T. Shamba, A. Neproshin
Е, Ё: ...
Legal basis of statehood and sovereignty
Chapter 3. Legal basis of statehood
3.1. Sovereignty and general provisions of international law
Before considering the question of a substantiation of legal aspects of sovereignty, it is necessary to give an explanation of the formulations and interpretation of some concepts and definitions. Examples include: ethnos, the people, a nationality, the nation, a national minority, etc. For Abkhazia, the ethnos is Abkhazians together with closely related people of the North Caucasus (Adygs, Abazinians, etc.). They represent an isolated ethnolinguistic group. An ethnolinguistic group living in the same territory may be presented as a nation, as a people or as a nationality. As L.A.Steshenko remarks,
“…in a broad sense the nation category can be defined as ethnosocial (and not always related by blood), a community with a developed and fixed consciousness of their identity (a common historical destiny, psychology and character, adherence to national material and spiritual values and national feelings, national symbols), and also (mainly at a formation stage), territorial language and economic unity which further, under the influence of integration and migratory processes, prove ambiguous, quite often losing their main meaning though by no means disappearing. Owing to various vital events, national unity can be supported by both material and (for a number of nations) by spiritual and psychological factors, in particular a common origin and historical destiny”.
All of this has direct relation to the Republic of Abkhazia and its people, as Abkhazians are not simply the nation, but the host nation. The number of defining signs of a nation also includes unity of the territory which it occupies.
Representatives of other nationalities who are also a part of the nation live in each state simultaneously with the native people (ethnos). The term and concept of “the native peoples” were introduced for the first time in 1957 by the ITO Convention № 107 “About the native peoples conducting a breeding way of life, in independent countries” and were confirmed by the similar ITO Convention № 169 of June 27th, 1989: “About protection and integration of the native and other populations conducting a breeding and semibreeding way of life in independent countries”. The native people, according to the Convention, are understood as the people living on their lands before the arrival there of settlers from other areas. But for some reason Adygs, Abkhazians, etc. are not considered as native peoples living primordially on their lands, though a large quantity of people from the central areas of Transcaucasia were artificially moved to their country for the purpose of transferring the Abkhazian monoethnos to a small nationality, and realisation of the "legitimate" capture of power by the creation of an artificial Georgian majority in the territory of Abkhazia. Besides, Abkhazians do not conduct a "breeding" or "semibreeding" way of life, and represent modern civilised people who are, as history confirms, the indigenous population, living on their own land and possessing their own sovereign and independent state by definition. In advance, we will say that the representatives of the Georgian nation occupying Abkhazia in the XX century, by one of the definitions given above, do not enter the concept of “the people of Abkhazia” and are invaders and newcomers, as the French were invaders and newcomers in Algeria and the Portuguese in Angola and Mozambique.
Concerning the question of the right of a people or nation to self-determination, it is necessary to consider the problem from the point of view of the possibility of development of the given people or nation. If all the necessary conditions exist for self-development, the question of national state independence or self-determination does not arise. In conditions when the development of the people is limited by the actions of another state (occupation or annexation), or as a result of dictatorship of the numerical majority of the people representing another ethnos, especially if this majority was artificially created (as took place in Abkhazia), there is a question of the right of the people and the nation to self-determination, and in this case it is lawful.
A considerable number of conflicts in the world are generated by one more numerous nationality using force to suppress the aspiration of a small nationality to independence. This is because small ethnoses, as a rule, together with independence also ask for territory on which they can enjoy this independence. The aspiration of a small nationality to independence, which is strictly called separatism, begins with the “small” peoples trying to study history actively. Then near to the textbook of history of the people, the geographical atlas is always found. During this period amazing things happen: the small people will come across pages of history when they were not small at all, and occupied a bigger territory than they do today. Then they investigate the history of “big” people and do not find any similar facts in it. The conflict begins with this discovery, and expands as the small people learn more and more of the facts confirming that the present majority became the majority by the intended policy of genocide and assimilation of the small people. At this moment the first explosion occurs, and the people start to fight for their rights, territory and sovereignty as a whole.
