-70, while the decolonization process witnessed recognitions of a new State although the colonial country was still in power of the territory (Algeria, Guinea-Bissau).

63 The 1970 Friendly Relations Declaration reiterates the formulations from the Charter, and reaffirms that international disputes shall be settled on the basis of the sovereign equality of States and in accordance with the principle of free choice of means.

64 The Final Act expressly stated that while frontiers could be changed, this could only be done by peaceful means and by agreement. No situation created by the use of force may be recognized as giving effect to valid legal rights.

65 James Crawford, The Creation of States in International Law (Clarendon Press, Oxford, 1979), at 247, 215.

66 In the Construction of a Wall case it stressed to the General Assembly the need to achieve “on the basis of international law, a negotiated solution to the outstand-ing problems and the establishment of a Palestinian State”.Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 162.

67 Declaration on Yugoslavia, Extraordinary Ministerial Meeting, Brussels, 16 De-cember 1991.

68 Letter dated 10 November 2005 from the President of the Security Council ad-dressed to the Secretary-General, S/2005/709, 10 November 2005.

69 See e.g. UNSC Resolution 1716 (2006), 13 October 2006, para. 2; UNSC Resolu-tion 858 (1993), 24 August 1993, para. 9.

70 Nevertheless, the Baltic States regained their independence outside the negotia-tion process, by successfully enlisting recognition to their claim that they had been under illegal occupation.


72 UNSC Resolution 1339 (2001), 31 January 2001.

73 There are numerous examples (e.g. South Rhodesia 1965-1979, the Northern Turkish Republic of Cyprus 1983-present, Iraq 1990, the break-up of the SFRY) in which the UN Security Council has specifically reaffirmed the obligation of States not to give legal effect to situations emerging from the illegal threat or use of force. See generally John Dugard, Recognition and the United Nations (Gro-tius Publications Ltd, Cambridge, 1987).

74 See East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; Legal Consequences Of The Construction of a Wall in the Occupied


Palestinian Territory (Advisory Opinion of 9 July 2004), I.C.J. Reports 2004, para 88.

75 Märta C. Johanson, Self-Determination and Borders. The Obligation to Show Consideration for the Interests of Others (Åbo Akademi University Press, 2004) 170.

76 However, aggressive use of force against the claimant entity in situations such as Bangladesh, East Timor and (arguably) Croatia and Bosnia-Herzegovina, did prepare ground for accepting full independence as the sole feasible alternative in those cases.

77 For discussion, see e.g. Martti Koskenniemi, ‘National Self-Determination To-day: Problems of Legal Theory and Practice, 43 International and Comparative Law Quarterly (1994), 260-264 and especially James Summers, Peoples and In-ternational Law. How Nationalism and Self-Determination Shape a Contempo-rary Law of Nations (The Hague, Brill 2007).

78 The Republic of Palau, for example, a member State of the UN from 1994, has 19,000 inhabitants.

79 For example, following the referendum, on 13 November 2006, the Secretary-General of the Council of Europe stated that it was “unnecessary, unhelpful, and unfair” and that its results would not be recognized by the international commu-nity ‘South Ossetia Votes For Independence’, Radio Free Europe/Radio Liberty, November 12, 2006 <en.wikipedia.org/wiki/South_Ossetian_independence_referendum%2C_2006> (visited 10 April 2007).

80 In 1932, for example, the League of Nations scrutinised a claim to independence by Manchukuo, established in the (Chinese) territory of Manchuria in connec-tion with a Sino-Japanese armed conflict in the area. The Commission set up by the Council of the League (the Lytton Commission) observed in its Report that Manchukuo was not actually independent because its creation, continued existence and internal (and foreign) policy were in fact determined by Japan. Consequently, no member of the League recognized Manchukuo owing to mani-fest lack of actual independence and its illegal creation. David Raič, Statehood and the Law of Self-Determination (Kluwer Law International, the Hague, 2002) at 78. Original source: Report of the Commission of Enquiry, League of Nations Publications, vol. 7, 1932, No. 12.

81 It was held that those entities, predominantly inhabited by ethnic Serbians, would have been completely dependent on the “Federal Republic of Yugoslavia”, that is to say, today’s Serbia-Montenegro.

82 In the Austro-German Customs Union case (1933), the Permanent Court of In-ternational Justice determined that entering a customs union with Germany, Austria would have become dependent on the latter in a fashion that would have violated the Treaty of Saint-Germain of 1922 in which it had promised not to alienate its independence. Austro-German Customs Union case, Advisory Opin-ion, PCIJ Series A/B No. 41 (1931).


84 Conference on Yugoslavia, Arbitration Commission, Opinion 2, 31 International Legal Materials (1992) 1497-1499 at paras 2, 4 (i).

