Conflict resolution in A synthesis analysis with a legal perspective

Antje Herrberg Crisis Management Initiative A synthesis analysis with a legal perspective 3

Conflict resolution in Georgia A 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 4 Conflict resolution in Georgia A synthesis analysis with a legal perspective 5

analysis regarding the demands for independence made by In spite of the lack of any international recognition as to their inde- and from Georgia. pendence, both Abkhazia and South-Ossetia have continued to dis- tance themselves from their central government. The areas have de- The paper starts out with a condensed overview of the background in veloped their own political institutions; presidents, parliaments, and particular the armed conflicts in the 1990’s in Abkhazia and South-Os- local political parties. While they also possess other insignia of formal setia. This is followed by an assessment of the limits and possibilities statehood, such as security and armed forces, the economic conditions provided by the current Georgian constitution for the settlement of the of the areas remain weak and illegal trade or criminality flourishes.2 conflicts. The main part of this paper examines the international law of While the two breakaway-regions share their desire to secede from statehood and self-determination as applied in the conflicts. Georgia, the territories differ in many respects. The respective roots of The main conclusion of this paper is that neither Abkhazia nor South- the conflicts are different, the population and territories possess differ- Ossetia has a valid claim to statehood under international law on the ent characteristics, and they enjoyed different status within the Soviet basis of unilateral action. Nevertheless, to the extent that the Abkhaz Union. The pace and developments in their secessionist struggles have and South-Ossetians may be held as distinct “peoples”, they enjoy the also varied. right of self-determination. Solution of the conflicts is legally possible only by a negotiated solution. An examination of international legal a) Abkhazia practice in analogous cases shows that self-determination may either Abkhazia, formally the Georgian Autonomous Republic of Abkhazia, is be realized through appropriate federative or autonomous arrange- situated in the north-west of Georgia, bordering the shores of the Black ments for self-government within Georgia or by other arrangements Sea to the west, in the north, and the Georgian provinces Svan- for minority protection. The conclusion of this study is that since these etia and Mingrelia in the south. The region comprised of 8,700 sq km, conflicts seem to be intractable possibly due to a lack of full assessment one eight of the territory of the Republic of Georgia and comparable in of the legal framework, that the reframing of key questions and mu- size to that of Cyprus, is today the homeland for some 200,000 inhab- tual discussion of them within the possibilities presented here could be itants composed of different ethnicity, the majority of whom are Ab- conducive in terms of finding a settlement to the conflicts. Given the khaz.3 The demographic structure of Abkhazia was, however, notably deep entrenched position of the parties, it would be advisable to draw a different at the time of the dissolution of the Soviet Union and the out- credible and neutral third party to facilitate these talks. 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- 1. The historical context ans (15%), Russians (14%), and others (8%).4 The 1992 hostilities gave rise to a wide displacement of populations – which especially targeted Since its independence in the aftermath of the dissolution of the So- the ethnic Georgians – and it still constitutes one of the unresolved viet Union, Georgia faced notable ethno-territorial conflicts within questions that a final settlement will have to address. its borders. Three areas that have enjoyed autonomous status since the 1920’s1 – Ajaria, Abkhazia and South-Ossetia – have striven to Despite the worsened inter-ethnic relations in Abkhazia during the strengthen their position vis-à-vis the Georgian central government, 1992-93 war and its aftermath, Georgians at large adhere to the view ultimately challenging the national unity of Georgia. Whereas a peace- that the Abkhazians are an autonomous people with Abkhazia being ful solution has been found for the Ajaria region, the conflicts in Abk- their native land.5 The Abkhaz population differs ethnically from the hazia and South-Ossetia still await resolution. Both regions have pro- Georgians and their separate identity is recognized and accepted. Al- claimed independence from Georgia in the 1990’s. With the support though the Abkhaz language is a Caucasian language like the Georgian, of the international community Georgia has rejected their secessionist the two languages are not mutually understandable. Religion-wise the claims and insisted on its territorial integrity. Abkhaz also differentiate themselves from Georgians; the Orthodox 6 Conflict resolution in Georgia A synthesis analysis with a legal perspective 7

Church forms an important part of the Georgians’ life, whereas the Ab- to negotiate with Georgia on the formation of a federal constitutional khazians are religiously divided into Christianity and Islam. structure that would preserve Georgia’s territorial integrity. This ethnically and culturally distinct population lives in the moun- The declaration of independence of Georgia on 9 April 1991, the op- tainous, but yet subtropical region of Georgia. It has relied on tourism position against president Gamsakhurdia and the military coup that and agriculture for survival. The effect of the 1992-93 war and years of removed him from power created a general atmosphere of turmoil economic embargo and isolation has, nonetheless, disassembled the during which the Georgian constitution from 1921 was reinstated. This Abkhaz economy to a dependency on Russia. Still, some perceive Abk- constitution did not stake out any separate status of Abkhazia. hazia as capable of surviving on its own economically as the region at Whereas Georgia’s independence was manifested through internation- least has been self-sufficient in food and electricity. According to the al recognition and membership in international organizations, Abkhaz- UNDP much of the population of Abkhazia is, however, impoverished ia continued the struggle to enhance its status. The Abkhaz Supreme and relies on humanitarian aid. Furthermore, the UNDP has concluded Soviet reinstated the Abkhaz constitution of 1925, according to which that infrastructure in Abkhazia “is in a stage of progressive collapse”.6 the “Republic of Abkhazia” was to have a federative relationship with The international community has been unwilling to support the claims Georgia based on equality between the two republics. This declaration for independence by Abkhazian representatives; the UN, OSCE, EU as of independence on 23 July 1992 did not further the protection of Abk- well as other international institutions have all sustained the territorial hazia’s hitherto autonomous political status. Instead it turned the long integrity of Georgia. tension into an armed conflict between Georgia and Abkhazia. Abkhazia under Soviet Rule The 1992 Conflict and Its Aftermath The involves certain periods when the Abkhaz have It was on 14 August 1992, when Abkhazia’s proposals for a federa- assumed ownership of governance and administration, yet it has for tive/confederative arrangement with Georgia were met by Georgia’s the most part constituted an autonomous part of Georgia or Russia/the Shevardnadze dispatching troops to bring Abkhazia into order. Not- Soviet Union. The Abkhaz history in the twentieth century follows at withstanding initial military success on the Georgian side, the Abkhaz large the creation, existence and dissolution of the USSR and challeng- fighters along with support from North Caucasian volunteers and Rus- es posed by its federal structure, both between and within the Union sian military supplies managed to force the Georgians to retreat in Sep- republics. Therefore the relations between Abkhazia, Georgia and the tember 1993. The toll of the armed conflict was hundreds of lives and Soviet Union were marked by subordination of the former to the lat- wounded and devastated vast areas, with almost 300,000 internally ter7. The subordinate position that Abkhazia and Georgia maintained displaced persons8 – most of whom were ethnic Georgians. In line with under the Soviet structure was understood as threat to their respective the wishes of both parties the conflict had received international at- national identities. tention and involvement by the United Nations. Earlier attempts to achieve ceasefire had generated the United Nations Observer Mission It was during Soviet rule Abkhazia’s status changed from that of a full in Georgia (UNOMIG), which was established on 24 August 1993 by republic status to one of autonomous republic within the Socialist So- the UN Security Council resolution 858 (1993).9 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 The UN led negotiations resulted in the signing of the Declaration on status vacillated between reinstatement of statehood and the Georgian Measures for a Political Settlement of the Georgian-Abkhaz Conflict on quest to integrate the autonomous republic firmly into its state. Since 4 April 1994, which laid down a ceasefire, and a Quadripartite Agree- the 1990’s the tensions resulted in unilateral declaration of independ- ment on Voluntary Return of Refugees and Displaced Persons.10 The ence by Abkhazia on July 23 1992 and resulted in a full blown conflict. declaration stated that “any agreement on this issue [distribution of powers between Abkhazia and Georgia] is part of a comprehensive set- On 25 August 1990, the Abkhazian Supreme Soviet declared state sov- tlement and will be reached only once a final solution to the conflict ereignty of the Abkhazian SSR although it also expressed preparedness 8 Conflict resolution in Georgia A synthesis analysis with a legal perspective 9

has been found”. The ceasefire was formalized by the parties through that would solve the conflict. On a few occasions, the security situation the Agreement on Ceasefire and Separation of Forces (the so-called has deteriorated almost to the level of direct clashes and consequently Moscow Agreement) on 14 May 1994. A peacekeeping mission by the the mandates of the CIS peacekeeping forces as well as UNOMIG have Commonwealth of Independent States (CIS) forces has been deployed constantly been extended. Notwithstanding the reported new dynam- to keep the peace, while UNOMIG’s role has been limited to monitor- ics in the peace process in 2003 when the Abkhaz de facto authorities ing the CIS forces.11 received the Group of Friends in at the ambassadorial level,15 no agreement has been concluded that would comprehensively settle The 1994 cease-fire instruments set forth future negotiations between the conflict. the parties without taking a definitive stance upon the basic principles that a political settlement would have to include. Thus, even though it The failure of existing mechanisms to achieve a settlement has led to stopped the active hostilities, it left the political settlement afloat – or Georgian demands for an increased role of the European Union as well in a term more commonly used: “frozen”. Although the conflict has as replacing the CIS peacekeepers with peacekeepers of other nation- stayed frozen with regard to finding a political settlement, occasional alities. Moreover, Georgia has resorted to measures over which the UN fighting between the parties has occurred. The escalation of the con- Security Council has expressed its concern: In July 2006 the Georgian flict in 2001 prompted increased mediation and negotiation efforts by government launched a military operation in the upper Kodori Valley the international community. The most important UN contribution (a security zone monitored by UNOMIG and CIS peacekeepers accord- so far has been proposed in 2001 by the Secretary-General’s Group of ing to the 1994 Moscow Agreement) to “restore law and order in the Friends of Georgia (France, Germany, Russia, the United Kingdom, area” after which the -based government of the Autonomous Re- and the United States) entitled “the Basic Principles for the Distribu- public of Abkhazia was relocated there.16 tion of Competencies between Tbilisi and Sukhumi”. This proposal Today, the strategically important Kodori Valley is the only part of Ab- has repeatedly been endorsed by the UN Security Council.12 The Basic khazia that is under Georgian control. Since the gorge separates the Principles lays down the general framework for a political settlement separatists from Georgia it remains the conflict’s hot spot with reoc- according to which “Georgia is a unified State and Abkhazia is a part curring clashes, provocation and hardening rhetoric. In March 2007 of it, an administrative-territorial entity with serious sovereign rights clashes ensued once again. These were accompanied by accusations of within Georgia”.13 Although the proposal has not been endorsed by Ab- the Georgian government on both Sukhumi and Russia for shelling vil- khazia, it remains the most important basis for any settlement of the lages.17 Both parties have denied any direct involvement and labeled conflict. these as acts of local violence. However, the incidents demonstrate that Tension despite External Involvement all parties are easily provoked and that tension remains high. Many international actors have been involved during the past fourteen The UN’s Secretary-General has underlined the negative effect of con- years in either monitoring or negotiating/mediating the resolution of tinuing tension between the parties in his report in September 2006: the conflict. Despite the persistent efforts of the United Nations, it’s “A negotiated solution for the Georgian-Abkhaz conflict is undoubtedly Secretary-General and of his Special Representative with Russia as fa- difficult to reach today, as the positions of the two sides have grown cilitator, the Group of Friends of Georgia and the OSCE, there still is further apart over the years on the question of the political status”.18 no agreement on the key issues to the conflict.14 The so-called Geneva Peace Process – in addition to the Coordination Commission that was b) South-Ossetia established simultaneously with the 1994 Moscow Agreement, and con- The Autonomous Region of South-Ossetia is located in northern Geor- ferences between the parties on confidence-building measures in Ath- gia bordering Russia. It is separated from the Russian Autonomous ens 1998, Istanbul 1999 and in Yalta 2001 – has made only little sub- Republic of North-Ossetia by the Caucasian mountains and it extends stantial progress concerning the future status of Abkhazia or the return in the south nearly to the Mtkvari River in Georgia. Thus, South-Osse- of IDPs and the parties still hold opposite positions on an arrangement tia lies geographically close to Georgia’s capital Tbilisi, in fact, South- 10 Conflict resolution in Georgia A synthesis analysis with a legal perspective 11