It should be noted that Abkhazia has always owned and now owns its own territory, and in this respect has all the foundations of sovereignty. The country territory is some kind of material resource for any state, without which it cannot exist. This is both a natural and social condition of its existence and functioning. Change of ownership of territory should and can occur only on the basis of self-determination by the peoples and the nations. Old methods of appropriation of territory - annexation, previous acquisition and cession - have lost their value and can be abolished and disavowed, if this does not contradict the main principles of international law, and gain as a way of acquisition of territories is forbidden under modern international law. But this is the theory, and in practice it occurs in another way. In our case, Georgia immediately used the aim of its withdrawal from the territory of Abkhazia to its own advantage. As Georgian power over this territory increases, the power of Abkhazians is reduced i.e. Georgia’s introduction of its ethnos at its own discretion leads to extermination of the native people of the country.
The principle of a national approach in the practice of building a state plays the major role. The degree of its influence on a policy is so great that neither religion nor ideology can be compared to it. Only the sovereignty of the nation can provide legitimacy to the state, and make available the closest connection between principles of nationality and legitimacy. Necessity for the presence of statehood is defined by the people living in the local territory.
The creation of new superpowers is based in most cases on the use and application of force, and military expansion against states which are weak in the defence or economic spheres. But if the stronger state, using brute force, tries to impose its power on other people, why do the people of the oppressed but self-dependent ethnos not throw off their oppressors even if the order imposed by the oppressors, and the territorial integrity of the country, will thus fail?. This was performed by the people of Abkhazia in 1992-1993.
The major sign of the state is the sovereignty. The sovereignty of the people means its full power or leadership in the decision of major questions during the life of the country, the government receiving the legal opportunity to independently solve all pressing questions of internal and foreign policy. It concerns both its internal make-up and the organisation of mutual relations with other subjects of international law, etc. Important, but not fundamental in the existence of a state is its recognition by the international community. Sovereignty is leadership of the state in the country within its borders and independence on the international scene, and it appears immediately with the creation of a state, getting de facto status without dependence upon its recognition or non-recognition by other subjects of international law.
World practice of development of statehood and international law established foundations and principles of sovereignty a long time ago. These are the presence of ethnos, the nation owning its own territory, cultural property, presence of a national language and traditions of statehood. Thus possession of territory is a material basis of state and national sovereignty. As a political basis of sovereignty, the existence of a stable, developed state is required, as well as a sufficiently developed political organisation and power structure. A legal basis of sovereignty is constitutions, declarations, international treaties fixing a sovereign equality of states, their territorial integrity, and non-interference in their internal and foreign affairs.
In the world there always have been and still are states with formal or limited sovereignty. Formal sovereignty is considered to be when it is legally and politically proclaimed, but actually, owing to the influence of other states dictating their will to it, does not happen. Partial restriction of sovereignty can be compulsory or voluntary. Compulsory restriction is imposed by the winning state after a war (or under the decision of the Central Committee of the RCP - the CPSU Central Committee as it was in Abkhazia in 1935-1990), and it always means servitude.
Voluntary restriction of sovereignty can be supposed by the state under a mutual arrangement with another for the sake of achievement of certain common purposes for them, and also when an association in the federation occurs, to transfer to it a part of the sovereign rights. But in this case the right of refusal of such voluntary restriction should remain, so that the federal treaty does not become one-sided.
After acceptance of the Charter of the United Nations, the principle of self-determination of the people has repeatedly, since resolution 545 (VI) in the General Assembly, received confirmation in United Nations documents. Among them it is necessary to name a document accepted by resolution 1514 (XV) from December 14th, 1960: the Declaration on the assignment of independence to colonial countries and their people. Other such documents include the International pact about economic, social and cultural rights and the International pact about civil and political rights (1966) and the Final certificate of the OSCE Meeting (1975), in which the right of the people to dispose of their own destiny is especially underlined.
The principle of self-determination of peoples is fully and clearly shown in the Declaration on the principles of international law, concerning friendship and cooperation between states according to the United Nations Organization Charter, and the resolution 2625 (XXV) accepted on October 24th, 1970 which includes: “Creation of a sovereign and independent state, free joining to an independent state, or association with it, or an establishment of any other political status freely defined by the people, are forms of realisation by these people of the right to self-determination”.
In the Declaration it is also emphasised that each state is obliged to refrain from any violent actions which could prevent the people from realisation of the right to self-determination.