85 For example, the African Commission on Human and Peoples’ Rights identified a number of alternatives on how to exercise self-determination when it firmly rejected the right of the Katangese people to secede from Zaire in 1992.

86 African Commission on Human and Peoples’ Rights, Communication 75/92, Ka-tangese Peoples’ Congress v. Zaire, para. 26.

87 Hans-Joachim Heinze, ‘On the Legal Understanding of Autonomy’, in Markku Suksi (ed.) Autonomy: Applications and Implications (Kluwer Law Internation-al, The Hague, 1998) 7-32 at 8.

88 Hurst Hannum, ‘The Foreign Affairs Powers of Autonomous Regions’, 57 Nordic Journal of International Law (1988) 273-288 at 273.

89 This was confirmed also by the Permanent Court of International Justice in the Lighthouses Case concerning the Greek islands Samos and Crete in 1937, when the Court noted that not even extensive autonomy curtails the sovereignty of the parent StateLighthouses in Crete and Samos , P.C.I.J., ser. A/b, No. 71 (1937).

90 Hans-Joachim Heintze, ‘On the Legal Understanding of Autonomy’, in Markku Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law Internation-al: The Hague, 1998) 7-32 at 24-25.

91 James Crawford, The Creation of States in International Law (2nd edn, Claren-don Press, Oxford, 2006) at 483-485.

92 Markku Suksi, ‘On the Entrenchment of Autonomy’, in Markku Suksi (ed.), Au-tonomy: Applications and Implications (Kluwer Law International: The Hague, 1998) 151-171 at 152.

93 Lauri Hannikainen, ‘Self-Determination and Autonomy in International Law’, in Markku Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law International: The Hague, 1998) 79-95 at 90-91.

94 Hurst Hannum & Richard B. Lillich, ‘The Concept of Autonomy in International Law’, 74 American Journal of International Law (1980) 858-889 at 865.

95 Hurst Hannum & Richard B. Lillich, ‘The Concept of Autonomy in International Law’, 74 American Journal of International Law (1980) 858-889 at 872.

96 Hurst Hannum, ‘The Foreign Affairs Powers of Autonomous Regions’, 57 Nordic Journal of International Law (1988) 273-288 at 273.

97 Hans-Joachim Heintze, ‘On the Legal Understanding of Autonomy’, in Markku Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law Internation-al: The Hague, 1998) 7-32 at 24-25.

98 See e.g. The Temple of Preah Vihear Case, ICJ Reports (1962) at 34-35.

99 E.g. UNSC Resolution 1716 (2006), 13 October 2006, para. 1.

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100 As pointed out by the Arbitration Commission on the Former Yugoslavia in re-gard to the realization of the right of self-determination of Serbian communities within Croatia,

101 See More, W. (2003) The Mediation Process. Practical Ways for Resolving Con-flicts. San Francisco: Jossey Bass, pp 7-8 and Menkel-Meadow, C. (2003) Lawyer Negotiations: Theory and Realities in: Menkel Meadow, C. Dispute Processing and Conflict Resolution. Collected Essays in Law. Aldershot: Dartmouth Pub-lishing Company. Pp 273-289

102 See Thomas M. Franck., ‘The Secretary-General’s Role in Conflict Resolution: Past, Present and Pure Conjecture’, 6 EJIL (1995) 3-29.

103 United Nations Observer Mission in Georgia, ‘Background’, <www.un.org/Depts/dpko/missions/unomig/background.html> (visited 11 April 2007).

104 See CSCE Procedure for Peaceful Settlement of Disputes, 30 International Legal Materials (1991) 390.

105 In addition, the 1992 “Valletta Mechanism”, again creates a more formal concili-ation process that would normally end in a non-binding recommendation unless the parties would from the outset agree to hold the end-result as binding. Ideally, these mechanisms are to be used in inter-state disputes. However, it would seem possible also – if so agreed between the parties – to use them in a situation where one party is not a State.

106 One unorthodox example relates to the use of the Secretary-General as an arbi-trator in the settlement of the Rainbow Warrior affair between France and New Zealand in 1986. See the Ruling by the Secretary-General, 26 International Legal Materials (1987) 1346.

107 J.G. Merrills, International Dispute Settlement (3rd edition, Cambridge Univer-sity Press, 1998) 32.

108 on the Former Yugoslavia that created an “Arbitration Commission” to give its (formally non-binding, but nevertheless authoritative) opinions on the legal questions that arose in the context of the settlement of the conflict. The opinions treated issues such as rights of the various populations, including conditions for the recognition of new States in the region.For the Opinions, see 31 International Legal Materials (1992) 1494-1526.

109 E.g. UNSC Resolution 1716 (2006), 13 October 2006.

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