Ossetia’s capital Tskhinvali lies within two hours drive by car from it.19 clared to be an Autonomous Oblast (region) of the Georgian Soviet So- The 3,900 sq km area populates 70,000-80,000 inhabitants most of cialist Republic. whom are ethnic Ossetians, but a Georgian minority composing less During the Soviet period, South-Ossetians were granted a degree of than one third of the population also resides in the area. autonomy with regard to language and education, yet, their position According to the Ossetian historiography their people descend from was inferior to that of Abkhazia or the autonomy enjoyed by their the Iranian people, the Alans. Indeed, the Ossetian language is Iranian Northern kin under Russia. The South-Ossetian demands in 1988 to and related to Farsi. Whereas the language differentiates the Ossetians upgrade the territory’s status from an autonomous region to an au- from the Georgians, they still share the same religion – Orthodox Chris- tonomous republic were, nevertheless, dismissed by Georgia. Public tianity. Yet, Ossetians do not fall within the predominant Georgian discussions between Georgians and Ossetians over the future of Geor- national conception. The Georgians take the position towards Osse- gia and its ethnic groups were held in South-Ossetian villages, but any tians that the territory of South-Ossetia does not constitute the latter’s peaceful attempts to resolve the tension failed on 23 November 1989, homeland and that the Ossetians are a non-native Georgian people. In when 15,000 Georgians marched into Tskhinvali, the capital of South- line with this, Georgia has been reluctant to grant territorial autonomy Ossetia. The ensuing clashes between Georgians and South-Ossetians to South-Ossetia. The Ossetians themselves maintain a distinct Osse- soon demanded their first victims. tian identity separate from Georgian. At least during Soviet times Os- setian identity has, however, been described as relatively weak.20 1990-1992 Conflict and Its Aftermath South-Ossetia’s location with regard to economic viability is unfavora- In 1990 the situation between Georgia and its autonomous region ble. The vast part of the area is mountainous, and except for some ag- South-Ossetia further deteriorated. Following Georgian legislation that riculture and mining it has had little economic activities. Not even the banned regional parties, the South-Ossetian Popular Front proclaimed finishing of a railway-tunnel between North and South-Ossetia in 1988 full independence on 20 September 1990 within the Soviet Union and has managed to correct the area’s economic backwardness. Instead, consequently arranged its own parliamentary elections. Georgia react- smuggling of goods through the tunnel has constituted one means for ed by annulling the election result, abolishing South-Ossetia’s status as livelihood of Ossetians,21 with widespread criminality as a consequence. an autonomous region, and declaring state of emergency. The Soviet Indeed, acknowledging the limited economic viability of their territory, Union declared the acts of both parties unconstitutional and ordered South-Ossetians have striven to independence from Georgia in order them to cease all military actions. Georgia’s refusal to abide by the So- to be unified with their wealthier ethnic kins in North-Ossetia. viet demands generated chaos and warfare as of January 1991. After a year of direct armed conflict, South-Ossetia’s authorities arranged a South-Ossetia during Soviet Rule referendum, which overwhelmingly supported secession from Georgia and integration with Russia. The new leaders of Russia and Georgia, As part of Georgia, South-Ossetia had formed a part of Russia since however, reached a ceasefire agreement in Sochi on 24 June 1992, ig- 1801. The roots to the present conflict, however, date back to the fall of noring the South-Ossetian claims for sovereignty. Instead of gaining the Russian Empire in 1917 and the subsequent struggle between Men- independence through armed confrontation, South-Ossetia now faced sheviks and Bolsheviks on the one hand, and on the other hand the ex- a different reality: 1,000 dead, missing persons, destruction of homes isting ethnic tension. South-Ossetian separatism existed already during and infrastructure, refugees and internally displaced persons. the First Georgian republic (1918-1921). Uprisings occurred 1918-1920 and even a declaration of independence of South-Ossetia was adopted The Sochi Agreement created a Joint Control Commission (JCC) with in 1920 the purpose of which was to establish a Soviet republic.22 The inter alia the task to supervise the observance of the agreement, draft Georgian quelling of the uprisings killed thousands of people, and left and implement conflict settlement measures, promote dialogue and the South-Ossetians suffering from hunger and epidemics.23 In 1921, political settlement, facilitate refugee and IDP return, monitor human the Soviet army invaded Georgia and with that South-Ossetia was de- rights, and coordinate the activities of the Joint Peacekeeping Forces. The JCC has since created working groups on: 1) military and security 12 Conflict resolution in Georgia A synthesis analysis with a legal perspective 13

matters, 2) economic rehabilitation, and 3) establishing conditions for South-Ossetia would have received control over issues such as culture, refugee and IDP return.24 The JCC is composed of representatives from education, social policy, economic policy, public order and environ- Georgia, Russia, North and South-Ossetia and the OSCE, whereas the mental protection. South-Ossetians would also have been granted quo- Joint Peacekeeping Forces (JPKF) is drawn from Georgian, Russian tas in the national parliament, judiciary and the central government. and Ossetian units. According to the Peace Initiative, the central government would have retained powers over border control, defence and human rights. The The framework laid down in the 1992 Sochi Agreement has not con- peace plan called for a three-year transition period controlled by an tributed to a final solution of the Georgian-South-Ossetian conflict. international monitoring mission and for compensation to victims of The pace of negotiations has been slow, marked by periods of inactiv- war atrocities.28 The initiative was, however, instantly rejected by the ity. It was not until 1999 that the parties met to discuss the political set- South-Ossetian separatist leaders. 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 The stalemate in the negotiations and Georgian perception is that back under effective Georgian control. His policy, which was based on it has a disadvantageous position within the Joint Control Commis- the idea that South-Ossetia’s separatism survived on the basis of smug- sion which has fostered Georgian demands for a change in the com- gling and that eliminating this would turn the South-Ossetian popula- position of the Joint Control Commission. Furthermore, Georgia has tion against its separatist leaders, failed.25 Instead, the Georgian ap- expressed wishes to remove the CIS peacekeepers and to render the proach was counter-productive: the separatist leaders were reinforced European Union an increased role in the resolution of the conflict. Al- in their belief that Georgia constituted a threat to South-Ossetia’s sur- though Georgia and South-Ossetia disagree as to the desired outcome vival and that the only end-goal could be independence. The outbreak of any negotiations, there still appears to be room for some dialogue of renewed fighting in August 2004 forced Georgia to step back. and international involvement. The international donor conference for South-Ossetia in June 2006 showed considerable involvement of the Recent Developments in Negotiations European Union which has granted financial assistance to the area.29 and International Involvement However, the European Union has insisted on the importance of Rus- 30 Separatism and efforts to counter it in South-Ossetia continue to sia’s role in finding a durable solution. thrive. The rhetoric has even intensified after the shooting of a Geor- This review shows that the two conflicts are quite different in terms gian helicopter in September 2006 and the organizing of a referendum of their ethnic territorial and in terms of their historical relations with on South-Ossetia’s future status in November 2006.26 The result of the Georgia, that efforts to find a mutually acceptance for the status of Abk- referendum was overwhelming support for independence. However, hazia and South Ossetia have not been successful. The question there- the referendum has not been internationally recognized. Whether the fore is how to locate possibilities of principally identity driven politics ultimate objective truly is independence or uniting with North-Ossetia of these entities within the framework of possible solutions within the as a part of Russia is unclear. The South-Ossetian separatist leaders context of the international law. 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- 2. THE CONFLICTS AND THE cil of Europe, and the OSCE in 2005 in which the Georgian President GEORGIAN CONSTITUTION Saakashvili was prepared to offer South-Ossetia a wide autonomy. The plan included granting South-Ossetia an autonomous status with con- In order to situate the Abkhaz and the South Ossetian conflict within stitutional guarantees with the right to freely and directly elect local- the existing legal framework of Georgia it is useful to reflect on the self-government, including an executive branch and a parliament.27 Constitution of 1995 and its subsequent amendments. 14 Conflict resolution in Georgia A synthesis analysis with a legal perspective 15

a) The 1995 Constitution of Georgia 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 31 The Constitution of Georgia was adopted on 24 August 1995. Sub- the break-up of the Soviet Union prompted the adoption of stabilizing stantial amendments to the Constitution were adopted subsequently, provisions to guarantee internal public order. Clear is, that the draft- in particular under the Constitutional Law of 6 February 2004. The ers of the Constitution expressed emphatically the indivisibility of the chief effect of the amendments has been to establish a mixed presiden- Georgian State within particular, specified frontiers. tial-parliamentary system of government based on the French model, therefore with no direct effect on the constitutional status of Abkhazia c) International Commitments of Georgia or South-Ossetia. Respecting the Autonomy Questions The Constitution of 1995 and its amendments contain provisions on the Whilst an enumeration, or analysis of the international commitments status of the regional entities and the rights of their inhabitants. Geor- of Georgia are beyond the scope of this paper, a number of observa- gia has made commitments relative to its treatment of the autonomous tions regarding the commitments undertaken by Georgia at the time regions and human rights generally. Such commitments form part of of its accession to membership in certain international organizations the international treaty practice of Georgia. They merit summary in can be made. the context of the constitutional law of Georgia for two reasons. First, the constitutional law of Georgia displays such a pronounced interna- Georgia was admitted as a Member State of the United Nations, by tionalization that these commitments may well be directly actionable vote of the General Assembly (GA res 46/241 of 31 July 1992). The in Georgian courts. Second, the commitments merit examination for admission of a State implies acceptance of the terms of Article 4(1) of consistency with related provisions of the Constitution. These provi- the Charter, namely, that the State be “peace-loving” and accept the sions of the Constitution relevant to the status of the territories and to “obligations contained in the […] Charter.” Georgia declared, by a pro the rights of their inhabitants should be addressed. forma statement transmitted on 6 May 1992 that it “accepts the obli- gations contained in the Charter of the United Nations and solemnly b) Territorial Integrity undertakes to carry them out.”34 The Constitution of Georgia emphasises the country’s “territorial in- More extensive commitments were undertaken in connection with the tegrity” and substantial attention is given to details of the State’s ter- admission of Georgia to the Council of Europe. The Parliamentary As- ritorial parameters. Article 1, paragraph 1 states as follows: sembly of the Council of Europe, by Opinion 209 of 27 January 1999, “Georgia is an independent, unified and indivisible State, as con- called on Georgia, as a condition following accession to: firmed by the Referendum of March 31, 1991, held throughout “Enact, within two years after its accession, a legal frame- the territory of the country, including the Autonomous Soviet work determining the status of the autonomous territories and Socialist Republic of Abkhazia and the Former Autonomous Re- guaranteeing their broad autonomy, the exact terms of which gion of South Ossetia, and by the Act of Restoration of the State are to be negotiated with the representatives of the territories Independence of Georgia of April 9, 1991.” concerned.”35 This central proposition of international law means that a State has the The same Opinion also called on Georgia to adopt legislative meas- right to take measures that are necessary, consistent with international ures within two years of accession, and administrative measures within law, to preserve its territorial integrity. The right is valid against both three years of accession, providing for restitution of ownership and ten- internal and external challenges. It is not that remarkable in itself that ancy rights, or payment of compensation for property lost by persons the Constitution of Georgia iterates this right—for example, in article displaced during the conflicts of 1990-94.36 It further called on Georgia 26(3) – as against internal challenges.32 Such a statement establishes a to adopt a minority law based on the principles set out in Assembly direct relation between (Georgian) domestic law and international law. Recommendation 1201 of 1 February 1993.37 The Council of Europe 16 Conflict resolution in Georgia A synthesis analysis with a legal perspective 17