An important element of the considered principle is the right of the people to ask for and receive support according to the purposes and principles of the Charter of the United Nations if they are violently deprived of their right to self-determination. The declaration states that “nothing in the above should be interpreted as authorising or encouraging any actions which would lead to a partition or to partial or full infringement of the territorial integrity or political unity of sovereign and independent states, observing in the actions a principle of equality and self-determination of the people...”.
Thus, the parties which signed the Declaration oppose applications under an unreasonable and far-fetched pretext, ostensibly rendering assistance in realisation of the right to self-determination, or any actions breaking the territorial integrity and political unity of states, already “observing in the actions a principle of equality and self-determination of the people”, by other states or international organisations. But this document is directed towards preventing demagogic use of the slogan of self-determination for any hostile actions concerning a state in whose territory two or more peoples live, voluntarily realising their right to self-determination in the form of joint residence. Towards this, some of the international documents accepted within the limits of the CIS, including Agreements on creation of the CIS (item 5, 1991) in which the parties have confirmed “inviolability of existing borders within the limits of Commonwealth”, are directed.
The right of nations to self-determination and statehood is one of the higher achievements of civilisation, based on equality and mutual respect of the rights of all peoples without exception. At the same time, problems of international relations and, in particular, questions of national territorial determination, world experience shows to be the most complicated and difficult to solve. The reasons for that are two opposite approaches to the principle of self-determination. On one interpretation, the right to self-determination assumes the right of people to solve the question of their destiny and to simultaneously solve the question of the status of the territory occupied by them, and hence to define, according to their freely expressed will, the form of the state and its borders. The other interpretation denies the people of the annexed area or state the right to determine their destiny, and thereby the destiny of the territory occupied by those people, if the country from which they wish to separate does not agree.
The moral and political characteristics of recreated states, and the legitimacy of their existence and functioning, are directly dependent upon the legitimacy of their methods of creation and on their degree of support from the population. From experiences of the formation of new states in various parts of the world, it follows that the states which have arisen with the support of the masses always have more chances of survival and further development than the countries which do not have such support, especially if power belongs to another state. History testifies that states arise and perish as a result of periodically increasing contradictions and conflicts within themselves and as a result of contradictions between the old state which is becoming obsolete and a rising new state. This process is endless, never interrupted and not avoiding any country. Collapse of the Roman, British, French, Portuguese, etc. empires, and of the USSR, testifies to this. Both superstates and ordinary states pass this way, undergoing considerable changes, and in due course leave the world scene. This process will certainly concern all states existing nowadays, even the apparently strongest and most stable in industrial, military and other fields: the USA, Canada, France, etc. The processes observed in the modern world confirm that in the near future the main accent in mutual relations between peoples will be transferred from economic aspects to ethnic, which will undoubtedly result (and already has resulted) in collision between not only states, but also civilisations.
The final certificate of the OSCE Meeting confirmed the Declaration of Principles by which state participants should be guided in mutual relations. It solemnly confirmed that, proceeding from a principle of equality and the right of peoples to dispose of their destiny, “all peoples always have the right to define, under conditions of full freedom, when and how they wish, their internal and external political status without intervention from the outside and to carry out at their own discretion their political, economic, social and cultural development”. All the international documents mentioned above proceed from this inalienable and non-cancellable right.
The subjects of international law involved in the process of self-determination are considered to be: the people, aspiring to take advantage of their inalienable law; the state in whose borders these people live; interstate organizations; struggling nations in the name of bodies of national resistance, as initial subjects of international law; and also transnational corporations, people and representatives participating in the economy, and international non-governmental organisations. As for the people, it is a question first of all of the population long since living in a certain territory - the host nation, which on occasions (and this concerns Abkhazia) makes less than 50 % of the whole population. But especially for this nation and these people, the possibility of their own development is provided. The requirement to honestly carry out the instructions of international law concerning the principle of self-determination is initially addressed to the state from which the self-determined people are separating. An unconditional duty of the state to respect the expressed will of the people corresponds to the right of the direct subjects of legal relations - the people making the free decision about their destiny, up to separation. Hence, the necessity of submission to the will of involved people represents the essence of the principle of self-determination. This is fair for the states whose evolution occurred in the background of natural historical events, as was the case in Abkhazia till 1864.
