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Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes

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Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes Occupied Elsewhere Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes Svante Cornell & Brenda Shaffer January 2020 FOUNDATION FOR DEFENSE OF DEMOCRACIES FOUNDATION Occupied Elsewhere Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes Svante Cornell Brenda Shaffer January 2020 FDD PRESS A division of the FOUNDATION FOR DEFENSE OF DEMOCRACIES Washington, DC Occupied Elsewhere: Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes Table of Contents INTRODUCTION ................................................................................................................................ 6 HISTORICAL BACKGROUND ........................................................................................................... 7 INTERNATIONAL LEGAL SITUATION ........................................................................................... 18 SETTLEMENT PROJECTS AND DEMOGRAPHIC CHANGES .................................................... 25 U.S., EU, UN, AND CORPORATE TRADE REGULATIONS .......................................................... 32 POLICY RECOMMENDATIONS ....................................................................................................... 46 Page 5 Occupied Elsewhere: Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes Introduction the United Nations prevents recognition of such claims but remains largely incapable of influencing the status Setting policies toward territories involved in protracted quo, leaving territories in an enduring twilight zone. conflicts poses an ongoing challenge for governments, Such territories include, but are not limited to: Crimea, companies, and non-governmental organizations Donbas, Northern Cyprus, the West Bank, Kashmir, The (NGOs). Since there are multiple zones of disputed Armenia-Azerbaijan Conflict, South Ossetia, Abkhazia, territories and occupation around the globe, setting Transnistria, and Western Sahara.3 policy toward one conflict raises the question of whether similar policies will be enacted toward others. The problem is not simply that the United Nations, Where different policies are implemented, the question United States, European Union, private corporations, arises: On what principle or toward what goal are the and NGOs act in a highly inconsistent manner. It is that differences based? their policies are selective and often reveal biases that underscore deeper problems in the international system. Recently, for example, the European Court of Justice For example, Russia occupies territories the United States (ECJ) decided goods entering the European Union that and European Union recognize as parts of Ukraine, are produced in Jewish settlements in the West Bank Georgia, and Moldova, yet Crimea is the only Russian- must be clearly designated as such.1 At the same time, occupied territory subject to Western sanctions. By however, neither the ECJ nor the European Union have contrast, products from Russian-controlled Transnistria enacted similar policies on goods from other zones of enter the United States as products of Moldova, and occupation, such as Nagorno-Karabakh or Abkhazia. the European Union allows Transnistria to enjoy the The U.S. administration swiftly criticized the ECJ benefits of a trade agreement with Moldova. The United decision as discriminatory since it only applies to Israel.2 States and European Union demand specific labeling of Yet, at the same time, U.S. customs policy on goods goods produced in Jewish settlements in the West Bank imports from other territories is also inconsistent: U.S. and prohibit them from being labeled Israeli products. Customs and Border Protection has explicit guidelines Yet products from Nagorno-Karabakh – which the that goods imported from the West Bank must be United States and European Union recognize as part labelled as such, while goods that enter the United of Azerbaijan – freely enter Western markets labeled as States from other occupied zones, such as Nagorno- products of Armenia. Karabakh, encounter no customs interference. The problem is not simply that the United Territorial conflicts have existed throughout history. But “Nations, United States, European Union, the establishment of the United Nations, whose core private corporations, and NGOs act in a principles include the inviolability of borders and the inadmissibility of the use of force to change them, led highly inconsistent manner. It is that their to the proliferation of protracted conflicts. Previously, policies are selective and often reveal biases sustained control over territory led to eventual acceptance that underscore deeper problems in the of the prevailing power’s claims to sovereignty. Today, international system.” 