also called on Georgia to prosecute perpetrators of war crimes in the Human Rights conflicts in Abkhazia and South-Ossetia.38 Georgia is a party to the Framework Convention for the Protection of National Minorities.39 The human rights provisions of the Constitution may be subcatego- rized to include general human rights, minority rights, language rights, General provisions in the Georgian Constitution on international law and a right to nationality (the provisions for which also concern the follow the pattern of many other recent constitutions, displaying what process for determination of nationality). Each category is considered writers have called “international law friendliness”.40 Receptivity or here in turn. “friendliness” of a constitution to international law is not only a mat- ter of interpretation – i.e., the availability of international sources as 1) The Preamble of the Constitution indicates that it is the “will” of the aides to determine the meaning and application of domestic rules. It citizens of Georgia, inter alia, “to guarantee universally recognized hu- also may expressly incorporate international obligations, including man rights and freedoms.” Article 7 binds the State to observe these customary international law, into domestic law.41 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- The international law provisions of the Constitution of Georgia may stitution. These include the array of rights typically guaranteed in a have specific relevance to the settlement of the autonomy questions. modern constitution, including equality before the law. The incorporation of international obligations into the constitutional law of Georgia – for example, obligations relative to the treatment of 2) Specific rights with relevance to minorities – although not expressed national or ethnic minorities – may make the obligations a matter for as collective minority rights per se – are also recognized in the Con- Georgian courts. A breach of an international obligation of the State stitution. Article 14, provides legal equality, regardless, inter alia, of is not typically actionable directly in the national judicial system, but linguistic, national or ethnic identity or place of residence. Further- incorporation of the obligation into municipal constitutional law may more, Georgian constitutional law includes a provision against organ- make it so. A question is presented by the final clause of article 6(2) ized private action aiming to “incite… hatred.” The protection in article of the Constitution, which would appear to provide that constitutional 26(3) (prohibiting the “formation and activity of political parties which provisions prevail over inconsistent international commitments. Ac- aim [inter alia]… to incite to national, local, religious or social hatred”) cording to international law, however, a State cannot avoid its inter- may be seen as specifically relevant to the rights of minorities. national obligations by arguing that the commitments are inconsistent 3) Further minority rights provisions relate specifically to language with its constitutional law.42 rights, including language rights in Abkhazia. Article 8 provides as follows: d) Constitutional Provisions on “The State language of Georgia shall be Georgian, and in the Abkhazia and South-Ossetia Autonomous Republic of Abkhazia, Abkhazian [shall also be the The Constitution of Georgia establishes certain individual rights (hu- State language].” man rights) as applicable without distinction to all natural persons in There is no comparable provision for recognition of the Ossetian lan- Georgia. It also establishes certain special rights, applicable to the au- guage in South-Ossetia. However, by the terms of article 8, it is clear tonomous regions of Georgia—Abkhazia and Ajara, and though these that the constitution can accommodate dual State languages – or at do not apply by specific reference to South-Ossetia, it would be a fair least dual State languages within a given territorial sub-unit. No construction to apply at least certain of them to that territory as well. constitutional provision prohibits dual State languages. Further lan- The latter category of rights concerns the territorial status of the auton- guages may then be designated “State languages” in their own territo- omous regions within a framework of constitutional law. Both catego- rial spheres. Article 8 would lend support to language provisions in ries of rights – human rights and special regional rights – may afford a settlement agreement – especially as against objections that might protections for Abkhazians and South-Ossetians. be raised under the various “State structure” and territorial integrity provisions of the Constitution. 18 Conflict resolution in Georgia A synthesis analysis with a legal perspective 19

Additional reference to linguistic rights appears in article 38(1) which according to which “[a] citizen of Georgia may not simultaneously be guarantees equality of the citizens of Georgia, “irrespective of their na- a citizen of another country,” except in the situation specified in the tional, ethnic, religious or [regional] linguistic origins.” Moreover, all same paragraph. The specified situation is that in which the President citizens “shall have the right, without any discrimination or interfer- has granted citizenship to a foreign national, “For his/her services to ence, to freely develop their culture and to use their native language Georgia or if the bestowal of the Georgian citizenship is in the State’s in private and in public.” Article 38(1) does not in itself establish a interest.” The President thus may grant citizenship to a person also constitutional basis for creating institutions for the protection of the holding a non-Georgian nationality, if it is determined that either of language rights guaranteed therein. This raises the question whether two conditions is met. The latter—“if the bestowal of… citizenship is article 38(1) only covers individual rights, or may act as a mechanism in the State’s interest”—would admit of few limits on the President’s for the reinforcement of those rights through special statuses or pro- discretion in this field. The liberal allowance to Presidential discretion tections for regions or ethnic or linguistic groups. However, the sec- could be useful, in the event that a settlement involved revisions of ter- ond paragraph of the same article contains a saving clause, reminis- ritorial border or other dispositions resulting in a change of national cent of the provision to similar effect in the 1970 Friendly Relations jurisdiction over persons. Declaration,43 making clear that the rights of minorities are not to be exercised to the detriment of the territorial integrity of the State: Special Group or Territorial Rights “In accordance with universally recognized principles and rules The Constitution refers by name to three territorial sub-units in Geor- of international law, the exercise of minority rights shall not un- gia: Abkhazia, Ajara and South-Ossetia. Article 3(4) provides, “The sta- dermine the sovereignty or structure of the State, the territorial tus of the Autonomous Republic of Abkhaz [sic] is determined by the integrity or political independence of Georgia.” Constitutional Law of Georgia, On the Status of the Autonomous Re- public of Abkhazia.” Article 3(3) makes provision, mutatis mutandis, One further provision relative to linguistic rights is Article 85(2) that for a Constitutional Law for Ajara. The constitutional situation of provides as follows: South-Ossetia appears, however, different. No provision is made for a “Legal proceedings shall be conducted in the official language separate South-Ossetian instrument. of the State. Persons who do not have a command of the offi- Abkhazia receives further constitutional rights relative to its represen- cial language shall be provided with an interpreter. In the dis- tation in central Georgian State organs. Under Article 4, paragraph 3, tricts where the population does not have a command of the the Georgian Senate “consists [inter alia] of members elected from Ab- State language, the teaching of the State language and the solu- khazia, the Autonomous Republic of Ajara and other territorial units tion of the issues related to the conduct of legal proceedings are of Georgia […]” The omission of South-Ossetia in article 4(3), and in guaranteed.” other articles relating to Abkhazia, does not, however, preclude future The question to establish local languages in Abkhazia as official (or provisions extending special representative rights to “other territorial dual official) languages in court proceedings is not entirely clear. Arti- units of Georgia.” In fact, that phrase positively suggests the possibil- cle 85(2), taken on its own, does not go this far. But nor does it preclude ity of such provisions. Additional Abkhaz representation is guaranteed that possibility. Though article 85(2) provides that proceedings shall in Article 55(1) according to which at least one Vice-President of Par- be conducted in “the official language [singular] of the State” [empha- liament will be a member elected from the Autonomous Republic of sis added], the provision could well be interpreted in light of article 8. Abkhazia. A second language is recognized as a “State language” in Abkhazia and The “higher representative bodies” of Abkhazia have also been granted other second “State languages” could be recognized in other regions. a number of other rights. They have the right of legislative initiative 4) One final aspect of human rights that is of relevance for both Ab- (article 67, paragraph 1) and under article 89(1), they are among the or- khazia and South-Ossetia is the provision in Article 12, paragraph 2 gans having the right to initiate proceedings in the Constitutional Court of Georgia. The Constitutional Court, on “a constitutional application 20 Conflict resolution in Georgia A synthesis analysis with a legal perspective 21

or a submission” by one of the organs having the right, is competent to Georgian constitutional law. The territories make powerful claims un- do, amongst other the following: 44. der international law and those claims that must be dealt with prior to looking for a suitable constitutional solution. „„ “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; 3. THE LAW GOVERNING „„ consider disputes on the delimitation of competences between INDEPENDENCE State bodies; As pointed out above, both Abkhazia and South-Ossetia have made „„ consider disputes concerning the violation of the constitutional declarations of sovereignty and claim independence under interna- law “On the Status of the Autonomous Republic of Ajara; tional law. What is the validity of such declarations in terms of inter- „„ consider disputes related to the constitutionality of referenda and national law? elections. “ a) Patterns of Independence since 1945 There is a clear difference in the status of Abkhazia and South-Ossetia The community of States has since the end of World War II witnessed under the Constitution. The Constitution includes a provision (Arti- the emergence of over 120 new independent countries. A majority of cle 3) for the elaboration of special rights under special status laws for these countries was formed through the process of decolonization, Abkhazia and for Ajara. In contrast, the Constitution refers to South- the most important form of State creation in the second half of the Ossetia by name only once, and in the general provision of article 1(1) twentieth century.45 The recent dissolutions of the USSR and the SFRY relative to the validity of the act of independence of Georgia. The ques- have also created several independent States. The creation of so many tion, then, may be presented how to accommodate in the Constitution new States has affected both international law and the practice of in- special rights for South-Ossetia. One approach would be constitutional ternational organizations. The question remains whether the creation interpretation. The provisions which give a wide margin and specific of States is regulated by international law or whether it is a question constitutional location to special territorial rights for Abkhazia and of fact – or a mixture of both. A categorization of the ways in which Ajara (and language rights for the former) may be interpreted as al- new States have been created helps to identify the legal rules and po- lowing the same or similar rights for South-Ossetia. Another approach litical considerations involved in different situations. James Crawford would be constitutional amendment. Parallel provisions for South-Os- has identified the following different modes of the creation of States: setia could be added to the Constitution as part of a settlement of the 1) original creation of States on unoccupied territory, 2) the creation autonomy questions. of States with prior status of dependency, 3) grants by or forcible sei- As a conclusion, it may be said that the Georgian constitution provides zure of independence from a previous sovereign, 4) the consolidation a supple fabric for the accommodation of many types of settlement that of autonomous or separate parts of “divided States”, and 5) the various may emerge from future negotiations. Nevertheless, the possibility of forms of amalgamation or merger into “unions of States” with distinct constitutional change should not entirely be dismissed, especially in legal personality.46 regard to the need to adopting a status law in regard to South-Ossetia. The two most important methods by which new States have been In a general sense, it may be assumed that any settlement would have formed are the grant of independence by the previous sovereign (dev- to be enshrined as part of the Georgian constitution so as to accom- olution) and the forcible seizure of independence by the territory in modate the two territories that have moved to claiming full independ- question (secession)47 Grants of independence involve the consent of ence – something that the constitution does clearly prohibit. However, in the end the matter cannot be dealt with exclusively as an issue of 22 Conflict resolution in Georgia A synthesis analysis with a legal perspective 23

the parent States and thus rarely face objections from the international Self-Determination and Territorial Integrity community. The most frequently invoked legal principle in connection with the The opposite method, secession, is frequently condemned and conse- creation of States since 1945 has been self-determination. That prin- quently rarely successful. Existing States have shown understandable ciple entails the right of a people living in a territory to determine the reluctance to accept secession.48 The problems with regard to secession political and legal status of that territory, in some cases by setting up are evident: a general right of secession would destabilize the interna- a State of their own. The principle of “self-determination of peoples” tional order. Since 1945 there have been numerous attempts of unilat- is expressly mentioned in Articles 1(2) and 55 in the UN Charter, and eral secession by entities within independent States. 49It is important implicitly referred to in Articles 73 and 76(b), dealing with colonies however to note that the option of independence by secession has been and dependent territories. Since 1945 the General Assembly has clari- successfully invoked only by colonial peoples – that is to say, peoples fied the content of the principle in several resolutions, including above that have been under overseas domination by the Western colonial all the 1960 Declaration on the Granting of Independence to Colonial powers. Secessionist attempts outside the colonial context have shown Countries and Peoples.52 Self-determination has also found its way into one common feature: where the State in question has maintained its international conventions. 53 opposition to secession, such attempts have received virtually no in- ternational support or recognition, even when other humanitarian as- The 1970 Friendly Relations Declaration by the UN consolidated the 54 pects of the situations have triggered widespread concern. No State position of the principle of self-determination in international law. formed since 1945 outside the colonial context has been admitted to According to the UN General Assembly, self-determination may the United Nations over the opposition of the predecessor State.50 be achieved in one of three ways: emergence as a sovereign in- The vast majority of new States after 1945 have been created within the dependent State, free association with an independent State, 55 decolonization framework by virtue of the traditional reliance on the or integration with an independent State. Free association or law of self-determination, accompanied with the need to respect exist- integration with an independent State should be the result of ing frontiers. However, since 1989 the dissolutions of the USSR and a free and voluntary choice expressed through informed and the SFRY have modified the law governing independence, especially by democratic processes. Although the right to self-determination highlighting the role and interests of the international community. The was elaborated in the context of decolonization it has always EC declarations on the recognition of independence in Eastern Europe been held that self-determination involves no automatic right in 1991 paved the way for taking many types of considerations into ac- of secession. count, including democracy, respect for rule of law, human rights and In modern law, the right of self-determination goes hand in hand with disarmament.51 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 b) The Legal Framework than the principle of the stability of boundaries. The legal framework of independence consists of practices, precedents On the other hand, t0 condition self-determination by the need to re- and principles that can be collected under three headings: 1) self-deter- spect the territorial integrity of States is not absolute. In case of op- mination and territorial integrity; 2) effectiveness; and 3) recognition. pressive regimes, a failure to agree on a regime for internal self-de- Each of these then describes an important – indeed crucial – aspect termination – or the absence of a reasonable expectation that such a of the law but their relative importance varies in respect of individual regime could be workable – justifies the extension of the right to form cases. While it seems correct to say that every establishment of sov- an independent State. 56 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. 24 Conflict resolution in Georgia A synthesis analysis with a legal perspective 25