As to the development of evolutionary processes during the subsequent period in Abkhazia, it is necessary to take into account the settlement of a wide territory by people from areas of Central Transcaucasia (Georgia, Armenia) and from Russia, which completely changed the demographic condition of the country. In world opinion, such actions by an aggressive state are considered as colonial policy, annexation or occupation, and first of all steps must be directed towards the ending of the occupation and the exile of an aggressor from territory grasped by it, and towards the elimination of all consequences of such a policy. In the majority of countries which achieved independence, repatriation of newcomers and their descendants, even those who were born in the occupied country, was a consequence of illegal settlement by foreign people, as was the case in Abkhazia.
According to Article 27 of the International pact about civil and political rights, in the countries “where there are ethnic, religious and language minorities, persons belonging to such a minority, cannot be refused the right... to use its culture, to practise its religion, to execute its ceremonies, and also to use their native language”. It is the list of those human rights which were broken concerning the Abkhazian people. Resolution 47/135 of the United Nations the Declaration on the rights of persons belonging to national or ethnic, religious and language minorities had been accepted. But it was all declared for "national minorities", and after all Abkhazia was an original country, a state occupied by its native people, making a nation which by usurpation of power, and territory annexation, was made a national minority under a colonial regime.
In the advisory conclusion about Western Sahara the International Court, referring to the well-known Resolution 1514 (XV) of the General Assembly of the United Nations, confirmed that “application of the right to self-determination can be carried out only under the conditions of the free will of the interested people”. The International Court also noted that Resolution 2625 (XXV) of the General Assembly of the United Nations “once again reminds us of the necessity to take into consideration the will of the interested people”. Forms of realisation of sovereignty can be various - from national and cultural autonomy, territorial federation, or democratisation of the state up to full separation into an independent sovereign state. Resolution 49/148 of the General Assembly of the United Nations, called “World realization of the rights of the people to self-determination”, says: “The General Assembly of the United Nations... underlines the importance of world realisation of the rights of the people to self-determination for an effective guarantee of human rights”. Also, the resolution of the 49th session of the Committee of the United Nations on March 8th, 1996, on the destruction of racial discrimination, states in Item 7 Part V: “... The right of the people to self-determination is one of the main principles of international law”. The question of how to carry out and reveal this will of the people is not legal, but political. Its decision depends upon the competence of governments, the local and central authorities which should ascertain the free will of each person in the given territory and, in case of self-determination of the people and exit of the territory from the structure of another state, to take all measures for the realisation of a peaceful, nonviolent change of statehood.
When there is a speech about the Republic of Abkhazia, many publicists and politicians necessarily add the definition "self-proclaimed", aspiring thus to underline the “second-rate” status of the country. It is necessary to be reminded that many states of the world, including the USA, “the sample of modern democracy”, are self-proclaimed. As is known, in 1776 thirteen British colonies of North America accepted the Declaration of Independence, and thereby “self-proclaimed” a republic, and then by an armed struggle compelled their mother country to recognise their independence. Almost all South American states were self-proclaimed. In the 1820s they proclaimed independence and forced Spain to recognise their sovereignty through military actions. In Europe, Belgium and the Netherlands are included in the number of the self-proclaimed. Algeria too “self-proclaimed” independence and after a liberation war forced France to recognise the new state, despite the counteraction of some groups lamenting the sad destiny of one million French "refugees", or repatriates to be exact, lodged in that country in colonial sovereignty, and in the 1960s expelled from "their" land. As it is possible to see from these examples, the fact of self-declaration is not something unusual in world history or in international law.
The principle of the integrity and inviolability of a country also considers in an equal measure the prohibition of its violent partition or capture and seizure. Similar actions from abroad, from whomsoever they proceed, are classified as actions of direct aggression. Each state has a right and a duty to protect its territory and the citizens living on it. At the same time, the Charter of the United Nations does not use the concept of integrity of territory. It is a question of “territorial inviolability”, and the given concept is not concerned with self-determination, but with the non-use of force between states.