1. Judgment of November 12, 2019, Organisation juive européenne and Vignoble Psagot Ltd v. Ministre de l’Économie et des Finances, C-363/18, EU:C:2019:954. (http://curia.europa.eu/juris/document/document. jsf?text=&docid=220534&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1466694) 2. U.S. Department of State, Press Statement, “Decision by EU Court of Justice on Psagot Case,” November 13, 2019. (https://www.state. gov/decision-by-eu-court-of-justice-on-psagot-case/) 3.. This study does not address cases where no foreign government disputes an annexation, such as China’s incorporation of Tibet or Indonesia’s absorption of Western New Guinea. Page 6 Occupied Elsewhere: Selective Policies on Occupations, Protracted Conflicts, and Territorial Disputes Today, several occupying powers try to mask their Historical Background control by setting up proxy regimes, such as the Turkish Republic of Northern Cyprus (TRNC) or similar The following is a survey of the history of several entities in Transnistria and Nagorno-Karabakh. While protracted conflicts: Crimea and Donbas, Cyprus, these proxies do not secure international recognition, Israel and the Palestinian territories, Kashmir, the the fiction of their autonomy benefits the occupier. By Armenia-Azerbaijan conflict, South Ossetia and contrast, countries that acknowledge their direct role Abkhazia, Transnistria, and Western Sahara. in a territorial dispute tend to face greater external pressure than those that exercise control by proxy. Crimea and Donbas Some territorial disputes have prompted the forced In 1954, the Soviet Union transferred the Crimean expulsion or wartime flight of the pre-conflict population. province from the Russian Soviet Socialist Republic to A related issue is the extent to which the occupier has its Ukrainian counterpart. That mattered little during allowed or encouraged its own citizens to become the Soviet period, but it meant that upon the collapse settlers. While one might expect the international of the Soviet Union, Russia controlled only a very system to hold less favorable policies toward occupiers narrow shoreline on the Black Sea – between Abkhazia that drive out residents and build settlements, this is not and Crimea, with its main Black Sea naval base, in the case. Armenia expelled the Azerbaijani population of Sevastopol, in another country’s territory. In January Nagorno-Karabakh, yet the United States and European 1992, Russian leaders challenged the legitimacy of this Union have been very lenient toward Armenia. They arrangement, pointing to procedural irregularities as have also been lenient toward Morocco, which built well as the province’s ethnic Russian majority. The issue a 1,700-mile long barrier to protect settled areas of cooled after a 1997 treaty that secured Russia’s control Western Sahara and imported hundreds of thousands of the Sevastopol base. But following the Orange of settlers there. Against this backdrop, the constant Revolution of 2004, which brought the pro-Western pressure to limit Israeli settlement in the West Bank is Viktor Yushchenko to power in Ukraine, the Crimea the exception, not the rule. issue heated up again, exacerbated by Russian fears of a possible NATO expansion eastward to include Georgia This pressure is even more difficult to grasp given that and Ukraine. The tenure of pro-Russian Viktor Israel’s settlement projects in the West Bank consist of Yanukovich from 2009 to 2014 enabled Russia to newly built houses. In most other conflict zones, such renegotiate a long-term agreement that secured basing as Northern Cyprus and Nagorno-Karabakh, settlers rights for its Black Sea fleet until 2042.4 gained access to the homes of former residents. The “Euromaidan” revolution of 2013-2014 brought This study aims to provide decision makers in matters to a head again. The unrest demonstrated to government as well as in the private sector with the Moscow that its strategic influence over Ukraine was means to recognize double standards. Such standards imperiled. This prompted Moscow to move to annex not only create confusion and reveal biases, but also Crimea outright in early 2014. Russia then sought to constitute a business and legal risk. New guidelines establish a Donetsk People’s Republic and a Luhansk for making consistent policy choices are therefore People’s Republic in eastern Ukraine on the model of sorely needed. the secessionist republics in the Caucasus and Moldova. 4. On the Crimea conflict, see: Gwendolyn Sasse, The Crimea Question: Identity, Transition, and Conflict (Cambridge, Massachusetts: Harvard University Press, 2007); Michael Emerson, “President Yanukovich’s Dubious Deal,” Center for European Policy Studies, May 5, 2010. (https://www.ceps.eu/wp-content/uploads/2010/05/ME%20on%20Yanukovich.pdf);
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