Effectiveness or secessionary struggles or ongoing territorial disputes, recognition by other States may even have a decisive effect on the outcome.62 Fur- The principle of effectiveness plays an indispensable role in interna- thermore, recognition plays a role when a territorial power is invoked tional law. It is reflected in the creation of States by the insistence that in violation of international law, as e.g. in the case of the independent statehood involves the presence of four elements: territory, popula- State in northern Cyprus in 1983 which was created through invasion tion, effective government and capacity to enter into relations with by the Turkish authorities. In such cases non-recognition – especially 57 other States. While the first two and the fourth are relatively clear, the non-recognition on the basis of a UN Security Council Resolution – is third criterion – effective government- involves sometimes more com- decisive for depriving an otherwise effective entity of statehood. 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 The importance for statehood of acts of recognition by outside powers it claims its own.58 “Effectiveness” hence is not only about the need to can be exemplified in the process of the dissolution of the USSR and respect established facts. As laid out in a famous case from the 1920’s, the SFRY. Facing the independence demands of numerous entities the only effective governments can fulfil the duty of every State to protect EC on 16 December 1991 adopted the “Declaration on the Guidelines within their territory the rights of other States, in particular their right on the Recognition of the New States in Eastern Europe and in the to integrity and inviolability, together with the rights which each State Soviet Union” and the accompanying “Declaration on Yugoslavia”. The may claim for its nationals in foreign territory.59 EC Guidelines on Recognition exemplified the power of the interna- tional community to influence the outcome of struggles for self-deter- During decolonization insufficient attention to effectiveness often re- mination and statehood. The EC set up conditions on how new States sulted in weak or failed States, especially in the sub-Saharan Africa. should be organised and held that political conditions should play a The consequence of a departure from effectiveness is that new States decisive role. Altogether, the new law emerging from the events after 60 are incapable of guaranteeing respect for international law. Thus, 1989 has significantly highlighted the role of recognition in granting or the requirement of effectiveness is a means of ensuring that the new withholding statehood. State is viable and in a position to guarantee permanently and reli- ably the enforcement of international law on its territory. In practice, c) The Emphasis on Negotiated Solutions effectiveness is often shown by the willingness of other States to en- ter into transactions with the government of the relevant territory. In The foundation of the international legal system as well as the basis for this regard, effectiveness amalgamates into the third aspect of the law, the United Nations lies in the sovereign equality of all States (Article 2 namely recognition. (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 Recognition or impairing their existing legal rights. In order to decide disputes over Recognition provides a mechanism through which a certain state of their rights and duties States must settle their disputes peacefully (Ar- law is accepted. The formal act of recognition serves two legal func- ticle 2 (3) of the Charter). Under Article 33 of the Charter parties to tions: first, it determines an entity’s statehood and, second, it lays the any dispute which endangers the maintenance of international peace basis for the establishment of formal relations, including diplomatic and security shall “first of all, seek a solution by negotiation, enquiry, and treaty relations. In principle, recognition of an entity as a State mediation, conciliation, arbitration, judicial settlement, resort to re- does not create that statehood, only declares its existence.61 How- gional agencies or arrangements, or other peaceful means of their own 63 ever, an entity that does not receive recognition is unable to act as a choice”. These principles were reinstated in the CSCE’s 1975 Helsinki 64 State. Thus, although statehood is assumed to be present immediately Final Act. when the criteria for statehood have been fulfilled (territory, popula- The general obligation to negotiate corresponds to the practice of States: tion, government, capacity to enter into relations with other States), the vast majority of disputes are settled by direct diplomatic negotia- an acknowledgment of the presence of those criteria by States is cru- tions between the parties directly concerned. This practice extends to cially important in practice. In borderline cases, such as mini-States 26 Conflict resolution in Georgia A synthesis analysis with a legal perspective 27

territorial disputes and State creation; negotiation and agreement are the EC played an important role: the relevant principles were, on the described as among the most important methods by which new States one hand, the need to respect the old internal boundaries and, on the are formed.65 The ICJ has also recognized the importance of a negoti- other hand, respect for various rules in minority protection, rule of law ated solution with regard to the establishment of States.66 and peaceful settlement. In the Yugoslav context, the European Community and its Member Notwithstanding the increased role of the international community States emphasized a peaceful and negotiated outcome regarding the and emphasis put on political considerations based on case by case conflict in the Balkans.67 This is also reflected in the Guiding Princi- analyses, nothing has altered the fact that the law governing independ- ples of the Contact Group for a settlement of the Status of Kosovo68, in ence – taken the body of rules in toto or separately – does not set forth which the Secretary-General set forth to the Special Envoy that a ne- a right to unilateral secession outside the colonial context. This has gotiated solution should be an international priority. The UN Security been the case even where the secessionist entity has enjoyed wide de Council has also in the conflict between Georgia and Abkhazia stressed facto independence from the central power.71 Instead, the right of self- the need for negotiations and political dialogue in finding a compre- determination has found realisation within arrangements that pre- hensive solution.69 In conclusion, in situations of secessionary efforts serve territorial integrity. This practice is reinforced by the prominence international law requires the territory attempting to secede and its given to negotiated solutions in international law. parent State to negotiate a solution. e) Application of the Law to the Cases d) Conclusion: General Rejection of of Abkhazia and South-Ossetia Secession outside the Colonial Context On the basis of the foregoing analysis of the law applicable to statehood The argumentation presented above shows that the attainment of in- it is possible to draw certain conclusions regarding the legal position dependence by an entity is presently legally controlled by three sets of of Abkhazia and South-Ossetia and the claims of unilateral secession considerations: 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 1) The joint self-determination – territorial integrity principle; has never been, a set of “automatically” applicable rules or absolute 2) The stress on the need to guarantee the effectiveness of the relevant standards. It consists, rather, of a mixture of considerations, pointing entities; and 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 3) Recognition policies of the various States and international political independence have been considered very important (in prac- organizations. tice, only in colonial situations), at other times emphasis has been put The role these considerations play in actual circumstances varies in re- on dealing with specific grievances by way of cultural or regional au- lation to the practical, historical and ideological aspects of each situa- tonomy arrangements, minority rights regimes, representation in na- tion. During decolonization, the right of self-determination was under- tional institutions or particular legislative reforms, often supervised by stood predominantly in terms of the attainment of independence of the international institutions, and so on. There is no a priori limit to such colonial entity – often without too much respect for the effectiveness of institutional solutions. the political order on the ground. It is important to mention that since Second, key contextual determinants has been, on the one hand, the 1989, non-colonial situations have been treated as largely sui generis, very strong prohibition of the use of force in present-day international on the basis of their merits. The dissolution of the USSR took place law and the increasing involvement of the international community (in largely by agreement, following the territorial boundaries of old Soviet practice the United Nations) in the process of reaching a negotiated republics70 Cases such as Namibia, East Timor and the dissolution of solution. On the other hand, the attitude of the territorial sovereign the SFRY have highlighted the role of the international community, – whether it has been open to serious negotiation on the claims of the especially the UN Security Council. In the dissolution of the SFRY also 28 Conflict resolution in Georgia A synthesis analysis with a legal perspective 29

self-determination entity – has likewise been important. In particu- all colonialism that has constituted such oppression. 76 So far, even as lar, violent suppression of self-determination demands tends to sup- all parties have provoked armed clashes and engaged in them, there port the view that the only feasible solution may be sought from full is no evidence of such oppressive behaviour by Georgian authorities independence. that would warrant recourse to the exceptional solution of full inde- pendence. To the contrary, it appears that all sides have engaged in ag- The obligation to settle disputes peacefully under the UN Charter ap- gressive behaviour against each other and against neighbouring ethnic plies to all the parties. As such Georgia is under an obligation to take groups. In this respect, the claimant entities have through their own seriously the self-determination claims made by Abkhazia and South- behaviour undermined their claim to full independence. Ossetia and must show willingness to accommodate them (as point- ed out above, such an obligation exists already under Georgia’s own Finally, in order to analyse the legal meaning of the right of self-de- constitution). On the other hand, the representatives of the claimants termination one can break it down into two elements: the fact that the must likewise be open for a negotiated solution. It appears that this right belongs only to an entity that can be called a “people”, and the has not always been the case. For example in 2001 the UN Security fact that the right is ambivalent about what its consequences are. These Council called “in particular [on] the Abkhaz side, to undertake im- aspects are not independent from each other, so that the answer to the mediate efforts to move beyond the impasse”.72 There is no lawful way first question may have an effect on the response to the second. Never- for unilateral solution on either side. The conclusion of this is that any theless, it is still useful to consider them separately. solution that would involve the use or threat of force by either side may The question of what is a “people” (or a “nation”) enjoying the right of not create legal rights and in all likelihood will not be recognised by the self-determination has been a much debated topic of international law international community.73 and jurisprudence.77 There are no objective, pre-determined criteria The International Court of Justice is clear about the fact that the right about this. Criteria sometimes suggested and applied as elements in of peoples to self‑determination is today a right erga omnes.74 It can a definition of “people” include shared ethnicity, religion, history, lan- be invoked against all the members of the international community. guage and territory. However, although all such indicia are relevant, All States are called upon to respect it. The representatives of Abkhazia none of them works so as to automatically determine the presence of and South-Ossetia have formulated their claims of secession in terms of a “people” in the legal sense. A shared language or religion may some- their right of self-determination. The legal validity and consequences times support a sense of national identity, sometimes not. The fluid- of that claim bearing in mind also what has been said above about the ity of such criteria points to the fact that in a sociological or historical principles of effectiveness and recognition by the international com- sense being part of a “people” involves a sentiment, or a psychological munity should be clarified: “feeling” of belonging to some larger entity. International law cannot, however, and does not endow rights on the basis of (subjective) “feel- As a “principle”, it has been said, “self-determination of peoples is not ings” but aims to make them concrete by reference to (objective) crite- the inductive summation of specific rules but the formulation of a fun- ria. It is at this point that the legal principle of “effectiveness” receives damental value of the international community entailing consideration its significance. How “effective” or “real” are Abkhazia and South-Os- [of] non-exploitation or domination”.75 In other words, even as an im- setia as self-determination entities? portant legal principle, self-determination is both abstract and politi- cally loaded. Drawing definite conclusions for single situations from it As regards Abkhazia, there is little doubt that the Abkhaz population is a complex and sensitive endeavour. It is an expression of justice that not only feels itself a distinct “people”, and can be described as such is at its strongest in situations of manifest oppression directed against at least through the application of the ethnic, religious and linguistic a determinate human entity. In such cases – that is, where owing to the criteria as well as a shared history to some extent separable from the oppressive behaviour by the parent country there is no likelihood that histories of the other communities in the region. Also, it appears that any other arrangement apart from full independence will work – seces- the identity of the Abkhaz people as a people separate has been accept- sion may emerge as a feasible alternative. In practice, it has been above ed by the Georgians. The matter is somewhat more doubtful in regard 30 Conflict resolution in Georgia A synthesis analysis with a legal perspective 31