It is well-known that at the collapse of the USSR, Yugoslavia, and Czechoslovakia, nobody showed a wish to infringe the integrity of these states. The world community never undertook to keep the borders of any state which signed the Helsinki Agreement. As V.P.Stupishin notes in the article “Nations and freedom, real and imaginary”, to give up “the right to self-determination means to doom all ordinary people at best to violent assimilation, and at worst to extinction”. Within living memory, numerous examples of imperialist colonial powers putting forward such slogans as “Algeria is France”, “Mozambique is Portugal”, etc. have occurred, where the seized countries attached by force were declared “uniform and indivisible” territories of mother countries, who violently kept possession and confirmed that any self-determination by the people threatened the territorial integrity of the multinational colonial states and the firmness of their frontiers. The same occurs today in relations between Abkhazia and Georgia.
The concept of self-determination of the people has received a further development in United Nations documents. The General Assembly defined colonialism and all other forms of foreign domination and exploitation as an infringement of the right of the people to self-determination and of fundamental human rights, and as the right to self-determination is among collective human rights its negation also represents a mass infringement of human rights. However the world community organisations (the United Nations, EU) shut their eyes to these illegal actions by Georgia in Abkhazia. To show how political propoganda works in practice, as a veiled kind of leader to infringement of the rights of the people, we will quote from the letter written by A.Totadze, in charge of international relations for the Central Committee of the Georgian Communist Party, to the magazine "Dialogue" (1990 edition), in reply to A.Tausova's article “The day before” in № 13 of this magazine:
“The formation of the Abkhazian ASSR was an error from the very beginning, and it did not deserve this status basically because of two circumstances: the native Georgian population of Abkhazia quantitatively was much larger than that of Abkhazians, and under the practice operating at that time, for assignment of the status of a Soviet republic its population should make more than one million...
Perhaps A.Tausova and like-minded people will explain to us whether Abkhazia ever existed, or where it was situated?
It is interesting why Abkhazians so assiduously voice the groundless opinion that in Abkhazia Georgians ostensibly lived in insignificant numbers, and its only indigenous population are Abkhazians. Why is attention directed only to growth in the Georgian population , whilst representatives of other nations have increased in much greater quantities? There is a question: how to answer the fact that Georgians have lived in Abkhazia from time immemorial?”.
Very good questions! We hope that they are fully answered in the present work.
The principle of self-determination mentions not only the rights of the people, but also relations between the state and the person. The rights and freedom of the person and the right of the people to self-determination are interconnected and mutually dependent. There cannot be a speech about using the rights and freedom of the person if its collective right - the right of the people to self-determination – is not recognized, and conversely, it is impossible to carry out the right to self-determination if human rights are broken. The resolution of the General Assembly 637 (VII) of the United Nations on December 16th, 1952 specifies this interrelation and mutual conditionality, in which it is noticed, in particular, that the right of people and nations to self-determination is the precondition for using all major human rights. Therefore all international certificates about human rights carry the right of the people to self-determination as one of the basic, fundamental human rights. Only the Abkhazian people living in their own territory can define their own statehood, or confirm it if it already existed a long time before its de facto sovereignty was interrupted owing to various influences both from the outside and from within. Hence, from the point of view of international law, the Abkhazian ethnos has all the preconditions necessary for the recognition of Abkhazia de facto and de jure as an independent sovereign state.
V.Ilyin notices that for the development of a people or nation, a symbiosis of national aims and the political, economic, social and cultural interest of the nation is always necessary, thus no idea can be separated from these interests. The policy is always the balance of forces equalising expansion and national will. For this reason, active resistance from the people of Abkhazia to the attempt at its annexation by Georgia, and to Georgia’s political expansion, took place. Its forces were not in a condition to defeat such counteraction by the Abkhazian people, and it is impossible to change this attitude of the country - it can only be destroyed, as the leaders of “democratic” Georgia tried to do. It is possible not to recognise its sovereignty, it is possible to arrange a blockade, to transfer terrorists to the territory of Abkhazia - but these mean nothing, if there is a people and army in this country.
Imperialist formulas about “uniform and indivisible” possession, put forward under the pretext of protection of the territorial integrity of the state, in practice, as a rule, excused policies of annexation and national seizure. It is regrettable that such relapses into imperialism occur at different times, and currently this directly concerns Georgia and its mutual relations with Abkhazia. Revival of such ideas of serfdom is naturally accompanied by negation of the right to self-determination of the people, by which the fate of a silent appendage, in the form of the annexed areas, is prepared. The principle of self-determination assumes the possibility and legitimacy of change of the political status of the people, and thereby the possibility and legitimacy of change to the status of the territory occupied by it. On this basis, changes to borders of the state which result from occupation, breaking national independence, national unity, or the territorial and ethnic integrity of the people are lawful. Here there is no contradiction with the right to territorial inviolability. After all, as we already mentioned above, the principle of territorial inviolability concerns the protection of states against external encroachments onto their land.
At any real collision of principles as detailed above, it is necessary to ascertain:
a) Whether the "offending" government observes the principles of equality and self-determination of the peoples;
b) Whether the government really “represents all peoples” living in the territory of the given state, and whether there is no discrimination by “race, creed or colour of skin”.
If a state keeping the people within the limits of a territory does not answer these minimal requirements it should voluntarily agree in the name of justice that the people seeking self-determination will say so. The methods of self-determination are known - creation of a sovereign and independent state, free joining to an independent state or the establishment of any other political status.
Which form to select depends upon the will of the people. In a case when the state neglects its international obligations and applies repressive measures against the people demanding self-determination, they have a full right not only to show resistance, but also to address other states, or the international community, for help. All other states not only should render no help to the annexing state, but, on the contrary, are obliged to render to the people struggling for a statement of their right to self-determination, all necessary moral and material aid. In the particular case of Abkhazia, Russia is twice obliged to render such help - not only as a neighbour, but also as the original perpetrator of the present situation.
Concerning the institutional basis of statehood, it is necessary to consider the power which is violating the rights of the people, carrying out terror against the people, is not recognized by society and gives the need for civil disobedience. The international community recognised the following forms of the will of the people as an implementer of the right to self-determination: articles in the press, indignation, protests, revolts, national meetings, decisions of a representative body, and the resolutions of public organisations. The higher organized forms of direct democracy are
plebiscites (referenda) 17. These actions are especially lawful if the power which is violating the rights of the people is foreign, and the government representing this country is an aggressor. In this case the annexed state falls under the criterion of “foreign dependence” or “other forms of foreign dependence”, as is the case concerning Abkhazia.
Consideration of infringements of these rights as penal international crimes becomes one of the legal guarantees of observance of the right of the people to self-determination. In the draft of “the Code of crimes against the peace and safety of mankind” developed by the Commission of International Law on the instructions of the General Assembly of the United Nations, special kinds of crimes are allocated as extremely gross infringements of the right to self-determination: an attempt at annexation, an establishment or preservation by force of colonial domination, forced submission of any nation, or part of it, to foreign domination, etc. The seriousness of such crimes is shown by the fact that they undermine the basis of existence of a human society, such as took place in Abkhazia up to the end of the 20th century.
Connection of these types of crimes with infringement of the right to self-determination is especially visible in the case of an annexation, which means not only violent seizure, but also forced retention of the region by a foreign power, contrary to the will of its population. Annexation, according to the definition of aggression developed by the international community and accepted by the General Assembly of the United Nations on December 14th, 1974, is a part of this international crime and merits international responsibility.
It is very important to define what is necessary and sufficient for the recognition of state sovereignty. The basic attributes defining conditions of self-determination of a nation are:
1) presence of own territory and indigenous population united by citizenship;
2) presence of an operating constitution accepted by legitimate representative body;
3) statehood and power institutes - a working parliament possessing legislative powers;
4) laws accepted by parliament and obligatory for execution by both citizens and government institutes;
5) a general state language for the whole population;
6) political and economic independence from other countries.
According to the latest requirements of international law and the demands of people for self-determination or for the joining of one state to another, historical, ethnographic and economic reasons are usually considered, and also the will of the population of disputed territories (for self-determination) is taken into account. For the Abkhazian people, the nation possesses all these given signs.
It appears that for a recognition of the full sovereignty of a state this is insufficient. Practice shows that even the smallest state structure will be sovereign de jure only if and when its sovereignty is recognised by the majority of countries. The important factor influencing the existence of a state is its viability, and this concerns small states in a major way. Great powers possess full independence and sovereignty, but for small nations these always present problems. Their sovereignty, as well as their independence, is always in doubt, and subject to repeated investigations from their neighbours, especially if these are large states. However, small states, in the case of conflict situations, always have the possibility of obtaining help from other neighbours.