to South-Ossetia. This is a small population of a number in the range A second matter is that of plebiscites. The de facto authorities in Ab- of 70,000. Here the relevant subjective “feeling” links more to a sense khazia and South-Ossetia have organised several times referenda that of identity as “Ossetia”, that is to say, as part of a larger population have allegedly supported overwhelmingly independence, the most re- some of which lives in the territory of Russia. It must be pointed out, cent one organised in November 2006 in South Ossetia. These plebi- however, that in view of the practice of the United Nations, questions scites have not been internationally monitored nor recognized.79 How- of economic viability or population size, often referred to in regard to ever, representatives of the Russian Federation pointed that this ex- the two territories as undermining the claims to independence, are not presses the wish of the South-Ossetian people and cannot be ignored. prima facie relevant for the qualification as “people” nor even to even- Whether the plebiscites have been technically correct or not, from a tual independence. 78 legal point of view they change nothing in regard to the law’s strong preference against unilateral secession. Plebiscites are a normal and However, from the abstract definition of Abkhazians and South-Os- often used means to find out the views of a population. Hence even if setians as “peoples” (with the qualifications stated above), not much people express its wish for secession, this does not mean that it has a follows in regard to how their right of self-determination ought to be right to secession. realized. In this regard, three preliminary considerations complicate the picture. 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 One is the matter of territorial dispersion. The 1992 Georgian-Abk- actual territorial control, population or economic activity as arguments hazian conflict led to a massive refugee flow of non-Abkhaz popula- to make a claim for independence. Nevertheless, the claim needs to be tions (that is to say, mostly Georgians) into the rest of Georgian ter- genuine in the sense that its objective is truly the formation of a State ritory – over 300,000 displaced persons – completely transforming that is both capable of fulfilling its international obligations and actu- the population composition of the territory. From a mere 18 %, the ally intends to do so. It has been a persistent impression among inter- ratio of Abkhazians arose to close to 50 %. International law has a very national observers that the actual independence sought after by Abk- strong preference against forced population transfers. The same could hazians and South-Ossetians does not refer to creation of a sovereign be applied in this case. It is one thing to recognize the Abkhazians as state but that in fact, the entities would become, to different degrees a “people” in the legal sense, and another to link to that “people hood” politically, militarily and economically dependent on, if not part of, a the right of control over a determined territory – in this case the ter- third State, namely the Russian Federation There are several cases in ritory of Abkhazia – in which other populations also have (had) their international practice where the international recognition of statehood home. As pointed out above, the application of the principle of self-de- has been conditioned upon the sense of the genuineness (or otherwise) termination is largely conditioned on principles of justice and equity, of the independence of a territorial entity as in the Manuchukuo claim in particular oppression against a minority by the majority. To link to in China 80 or the international community’s rejection of the claims the Abkhazian population’s status as a “people”, the right of control of secession of Krajina and Eastern Slavonia from Croatia during the over the territory now defined as “Abkhazia” in a situation where a sig- Yugoslavian succession wars. 81 It is also known in judicial practice, ei- nificant part of the population has been driven into exile would reward ther, to take account of relationships of de facto dependency.82 In sum, past ethic cleansing and be contrary to the basic premise of the princi- international law does not recognize “independency” for the purposes ple of self-determination that seeks a just outcome for both Abkhazians of statehood in cases where a territory is under foreign domination or and non-Abkhazians. This has also been the premise of the “Paper on control on a long-term basis.83 Basic Principles” and the relevant UN Security Council Resolutions. Whatever consequences will flow from the right of self-determination To conclude, the condition of effectiveness of an entity is significant that undeniably belongs to the Abkhaz people, they cannot undermine as a measure of the genuineness of the claim for self-determination. the position of the refugees and internally displaced persons (IDPs). 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 32 Conflict resolution in Georgia A synthesis analysis with a legal perspective 33

achieve other objectives (e.g. boundary changes) than those that they Indeed, the realization of the demands of the world’s all ethnic groups declare on their face. Even if it were the case that conditions for seces- could not be met if solutions below full independence were not accept- sion might be present (which, as stated above, is not now the case), able or desirable. the representatives of Abkhazia and South-Ossetia would have to sat- There are numerous arrangements in the world that strive to reconcile isfy the international community of the genuineness of their claims – the sovereignty and territorial integrity of a State with the demands of that is, that they do not merely amount to attempts to seek unilateral self-determination by minorities or peoples living inside the territory. changes of Georgia’ s boundaries. It is difficult to see in what other way 85It enlisted “self-government, federalism, confederalism, unitarism or such assurance could be given than through serious and constructive any other form of relations that accords with the wishes of the people, participation in negotiations with the representatives of Georgia on the but fully cognizant of other recognized principles such as sovereignty actual grievances suffered by those populations within Georgia. and territorial integrity”. 86 What is important to point out is that prac- The Abkhazians and South-Ossetians undoubtedly have, to quote tice demonstrated that all such arrangements are always created ad hoc, Opinion 2 of the Arbitration Committee of the Peace Conference of the based on the specific circumstances of each case.87 There is in fact no Former Yugoslavia from 1992 “the right to recognition of their identity standardized way of reconciling territorial integrity with demands for under international law” and they are “entitled to all the rights accorded self-determination. However, some of the solutions arrived at in many to minorities and ethnic groups under international law”.84 They do not instances resemble each other as they entail greater political autonomy have a right of unilateral secession. Such secession could only be war- for the community that seeks protection from a larger society within a ranted if it were shown that the Abkhazians or South-Ossetians have State.88 This strengthens their value as legal precedents. The following been under unjust exploitation or domination by the majority popula- outlines key features of different options based on a case analysis of tion and that situation could no longer be corrected within the unitary five cases: South Tyrol/Italy, Aceh/Indonesia, Aland Islands/Finland, State. Of course, the separation of the territories could take place with Quebec/Canada and the Constituent Entities (the Federation of Bosnia full consent of everyone, including that of refugees from the territories. and Herzegovina & Republika Srpska) of Bosnia and Herzegovina. The This is currently impossible. But independence is not the only way to details of each specific arrangement are not spelled out here but are realise the right of self-determination. Alternatives to it include vari- summarised in a generalised manner. ous federative and autonomous arrangements. b) Federalism and Autonomy Ethnic conflicts that involve demands of self-determination against the territorial integrity of a State have frequently been resolved through 4. FEDERATIVE AND AUTONOMOUS granting autonomy to the claimant group. The common trait for both ARRANGEMENTS 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 a) Introduction: the territorial limit for these arrangements is sovereignty.89 integrity – group rights nexus Although there is no accepted definition of autonomy under interna- Whilst the above has shown that there is general rejection of secession- tional law it is generally understood to contain independence of ac- ist claims and attempts in modern international law and state practice, tion on the domestic level within defined areas that do not threaten the this should not imply a complete dismissal of the concerns of an ethnic survival of the parent State. Hence, functions relative to international minority or people. Instead the concern of secession are directed to set- status and political unity, conclusion of international agreements, for- tlements within options and solutions within the confines of the sover- eign relations, defence and currency matters are usually excluded from eignty of a unitary State based on the basis of a negotiated settlement autonomous arrangements. The degree of autonomy is often measured between the opposite extremes of secession and territorial integrity. 34 Conflict resolution in Georgia A synthesis analysis with a legal perspective 35

according to the extent of legislative power that is transferred to the to adopt their own internal constitution. A hierarchical order between autonomous territory. Autonomy is, however, different from ordinary the national and local constitutions guarantees priority to the former local or regional self-government as it purports to take account of the and consequently the Entities must fully comply with the national historical and regional circumstances of a minority or a people. constitution. Another form of arrangement that takes account of several different Local Competencies linguistic or ethnic groups – perhaps even better than autonomy – is federalism. In federal states the constituent entity has besides local The starting-point for any autonomous or federative arrangement is powers a right to participate in central affairs through involvement in that the central government is willing to bona fide give away some of its national decision-making through organs of the federal state.90 Hence, authority to the local entity. Meanwhile the central government retains constituent entities of federal states enjoy greater power than autono- its own powers with regard to issues that are considered essential for mous territories do. James Crawford has identified five features that its political unity. Competencies that generally belong to the local en- characterize all federations: 1) a division of powers between a central tity include education, culture, language, health and social affairs, land and regional government, 2) a certain degree of independence between policy, protection of the environment, regional economic development central and regional governments, 3) direct action on the people by and trade, natural resources and transportation. Matters falling under both the central and regional governments, 4) some means of preserv- internal security such as local police and security forces also tend to be- ing the constitutional division of power, and 5) the central govern- long to local competencies. The central government is usually unwill- ment’s powers includes substantially the whole foreign affairs power, ing to concede powers in the field of foreign policy, defence matters, fi- 93 together with autonomous authority extending to aspects of the inter- nancial policy, customs and immigration matters, and criminal law. nal affairs of the local States.91 Organs Constitutional Guarantees Autonomies almost universally exercise their local legislative power The multitude of arrangements granting autonomy to territories re- through locally elected legislative bodies. They nevertheless vary with veals the varying methods of fixing the basis of the arrangement in the respect to denomination of the legislative assembly itself and its re- 94 national legal order.92 Arrangements establishing autonomy for terri- spective enactments, the extent of their powers, as well as who is eli- tories should, however, – if permanency is aimed at – be fixed through gible to it. inscribing them in a national constitution or another act that is above Participation in National Decision-Making ordinary law. Additional protection to the arrangement can be provid- ed through ensuring that the autonomous status of a territory cannot The main difference between autonomous and federative arrange- be altered without the territory’s own approval. ments lies in the participation of constituent entities in national deci- sion-making in the latter cases. The extent can vary enormously. Au- In federations, the federative character which allows for self-rule of the tonomous arrangements also include fragments of such power. constituent parts is guaranteed by the constitutions. Thus, the powers of these sub-entities automatically enjoy constitutional protection. The Powers in the Field of International Relations constitutional guarantees of federative entities are consequently high- The powers of autonomies and constituent parts of federative States er than that of autonomies as one central element of federalism is the are not always limited to internal competencies. Sometimes these ar- participation by the territorial unit in nation decision-making. Hence, eas possess powers to act on the international plane. Since questions federative constitutions cannot be changed without the participation of of national defence almost without exception belong to the central or the self-governing entity itself. national government together with foreign policy, one remaining area Another feature that separates a federative arrangement from various in the field of international relations in which autonomous or federa- autonomous arrangements is that the constituent entities are entitled tive entity might have powers is the right to enter into international 36 Conflict resolution in Georgia A synthesis analysis with a legal perspective 37

agreements.95 Their treaty-making power is, however, generally limited The Role of External Actors to the areas that fall under their competencies, e.g. economic, cultural and social matters. The limited treaty-making power might further re- An examination of the autonomous or federative structure of South quire the approval of the central or national government. Tyrol, Aceh, the Ålands Islands, and Bosnia and Herzegovina clearly reveals the importance of having external actors involved in finding a Whereas the examination reveals that the autonomous entities exam- solution for the conflict as well as for upholding the settlement. Of the ined here possess no or only marginal powers in international rela- five explored cases only Quebec has to solely rely on internal guaran- tions but that those of federative character do have some power in the tees provided by the Canadian constitution. Whereas the precise legal field, practice has shown that powers on the international plane does status of all the other autonomous or federative entities in this study not necessarily correspond to the success of the arrangement. As Hurst also fall back upon constitutional provisions, they are preceded by in- Hannum has noted: “areas described as enjoying the greatest autono- ternational instruments or procedures setting down the framework for my in the area of foreign relations have not necessarily been the most the autonomy or federative model to be implemented. Accordingly, successful”.96 In addition, granting international powers – even limited the autonomous or federative entities also enjoy an international en- such e.g. in the economic and cultural fields – requires trust by the self- trenchment of their status. governing entity’s central government of neighbouring States. In the cases of South Tyrol, the Åland Islands, Aceh, and Bosnia and Financing Herzegovina, either third States, international organizations or other third parties have been involved. Third States have played a significant Any meaningful autonomy requires economic development of the ter- role in most of the cases. The settlements of both South Tyrol and the ritory in question. Hence, the legal basis for any autonomy should in- Åland Islands exemplify that neighbouring States with a vested inter- clude powers also in the field of economics and finance. First, a basic est – such as linguistic or historical ties with the unit claiming self- requirement for any autonomy is that the territory must have funds at determination – have been given some functions in the settlements of its disposal. These are usually received through taxation powers, al- the conflicts. location of resources from the central government or through incomes from natural resources. Second, the territory in question should have The importance of third States was only augmented in the arrangement authority to dispose of the money available to it. Indeed, all the five ter- created with respect to Bosnia and Herzegovina. Here, the international ritories have taxation powers and budgetary powers to a varying extent community sought to ensure respect for and the implementation of the based on their local competencies. Dayton Agreement by instigating institutional and third party guaran- tees. Both military and civil aspects of the Dayton Agreement which Protection of Multi-Ethnicity settled the federal structure of Bosnia and Herzegovina have been in One problem which many autonomous areas and federative entities place since the settlement in 1995. Today, the European Union Force in have to face when exercising self-government is the way in which they Bosnia and Herzegovina and the Office of the High Representative re- protect other ethnic groups or minorities within their jurisdiction as main the bastion of international presence in the territory. Moreover, a no self-governing entity would be completely homogenous. No matter number of States acted as guarantors or witnesses to the Dayton Agree- how internal boundaries are drawn there will always be trapped mi- ment. The Contact Group composed of France, Germany, Russia, the norities within, vulnerable to the ethnic superiority of a new majority United Kingdom and the United States were witnesses to the Dayton of the self-governing entity. Therefore, the very precondition for au- Agreement since they had led the negotiations leading up to the settle- tonomy or federative arrangements is compliance with human rights ment. Also in Bosnia and Herzegovina the neighbouring States Croatia and minority protection.97 and the Former Republic of Yugoslavia have been guarantors of the peace by acting as parties to parts of the Dayton Agreement. The cir- Protection of other ethnic groups than the majority residing in the au- cumstances in the Balkans were, however, extraordinary compared to tonomous area has been a prevalent feature in some of the cases under study here. 38 Conflict resolution in Georgia A synthesis analysis with a legal perspective 39