Expansionists, aspiring to the seizure and capture of another's territories, do not of course concur with this interpretation of the right to self-determination. They have always tried, and are still trying, to present this democratic form of mutual relations between peoples as undesirable and breaking the "lawful" status quo of "separatism".18. This is also promoted by a substitution of the concepts which occurred in the Final Helsinki Agreement. The slogan “territorial inviolability”, providing for the inadmissibility of aggression, annexation and occupation, and wars as a whole, was changed to the slogan “territorial integrity”, thereby legalising all kinds of “Anschluss” and presenting an insuperable barrier to people, nations and ethnoses seeking realisation of their legitimate right for self-determination which, by the way, was declared by the same Helsinki Agreement and other international documents.
In resolution 2200 (XXI) of the International pact about economic, social and cultural rights, accepted on December 16th, 1966, it is stated that: “All peoples have the right to self-determination. Due to this right they freely establish their political status and freely provide economic, social and cultural development” (article 1 item 1). Having signed the Final Helsinki Agreement, the participating states were obliged to respect “the right of the people to dispose of their destiny”, having confirmed that “all peoples always have the right to define, under conditions of full freedom, when and as they wish, their internal and external political status without intervention from the outside, and to carry out their political, economic, social and cultural development at their own discretion”.
17 As is known, the question on the independence of East Timor, occupied by Indonesia for more than 25 years, was solved by a referendum in 2002. After the fall of the dictatorship of General Suharto, the new authorities of Indonesia had to recognise the will of the people on the small island, of whom a third had been killed in 1975-1979 during the annexation and occupation of this territory.
18 States preventing the fair requirement of self-determination for people use the term "separatism" in an abusive, offensive sense, although it only describes the evolutionary development of countries in the course of formation of their statehood. Separatism is the political movement whose purpose is the separation from a state of part of its territory, creation therein of a new state (name) and diplomatic recognition of this state by the international community. Upon achievement of this purpose, separatism exists no longer. Along with separatism there are also other kinds of national movements: irredentism - movement for separation for the purpose of subsequently joining a territory to a neighbouring state, and autonomism - not encroaching on the territorial integrity of the state.
Some leading Georgian politicians name the struggle of the Abkhazian people for their rights as “aggressive separatism”. Is it possible to name the aspirations of Abkhazians to solve their problems by civilized parliamentary means, in response to bullying Georgian chauvinism, as “aggressive separatism”? By the way, Abkhazians are supported by all non-Georgian nationalities in Abkhazia. Where is the line between separatism and sovereignty, and why does the concept of "separatism" concern Abkhazia? This label only confirms the desire of Georgia to grasp territory not belonging to it, therefore for a justification of its aggressive and expansionist actions it looks for and uses such labels. It is very strange that the international community has taken an absolutely clear approach regarding Abkhazia - it has affirmed that the self-proclaimed independent republic does not admit that it should remain an integral part of Georgia.
The time has come to call things by their proper names: chauvinism is chauvinism, annexation is annexation, liberation of the people is liberation. It is necessary to completely eliminate the double standard concerning self-determination: one rule for Algeria, Bangladesh, East Timor, Goa, Western Sahara, Macao, Palestine, Papua-New Guinea and many other countries and territories (even the USA, “a democracy stronghold”, in 1775 eventually gained independence by “self-declaration”), and another for Abkhazia, for example.
The connection between observance of the right of people to self-determination and the prevention of international conflicts and wars was addressed in resolution 545 (VI) of the General Assembly of the United Nations, related to international peace preservation, which was accepted on February 5th, 1952. Infringement of this right always was an occasion for war, always led to bloodshed, and is considered as a constant threat to the world (casus belli). The general Assembly of the United Nations correctly speaks about the necessity of reckoning with the political expectations of all peoples, promoting these whilst preserving international peace and safety and developing a friendship between nations based on recognition of the principle of equality of the people and their right to self-determination. In practice, international relations, as well as available standard material, confirm that from both political and legal points of view the right of peoples to self-determination is both a precondition and a necessary condition of the world for friendship between peoples and between states. Thus the right of nations to self-determination as an imperative norm should always be recognised for all cases, no matter under what circumstances and on what basis the territory whose people bring attention to the question of self-determination was joined.