the other cases examined as the situation in the Balkans was declared a territorial integrity of Georgia within its internationally recognized threat to international peace and security by the Security Council. borders”.99 Other external actors have been involved in the settlement of the con- This entails that the conflict needs to be resolved between the two flicts as well. In the Ålands Islands case the League of Nations became entities and Georgia. If Abkhazian and South-Ossetian political lead- the forum in which deliberations and guarantees were undertaken. The ers have set independence as a goal to be reached in the future, it is a recent solution to the Aceh case has also brought to the forefront the goal that may be attained only through peaceful means and by nego- importance of actors outside governmental circles. The Crisis Manage- tiations with Georgia, as appropriate with international assistance. No ment Initiative, provided a mediation track for the Aceh/Indonesia unilateral action – and even less unilateral military action – may lead Peace Agreement, whilst the monitoring of the agreement was left to to independence. Also third States may not recognize a situation cre- the Aceh Monitoring Mission, a European Union led mission under its ated by the use of force. On the other hand, the Georgian government common security and defence policy. Thus, the role of regional organi- must be willing to accede to appropriate legislative and administrative zations has come to expand outside their own borders. 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- 5. IN SEARCH FOR SOLUTIONS al law has a strong preference for the territorial integrity of existing States, that principle is not unconditional. If the conditions of effective As explained above, the substantive law that frames the Abkhazian and self-determination are not genuinely provided, then the international the South- Ossetian conflicts consists of three parts: (1) the self-deter- community may begin to give support to independence. mination / territorial integrity-rule; (2) effectiveness; and (3) recogni- tion. These lay out the material conditions within which the question b) The Application of the Right of of the possible independence of any entities – including the two seces- Self-Determination outside the sionist regions – will fall. In addition, international law lays out two Independence Framework procedural conditions for any settlement, namely (1) that the solution must be found through peaceful means and (2) that in case the conflict Even though the right of self-determination does not guarantee an au- threatens international peace and security, it must be settled through tomatic right to independence, it is by no means without effect in situ- negotiation between the parties, if necessary with appropriate inter- ations such as Abkhazia and South-Ossetia. The substance of the right national assistance. From the substantive and procedural law several to self-determination extends from the provision of minority rights, conclusions may be drawn in regard to the search for solutions in the including linguistic and cultural rights to appropriate arrangements two conflicts. for political autonomy within the framework of an existing State. A limit case is a federal arrangement with formally equal parties under a) The Need to Find Solutions outside a unified sovereignty. Here there is much room to maneuver. Apart the Independence Framework from prohibiting the giving of effect to unilateral secession100, inter- national law does not spell out any uniform way in which the right of In section 3 e) it has been concluded that at least at present, the Abk- self-determination is to be realized. This will have to be the object of hazians and South-Ossetians do not have the legal right of unilateral negotiation between Abkhazians and Georgians on the one hand, and secession. This follows from the law’s predominant concern for peace South-Ossetians and Georgians on the other. However, it is clear that and stability of territorial situations.98 It also finds support in the nu- the nature of the self-determination arrangement must reflect the his- merous resolutions of the UN Security Council that reiterate “the com- torical situation prevailing in relations between the self-determination mitment of all Member States to the sovereignty, independence and community and the territorial State of which it is a part as well as the 40 Conflict resolution in Georgia A synthesis analysis with a legal perspective 41

nature of the needs and wishes of the relevant populations. Although, international legal rules or principles but must be negotiated between it may be realistic to assume that any negotiation/mediation frame- the parties. work will have to involve third parties, possibly international actors, and could well involve States that are direct stakeholders, the only par- c) Possibilities and Limits to Solutions ties with a decision making power are the parties directly involved. The in the 1995 Georgian Constitution extent of their involvement and methodology in involving them must The status of the territories will have to be negotiated with the view be carefully planned and depends also on the institutional framework. to reaching a comprehensive instrument or instruments that will have This will be discussed in section d) below. constitutional status in Georgia and, as appropriate, will be guaranteed While the appropriate level of self-determination rights must be sub- by members of the international community in one way or another. ject to negotiation between the entities and the Georgian government, The central matter to be decided will be the precise relation to be estab- international law and practice do provide pointers or directives as to lished between the national government of Georgia and the territories. how the appropriate level ought to be determined. Four sets of consid- As noted above, the exact content and/or application of an Abkhazia erations are relevant here: status law has yet to be determined and the Constitution has no ex- 1. the history of the relationship between the entities and the Geor- press provision at all for a South-Ossetia status law. For Abkhazia, an gian government; instrument for autonomy or another arrangement would have to be agreed; for South-Ossetia, there would have to be both a constitutional 2. the nature and focus of the self-determination claims (preserva- provision for an autonomy instrument as well as such an instrument tion and flourishing of language, religion, culture, economic life, itself. security, political autonomy); The 1995 Constitution of Georgia both enables and obstructs the reach- 3. the degree to which there are different groups or populations in ing of a solution. Three considerations are particularly important: the relevant territories whose position needs to be safeguarded as against local majorities; (i) the heightened position of territorial integrity under Georgian con- stitutional law, and the impediment this might be said to present 4. The role of external parties (international assistance, supervision, for revision of the “State structures” of Georgia; and possible guarantees). (ii) the incorporation into Georgian constitutional law of an interna- It may be said, tentatively, that the claims and situation of Abkhazia tional obligation to prosecute persons suspected of war crimes; and South-Ossetia, when assessed from a legal point of view, are not and identical. The notion of Abkhazia as a self-determining entity with an extensive system of self-determination as political autonomy has (iii) the under-specification of the status of South-Ossetia in the ex- been deeply rooted in the history of the region. The viability of Abk- isting constitutional framework (and, possibly, dispute relative to hazia as a self-determining entity is also de facto greater than that of the borders of the South-Ossetian territorial unit). South-Ossetia. Likewise, the ethnic and other composition of the two At the same time, certain aspects of the 1995 Constitution facilitate a regions is completely different. The Abkhaz population is larger than settlement process. The Constitution of Georgia: the South-Ossetian, and the general perception of Georgians tend to (i) incorporates a high receptivity to rules and principles of interna- regard Abkhazia as the native land of the Abkhaz people, whereas their tional law—both of general and of conventional derivation; 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 (ii) transposes into Georgian law commitments already undertaken by designed for the territories. Nevertheless, it is useful to emphasize that Georgia at international level relative to resolving the autonomy whatever the solutions, they cannot be “automatically” deduced from questions in Abkhazia and South-Ossetia, including commitments respecting minority and group rights; 42 Conflict resolution in Georgia A synthesis analysis with a legal perspective 43

(iii) accommodates the co-existence of provisions that Georgia is “uni- In the course of the years, negotiations over the fate of the two seces- fied and indivisible” with special status to Abkhazia (and Ajara) sionist territories have taken different forms. At the outset, the disputes and future measures according such status; were negotiated directly between the representatives of Georgia and the breakaway regions. Continued tension and armed conflict, includ- (iv) is not exclusive as to the territorial units which may be subject to ing breaches of prior agreements and pre-emptive activities on all sides special status and rights as units within the Georgian State and , have failed to create trust or common ground that make meaningful does (for instance through the clause respecting minority rights, direct negotiation on the final settlement impossible. The conflicts are article 38(2)) not preclude special autonomy arrangements for so deeply entrenched, and focussed on respective positions rather than South-Ossetia, including such as expressly permitted for Abkhazia solutions that involvement of third parties as mediators or facilitators and Ajara; has appeared necessary. (v) Permits the central government organs responsible for the con- At this point it is important to point out the different approaches that duct of foreign policy to commit Georgia to a multilateral settle- guide negotiation and mediation. Whereas a negotiation is a bargain- ment process relative to Abkhazia and South-Ossetia, and to final ing relationship between parties in a conflict, that is voluntary, and agreements of internationally binding character in this regard. where parties need to educate one another, a mediation is an extension In summary, there is no reason to think that the Georgian constitution or elaboration of a negotiation which involves a third party, who as- would put serious obstacles to what could be agreed. On the contrary, sists the parties to attain a mutually acceptable settlement of the issues the provisions of the Constitution appear to be so flexible as to accom- of the dispute101. A negotiation is of polarised nature, within a ‘zero modate almost any solution that respect the intangibility of Georgia’s sum’ perspective, mediation is multipolar and is focussed on ‘win-win’ boundaries. situations. d) Towards a Mediation or 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 Negotiations Framework interests that are communicated in their positions. An interest based As we have established, International law guarantees an unspecified mediation, would consider the search for a common solution workable right of self-determination to Abkhazia and South-Ossetia. At the same for all parties. The pre-conditions are that parties will understand the time it imposes on Georgia the obligation to negotiate with the rep- way in which the negotiation and mediation is structured, and to create resentatives of the two entities the specific content of each of the ar- an atmosphere in which these issues can be discussed in a congenial rangements. None of the parties are entitled to have recourse to force manner. Whilst this might seem to be an abstract and idealistic con- in order to support their position, and foreign States are under an ob- cept, one should first point out the role of official third party mediation ligation not to recognize any new territorial situation so created. This frameworks, such as the UN, the OSCE and possibly the EU, as well as leaves the question of who the ‘representatives’ of these entities are, unofficial or Track II third party mediation. Secondly we will consider open. possibly methodologies that could be employed to instigate mediation. It should be noted that mediation and negotiation are seen as two dif- It has also been established that the nature of the conflict in intra state, ferent methodologies. A further important pre-condition for third par- there fore internal, again implying that the future arrangements will ties involved to a mediation framework should be a full commitment have to be agreed upon between Georgia on the one side, and repre- to support the instigation of a mediation/negotiation, the mediation sentatives of the two entities on the other. in itself as well as the implementation of a peace agreement, which The analysis has also shown that the two conflicts despite many com- could involve monitoring of the peace agreement through external mon features are separate and ought to be negotiated separately unless observers, security sector reform, disarmament demobilisation and there are weighty reasons speaking to the contrary. reintegration. 44 Conflict resolution in Georgia A synthesis analysis with a legal perspective 45

Official third party mediation has so far been played principally by the Alternatively, special attention can be given to the OSCE not least ow- United Nations and, to a lesser extent, the OSCE. ing to its previous involvement in the conflicts. Here particular atten- tion should be drawn to the OSCE dispute settlement mechanisms from As regards Abkhazia, the formal international involvement has taken 1991 and 1992 that involve both mediation and conciliation.104 The place predominantly through the activity of the “Group of Friends” former include various procedures for the participation of a third party (France, Germany, Russia, the United Kingdom, and the United States) mediator in a dispute. This could be either an individual or a panel that whose involvement and proposals have been endorsed by the UN Se- would ultimately be entitled to propose a (non-binding) substantive curity Council. It must be stressed that from a legal perspective, this is, outcome if the parties have failed to reach such among themselves105. indeed a self-evident manner of conducting the negotiations. After all, under Article 24 (1) of the UN Charter, Member States have agreed to Of course any third mediator or negotiator in these conflicts need not “confer to the Security Council primary responsibility for the mainte- necessarily be an international organization, provided that the choice nance of international peace and security” and above all “agree[d] that is proposed and accepted by the parties. It is also common that indi- in carrying out its duties under this responsibility the Security Council vidual States or groups of States act as mediators. These could be third acts on their behalf”. There is a very wide contemporary practice of states with a proclaimed interest in sustainable peace and stability in creating informal groups of “friends” (or “contact groups”) from mem- the region. An obvious ‘candidate’ of a mediation would be a regional bers of the Council to deal with particular conflicts. Objections have, organization – the European Union which has a proclaimed policy in- however, occasionally been raised in this regard owing to the presence terest in the stability and security of its neighbourhood and is engaged of Russia among the “friends” and Russia’s keen interest in the support in political dialogue with Georgia and with one of the stakeholders, of the separatist movements. At the same time it should be pointed out Russia. Whilst it does not have yet an established mediation frame- that Security Council involvement through Council Members without work, this task could be taken up by the EU special Representative to Russia’s participation would be both legally inappropriate and (prob- the Region, or a representative appointed by its member states. As the ably) politically unthinkable. The formal equality of the permanent EU has a strong engagement in terms of its policies and financial in- members suggests that if any one of them (and in particular any one struments (ENPI and Stability instrument) in the region, it could have of the three leading powers) is involved, then the others cannot be ex- the means for supporting a peace process beyond the mere mediation cluded if they will participate (and it is obvious that Russia wishes to). of a peace settlement. However, there are many other potential alternatives for mediation, A forth, and somewhat untraditional format would be the appointment conciliation and even arbitration, and Article 33 of the UN Charter of a non-official mediator such as an organization or a representative that obligates Member States to have recourse to such (and other) thereof. Whilst these have no formal decision-making power (thus com- mechanisms does not lay out any precedence between them. Here the mitted to genuine, non power based mediation), their advantage lies in principle of “free choice of means” is only affected by what in the cir- flexibility, secrecy, and the ability to create a ‘safe’ space to explore is- cumstances may seem, all things considered, an equitable and effective sues and interests that might not surface in official negotiations. These solution and – which is to say the same thing – what the parties are in turn facilitate communication and might create common ground willing to accept. and understanding of key issues to be explored. Such efforts can be supported by regional or international organizations to facilitate the Such mechanisms could involve the good offices function of the UN implementation of a possible peace agreement. Secretary-General that has been successfully employed in a number of situations in the recent years.102 In fact, the successful negotiations Finally, it is worth noting that a combination of third parties is possible between the Georgian and Abkhaz sides that resulted in the cease-fire with explicit role sharing. For example, the UN could through its good in 1994 were chaired by the UN Special Envoy.103. offices provide for a mediator who could come from an EU member state, where the EU could provide a framework for pre-mediation, and 46 Conflict resolution in Georgia A synthesis analysis with a legal perspective 47

post conflict reconciliation measures as well as monitoring, possibly in for the Distribution of Competencies between Tbilisi and Sukhumi” has partnership with the OSCE. been developed by the Group of Friends and subsequently endorsed by the UN Security Council.109 In the absence of any alternative docu- With this in mind, it is worth reflecting on the principles and method- ment, these principles ought to be taken into account in the upcoming ology of a possibly mediation and negotiation framework. negotiations. First of all, regardless of the formats exemplified above, the prospects The form of the negotiation should not prejudice their outcome. The of success in such mediation obviously depend on the credibility of the outcome(s) ought to consist of: chosen mediator. Credibility applies to impartiality and skills of a me- diator. The mediator should be accepted by the parties involved. If this (1) A law or laws adopted at a constitutional level that enshrines the is not the case there is a possibility to appoint two mediators, albeit status arrangement agreed for both territories; with the same pre-condition. (2) An international instrument that “internationalizes” all or the Second the structure and the goal of the mediation needs clearly spell- most important parts of these arrangements and provides for an ing out: The mediation structure, methods and purpose, the role of par- international system of transition, assistance and guarantee. ties and stakeholders and the ‘ground rules’ are key elements of such. e) The Content of the Agreements 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 on Self-Determination might be useful if breaches of cease-fire have occurred or lack of trust As stated above, the content of the agreements on the self-determina- relates to other unclarified past events. This could include technical tion of Abkhazia and South-Ossetia will have to be left for the parties assistance as well as a legal assessment of the claims and the interests themselves. Nevertheless, international law practice lay out a number might be part of such mediation.106 In this way, a mediator might be of considerations that ought to be taken account in those negotiations. able to isolate some particularly difficult questions and issues and in- These include: terests to be reconciled. As it has been pointed out, mediation is par- I. An agreement on constitutional issues between the central govern- ticularly relevant in situations of stalemate where the parties have to ment and the relevant entity seeking autonomy; rethink their positions (such as that in Abkhazia and South-Ossetia).107 Such activities are crucially dependent on the provision of adequate II. A division of internal (and possibly some external) powers be- resources to the mediation project. tween the central government and the autonomy organs, including mechanisms for participation in national decision-making; Forth, within a pre-mediation it could be useful to organize a Peace Conference to give its authoritative opinions on the legal questions that III. Provisions for the cultural, linguistic and, above all, economic au- arise in the context of the settlement of the conflict. The agenda of such tonomy of the relevant region, including protection of the rights should involve key issues that pertain to the positions of the parties, of all ethnic groups. A working arrangement should also contain such as rights of the various populations 108 . In the long run, these provision on regional taxation and the collection of the budget of opinions can remove some of the more difficult questions away from the autonomy organs; the negotiation/mediation table, thus facilitating focus on the overall IV. External monitoring which might prove sustainability of the agree- settlement. At the same time this could allow for a reframing of the ment, especially at the outset where the implementation of the re- overall issues. gime might be hampered by difficulties in the adoption of detailed Finally a base document for the future talks is necessary. So far, no rules for the implementation of the general autonomy provisions. document has so far emerged that would have attained status as a mu- Any workable autonomy or federative regime needs to be substantial; tually accepted basis. However, the document titled “Basic Principles in order to serve as a reliable conflict-settlement mechanism it needs 48 Conflict resolution in Georgia A synthesis analysis with a legal perspective 49

to be understood by both parties as giving meaningful expression for plan established and implemented under supervision by international the self-rule of the relevant population. This requires the presence of at authorities. Finally, there should be a meaningful international super- least all four factors. vision of all the transition arrangements. 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 50 Conflict resolution in Georgia A synthesis analysis with a legal perspective 51

Footnotes 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 1 Svante E.Cornell, ‘Autonomy as a Source of Conflict’, World Politics 54 (January 2007, (visited 12 March 2007). 2002) 245-276 at 262. 18 UNSG Report on the Situation in Abkhazia, Georgia, S/2006/771, 28 September 2 Charles King, ‘The Benefits of Ethnic War: Understanding Eurasia’s Unrecog- 2006, para. 37. nized States’, 53 World Politics (July 2001) 542-552 at 544-544. 19 Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separatism in 3 The structure of the population was in 2003 according to an Abkhaz census the the South Caucasus – Cases in Georgia (Uppsala, 2002), at 188. following: Abkhazian (44 %), Armenian (21 %), Georgian (21 %), Russian (11 %) and others (3 %). International Crisis Group, Abkhazia: Ways Forward, Europe 20 Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separatism in Report No. 179, 18 January 2007. the South Caucasus – Cases in Georgia (Uppsala, 2002), at 186-187. 4 According to the 1989 census presented in e.g. Ivlian Haindrava, ‘The Conflict 21 Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separatism in in Abkhazia and a Possible Way of Resolving It’, in Bruno Coppieters, David the South Caucasus – Cases in Georgia (Uppsala, 2002), at 190. Darchiashvili & Natella Akaba (eds), Federal Practice: Exploring Alternatives for 22 Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separatism in Georgia and Abkhazia (VUB University Press, Brussels, 2000) 204-214 at 211. the South Caucasus – Cases in Georgia (Uppsala, 2002), at 188; International 5 See e.g. Svante Cornell, Autonomy and Conflict: Ethnoterritoriality and Separat- Crisis Group, Georgia: Avoiding War in South-Ossetia, Europe Report No. 159, ism in the South Caucasus – Cases in Georgia (Uppsala, 2002) at 174, 187. 26 November 2004, at 3. 6 Report of UNDP-Led Feasibility Mission, at v, cited in International Crisis 23 International Crisis Group, Georgia: Avoiding War in South-Ossetia, Europe Re- Group, Abkhazia Today, Europe Report No. 176, 15 September 2006, at 18. port No. 159, 26 November 2004, at 2. 7 Bruno Coppetiers, ’The Georgian-Abkhaz Conflict’, available at (visited 14 December 2006). port No. 159, 26 November 2004, at 4. 8 UNSC Resolution 896 (1994), 31 January 1994; Dov Lynch, ‘Why Georgia Mat- 25 Dov Lynch, ‘Why Georgia Matters?’, Chaillot Paper no. 86 (February 2006), In- ters?’, Chaillot Paper no. 86 (February 2006), Institute for Security Studies, at stitute for Security Studies, at 42. 18. 26 BBC, ‘Georgia Army Helicopter Fired On’, (visited 7 March 2006). 10 S/1994/397, Annexes I and II. 27 Council of Europe, Parliamentary Assembly, 2005 Ordinary Session, 26 January 2005, Address by President Mikheil Saakashvili, , 12 E.g. UNSC Resolution 1716 (2006), 13 October 2006, para. 2. (visited 21 March 2007). 13 This document, also called the Boden document, has remained secret. On state- 28 The Ministry of Foreign Affairs of Georgia, ‘Initiatives of the Georgian Govern- ments upon it see, e.g., ‘Interview with Revaz Adamia, Ambassador of Georgia ment with respect to the Peaceful Resolution of the Conflict in South-Ossetia’, to the UN’, 9 July 2002, (visited 12 (vis- March 2007). ited 21 March 2007). 14 UNSC Resolution 1716 (2006), 13 October 2006. Another recent actor involved 29 The European Commission, External Relations, ‘The EU’s relations with Geor- in helping Georgia to inter alia settle with the breakaway regions is the “new gia’, (vis- Group of Friends of Georgia” composed of the three Baltic States, Poland, Ro- ited 11 April 2007). mania, Bulgaria and the Czech Republic. ‘Latvian representative at “Friends of 30 Speech by EU Commissioner on External Relations Ferrero-Waldner, 25 Octo- Georgia” meeting indicates support for Georgia’s reform process’ 10 November ber 2006 before the European Parliament, SPEECH/06/629, European Parlia- 2006, (vis- ment Plenary, Strasbourg, 25 October 2006. ited 12 March 2007). 31 The text of the Constitution of Georgia referred to in this study is that appearing, 15 UNSG Report on the Situation in Abkhazia, Georgia, S/2003/412, 9 April 2003, in English translation, in Wolfrum (ed.), Constitutions of the Countries of the para. 4. World (Oceana Publications, Dobbs Ferry, New York, 2006). 52 Conflict resolution in Georgia A synthesis analysis with a legal perspective 53

32 Article 26, paragraph 3 provides as follows: “The formation and activity of po- 42 Article 27 in the Vienna Convention on the Law of treaties provides: “A party litical parties which aim to overthrow or to change by force the constitutional may not invoke the provisions of its internal law as justification for its failure to structure of Georgia, to violate the independence or territorial integrity of the perform a treaty”. Vienna Convention on the Law of Treaties, 23 May 1969, 115 country, to propagate war or violence or to incite to national, local, religious or UNTS 331. social hatred are prohibited.” See also article 69, paragraph 2, giving the Presi- 43 GA res 2625 (XXV) of 24 October 1970 (“Declaration on Principles of Interna- dent competence to “guarantee[] the unity and integrity of the country;” and ar- tional Law Concerning Friendly Relations and Cooperation among States in Ac- ticle 71, paragraph 1, setting out the President’s oath of office, which states, inter cordance with the Charter of the United Nations”), Principle 5, paras 7-8: “Noth- alia, that the President will “defend the independence, unity and indivisibility of ing in the foregoing paragraphs shall be construed as authorizing or encouraging the country.” Article 73(1)(h) identifies “infringement of the territorial integrity any action which would dismember or impair, totally or in part, the territorial of the country” as one of the conditions under which the President may declare a integrity or political unity of sovereign and independent States conducting them- state of emergency. Defense of the “territorial integrity of the country” is one of selves in compliance with the principle of equal rights and self-determination of the duties of the armed forces of Georgia: article 98(2). peoples as described above and thus possessed of a government representing 33 E.g. Canada: Reference re Secession of Quebec, 1998 SCJ No 61, 115 ILR 537. 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 34 Declaration of Acceptance of the Obligations Contained in the United Nations disruption of the national unity and territorial integrity of any other State or Charter, signed at Tbilisi, 6 May 1992, by E. Shevardnadze, President of the State country.” See also United Nations World Conference on Human Rights, Vienna Council of the Republic of Georgia: 1684 UNTS 35. Declaration and Programme of Action, 25 June 1993 (1993) 32 ILM 1661, 1665. 35 Op 209 (1999), 27 January 1999, PA COE, para 10(ii)(b). 44 The competences of the Constitutional Court include also: to consider on the 36 Ibid para 10(ii)(b)(g). 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 37 Ibid para 10(i). Opinion 1201 (1993) adopted the text for the Additional Protocol other powers determined by the Constitution and the organic law of Georgia; to to the Convention for the Protection of Human Rights and Fundamental Free- consider the constitutionality of the creation and activities of political associa- doms, concerning persons belonging to national minorities. tions of citizens; to consider disputes related to the constitutionality of referenda 38 Op 209 (1999), 27 January 1999, PA COE, para 10(iv)(f). For monitoring the un- and elections; and to consider the constitutionality of international treaties and dertakings which Georgia made in connection with its accession to the Council of agreements. Europe, see PA Doc 10779, 5 January 2006, “Implementation of Resolution 1415 45 Marcelo G. Kohen, ‘Introduction’, in Marcelo G. Kohen (ed.), Secession. Interna- (2005) on the honouring of obligations and commitments by Georgia.” tional Law Perspectives (Cambridge University Press, 2006) 1-20 at 1. 39 2151 UNTS 246, 1 February 1995, entered into force 1 February 1998. Georgia 46 James Crawford, The Creation of States in International Law (2nd edn, Claren- ratified the Convention on 22 December 2005, and it entered into force for Geor- don Press, Oxford, 2006) at 255. gia on 4 January 2006. 47 The decolonization process witnessed many cases where the parent State granted 40 E.g. that of the Czech Republic, Hungary, and South Africa. Section 39(1) of the independence to its former colony, e.g. Algeria in 1962 from France on the basis South African constitution provides, “[w]hen interpreting the Bill of Rights, a of the Evian Accords, Angola from Portugal in 1975 through the Alvor Agreement court, tribunal or forum… (b) must consider international law; and (c) may con- and Madagascar in 1960 after negotiations with France. sider foreign law;” and section 233 provides, “every court must prefer any rea- sonable interpretation of the legislation that is consistent with international law 48 Marcelo G. Kohen, ‘Introduction’, in Marcelo G. Kohen (ed.), Secession. Interna- over any alternative interpretation that is inconsistent with international law.” tional Law Perspectives (Cambridge University Press, 2006) 1-20 at 3-5. See, e.g., Thomas Buergenthal, “Modern Constitutions and Human Rights Trea- 49 Examples of unsuccessful cases include those of Katanga, Biafra and Somaliland ties,” (1997) 36 Columbia Journal of Transnational Law 211, 212. in Africa, Republika Srpska and Kosovo in the SFRY, Chechnya from the Russia, 41 For discussion of the incorporation of international law into certain national Quebec form Canada and of course Abkhazia and South-Ossetia from Georgia. constitutions, see Tijanyana Maluwa, ‘The Incorporation of International Law Still, there are cases in which secession has been approved of, e.g. Senegal from and its Interpretational Role in Municipal Legal Systems in Africa: An Explana- France in 1960, Singapore from Malaysia in 1965, Bangladesh from Pakistan in tory Survey’, (1998) 23 South African Ybk IL 45, 46; Dermott J. Devine, ‘The 1971, and Eritrea from Ethiopia in 1993. Relationship Between International Law and Municipal Law in Light of the Con- 50 James Crawford, ‘State Practice and International Law in Relation to Unilateral stitution of the Republic of Namibia’, (1994) 26 Case Western Reserve JIL 295, Secession’, in Anne Bayefsky (ed.), Self-Determination in International Law: 313-4; A.E. Dick Howard, ‘Toward Constitutional Democracy: An American Per- Quebec and Lessons Learned (Kluwer Law International, The Hague, 2000) 31- spective’, (2003) 19 Journal of Law and Politics 285, 287. 61 at 53, 57. 54 Conflict resolution in Georgia A synthesis analysis with a legal perspective 55

51 Declaration on Yugoslavia (Extraordinary EPC Ministerial Meeting, Brussels, Liberation Organization (PLO) was not accepted as a State, due to the lack of ef- 16 December 1991) 31 International Legal Materials 1485; Declaration on the fective control over the claimed territories. Guidelines on the Recognition of New States in Eastern Europe and in the Soviet 61 Oppenheim, International Law, vol. 1 (1st edn, 1905) at 110, §71. Union, 16 December 1991. 62 For example, most States refused to accept the secession of Biafra from Nigeria 52 GA Resolution 1514 (XV) 14.12.1960. in 1967-70, while the decolonization process witnessed recognitions of a new 53 The common Article 1 of the two international human rights covenants of 1966, State although the colonial country was still in power of the territory (Algeria, the International Covenant on Civil and Political Rights (ICCPR) and the Inter- Guinea-Bissau). national Covenant on Economic, Social and Cultural Rights (ICESCR), reads as 63 The 1970 Friendly Relations Declaration reiterates the formulations from the follows: Charter, and reaffirms that international disputes shall be settled on the basis “1. All peoples have the right of self-determination. By virtue of that right they of the sovereign equality of States and in accordance with the principle of free freely determine their political status and freely pursue their economic, so- choice of means. cial and cultural development. ….. 3. The States Parties to the present Covenant, including those having respon- 64 The Final Act expressly stated that while frontiers could be changed, this could sibility for the administration of Non-Self-Governing and Trust Territories, only be done by peaceful means and by agreement. No situation created by the shall promote the realization of the right of self-determination, and shall use of force may be recognized as giving effect to valid legal rights. respect that right, in conformity with the provisions of the Charter of the United Nations.” 65 James Crawford, The Creation of States in International Law (Clarendon Press, Oxford, 1979), at 247, 215. 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, 66 In the Construction of a Wall case it stressed to the General Assembly the need to ICJ Reports 1975, at 31-33. It was also affirmed in the East Timor Case (1995). achieve “on the basis of international law, a negotiated solution to the outstand- ing problems and the establishment of a Palestinian State”.Legal Consequences 55 GA Resolution 1541 (XV) 15.12.1960. of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 162. 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 67 Declaration on Yugoslavia, Extraordinary Ministerial Meeting, Brussels, 16 De- to continued oppression by the territorial State and no expectation that internal cember 1991. self-determination could be meaningfully realised. 68 Letter dated 10 November 2005 from the President of the Security Council ad- 57 These criteria, based on the 1933 Montevideo convention, have since then at- dressed to the Secretary-General, S/2005/709, 10 November 2005. 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. 69 See e.g. UNSC Resolution 1716 (2006), 13 October 2006, para. 2; UNSC Resolu- Watts, Longman’s 1992), p. 120-125. tion 858 (1993), 24 August 1993, para. 9. 58 In 1920, three years after the independence of Finland, the International Com- 70 Nevertheless, the Baltic States regained their independence outside the negotia- mittee of Jurists found it not to be a sovereign state in the legal sense because tion process, by successfully enlisting recognition to their claim that they had of the lack of a government in effective control of the territory. The Commission been under illegal occupation. noted: “It is therefore difficult to say at what exact date the Finnish Republic, 71 James Crawford, The Creation of States in International Law (2nd edn, Claren- in the legal sense of term, actually became a definitely constituted sovereign don Press, Oxford, 2006) at 390. 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- 72 UNSC Resolution 1339 (2001), 31 January 2001. sert themselves throughout the territories of the State without the assistance of 73 There are numerous examples (e.g. South Rhodesia 1965-1979, the Northern foreign troops. The Aaland Islands Question: report of the Committee of jurists, Turkish Republic of Cyprus 1983-present, Iraq 1990, the break-up of the SFRY) LNOJ, Spec. Supp. No. 3, 1920, at 8-9. in which the UN Security Council has specifically reaffirmed the obligation of 59 Islands of Palmas Case, Netherlands v. United States (1928), Permanent Court of States not to give legal effect to situations emerging from the illegal threat or use Arbitration. Sole Arbitrator Huber. 2 R.I.A.A. 829. of force. See generally John Dugard, Recognition and the United Nations (Gro- tius Publications Ltd, Cambridge, 1987). 60 Gerard Kreijen, State Failure, Sovereignty and Effectiveness (Leiden, 2003) at 224-225. For instance, the “State of Palestine” declared in 1988 by Palestinian 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 56 Conflict resolution in Georgia A synthesis analysis with a legal perspective 57

Palestinian Territory (Advisory Opinion of 9 July 2004), I.C.J. Reports 2004, 84 Conference on Yugoslavia, Arbitration Commission, Opinion 2, 31 International para 88. Legal Materials (1992) 1497-1499 at paras 2, 4 (i). 75 Märta C. Johanson, Self-Determination and Borders. The Obligation to Show 85 For example, the African Commission on Human and Peoples’ Rights identified Consideration for the Interests of Others (Åbo Akademi University Press, 2004) a number of alternatives on how to exercise self-determination when it firmly 170. rejected the right of the Katangese people to secede from Zaire in 1992. 76 However, aggressive use of force against the claimant entity in situations such 86 African Commission on Human and Peoples’ Rights, Communication 75/92, Ka- as Bangladesh, East Timor and (arguably) Croatia and Bosnia-Herzegovina, did tangese Peoples’ Congress v. Zaire, para. 26. prepare ground for accepting full independence as the sole feasible alternative in 87 Hans-Joachim Heinze, ‘On the Legal Understanding of Autonomy’, in Markku those cases. Suksi (ed.) Autonomy: Applications and Implications (Kluwer Law Internation- 77 For discussion, see e.g. Martti Koskenniemi, ‘National Self-Determination To- al, The Hague, 1998) 7-32 at 8. day: Problems of Legal Theory and Practice, 43 International and Comparative 88 Hurst Hannum, ‘The Foreign Affairs Powers of Autonomous Regions’, 57 Nordic Law Quarterly (1994), 260-264 and especially James Summers, Peoples and In- Journal of International Law (1988) 273-288 at 273. ternational Law. How Nationalism and Self-Determination Shape a Contempo- rary Law of Nations (The Hague, Brill 2007). 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 78 The Republic of Palau, for example, a member State of the UN from 1994, has the Court noted that not even extensive autonomy curtails the sovereignty of the 19,000 inhabitants. parent StateLighthouses in Crete and Samos , P.C.I.J., ser. A/b, No. 71 (1937). 79 For example, following the referendum, on 13 November 2006, the Secretary- 90 Hans-Joachim Heintze, ‘On the Legal Understanding of Autonomy’, in Markku General of the Council of Europe stated that it was “unnecessary, unhelpful, and Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law Internation- unfair” and that its results would not be recognized by the international commu- al: The Hague, 1998) 7-32 at 24-25. nity ‘South Ossetia Votes For Independence’, Radio Free Europe/Radio Liberty, November 12, 2006 (visited 10 April 2007). don Press, Oxford, 2006) at 483-485. 80 In 1932, for example, the League of Nations scrutinised a claim to independence 92 Markku Suksi, ‘On the Entrenchment of Autonomy’, in Markku Suksi (ed.), Au- by Manchukuo, established in the (Chinese) territory of Manchuria in connec- tonomy: Applications and Implications (Kluwer Law International: The Hague, tion with a Sino-Japanese armed conflict in the area. The Commission set up 1998) 151-171 at 152. by the Council of the League (the Lytton Commission) observed in its Report that Manchukuo was not actually independent because its creation, continued 93 Lauri Hannikainen, ‘Self-Determination and Autonomy in International Law’, existence and internal (and foreign) policy were in fact determined by Japan. in Markku Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law Consequently, no member of the League recognized Manchukuo owing to mani- International: The Hague, 1998) 79-95 at 90-91. fest lack of actual independence and its illegal creation. David Raič, Statehood 94 Hurst Hannum & Richard B. Lillich, ‘The Concept of Autonomy in International and the Law of Self-Determination (Kluwer Law International, the Hague, 2002) Law’, 74 American Journal of International Law (1980) 858-889 at 865. at 78. Original source: Report of the Commission of Enquiry, League of Nations Publications, vol. 7, 1932, No. 12. 95 Hurst Hannum & Richard B. Lillich, ‘The Concept of Autonomy in International Law’, 74 American Journal of International Law (1980) 858-889 at 872. 81 It was held that those entities, predominantly inhabited by ethnic Serbians, would have been completely dependent on the “Federal Republic of Yugoslavia”, 96 Hurst Hannum, ‘The Foreign Affairs Powers of Autonomous Regions’, 57 Nordic that is to say, today’s Serbia-Montenegro. Journal of International Law (1988) 273-288 at 273. 82 In the Austro-German Customs Union case (1933), the Permanent Court of In- 97 Hans-Joachim Heintze, ‘On the Legal Understanding of Autonomy’, in Markku ternational Justice determined that entering a customs union with Germany, Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law Internation- Austria would have become dependent on the latter in a fashion that would have al: The Hague, 1998) 7-32 at 24-25. violated the Treaty of Saint-Germain of 1922 in which it had promised not to 98 See e.g. The Temple of Preah Vihear Case, ICJ Reports (1962) at 34-35. alienate its independence. Austro-German Customs Union case, Advisory Opin- ion, PCIJ Series A/B No. 41 (1931). 99 E.g. UNSC Resolution 1716 (2006), 13 October 2006, para. 1. 83 James Crawford, The Creation of States in International Law (2nd edn, Claren- don Press, Oxford, 2006) at 76. 58 Conflict resolution in Georgia

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’, (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.