As for Abkhazia, there are some questions which are insufficiently explained in international documents, or are not considered at all during the study of problems of its sovereignty, unless a tendentious approach is taken at their discussion. These questions are the following:
1) How to solve the problem of restoration (not acquisition) of the sovereignty of Abkhazia, which was lost owing to aggression from the state which seized that country (Georgia), and also how to proceed if, thanks to a successful attempt, this sovereignty is returned, but the world community does not wish to recognise it?
2) What to do if one of the states (Georgia) concludes with the other ( Abkhazia) a political, economic or military union by means of military or other force, imposes another hegemony, and thereby changes Abkhazia’s status, statehood, ethnic structure of the population of the country, national policy and culture?
3) How to exist if neighbouring states (Russia19, Turkey) and world community organisations (the United Nations, the European Union, etc.), owing to unclear circumstances indifferently observe from the sidelines an occurring genocide, direct aggression and attempts at destruction of one of the most ancient ethnoses, and sometimes assist in these actions?
In Transcaucasia the situation has arisen in which the state of Georgia, existing for less than a century, using a policy of expansion and active military aggression during criminal non-action by the world community (and frequently with its complicity and help), could enslave, colonize, and for a while completely occupy the sovereign state of Abkhazia, carrying out a genocide leading to the destruction of its autochthons (the ancient ethnos of Abkhazians), and to the appropriation of territory primordially belonging to the Abkhazian people. The periods 1918-1921 and 1992-1993, when military and political expansion by Georgia took place in relation to Abkhazia, accompanied by intervention, occupation of the country and its political annexation, are known to the whole world. Finally, the occupation of 1918-1921 resulted in the violent change of a political system, which is defined as “the violent intervention of one state in the internal affairs of another, directed against its territorial integrity, political independence, etc.”. The military intervention which took place during the specified periods is the most dangerous type, and represents aggression.
The right to an establishment of the fact of aggression, the most dangerous kind of international crime, belongs in each concrete case to the UN Security Council. In the case of direct aggression, the question of its identification does not usually arise - it is any military occupation and annexation with the use of force and weapons, or the blockade of ports or coast by armed forces of the invading state.
19 As for Russia, it is hardly possible to name the circumstances as unclear. Here we have both the influence of “the Georgian lobby” and fear of losing its position in the Caucasus (by the way, this has been lost for a long time, because of the cowardly policy of the Russian authorities - in the Caucasus, as is known, people first of all respect force and boldness), plus the desire not to think about the possibility of revising the results of the “Belovezhsky deal”, and many other things.
Military occupation is classified as temporary occupation by armed forces of enemy territory during a war. The state, submitted to interventions, military aggression and an annexation attempt, being in an occupied condition, has the right to struggle against an aggressor by all means accessible to it. Thus self-defence can be individual if the state possesses sufficient resources for resisting aggression, and collective, being the victim state’s right to reflect aggression together with other states, and it can address the third states with a request for help in resisting attack. Such help can be given in many ways - from delivery of weapons to direct participation in resisting aggression. Concerning both the beginning and termination of actions on the basis of collective self-defence, all rules obligatory for individual self-defence operate.
In the document accepted by the General Assembly of the United Nations on December 12th, 1973 [ resolution 3103 (XXVIII)], it is stated to be true that “the struggle of the people who are under both colonial and foreign domination and the control of racist regimes, for realisation of the right to self-determination and independence, is lawful, and completely corresponds to international law principles” (item 1).
V.Chernichenko notes that the victim state has the right to use armed force in self-defence, but stipulates that it should be individual self-defence which provides a lawful application of force, and the main task, along with rejection of the armed invasion, should be the prevention of any escalation in armed conflict. Protective actions include the armed response of the state and the people, as a reaction by the victim state to the illegal application of armed force by the aggressor, i.e. one of the most dangerous methods of breaking the principle of the non-use of force. If the actions of an aggressor have the characteristics of a confrontation and occur in the territory of the victim state, any actions of the latter for the purpose of suppression of this infringement, proportional to its scale and intensity, are justified. According to article 51 of the Charter of the United Nations, self-protective actions should proceed only till the moment of acceptance by the Security Council of the measures necessary to end the heinous crime and restore international peace and safety.
As the above material shows, the international community possesses a sufficient arsenal of rules of law, and precedents for their decisions, in the field of problems to be considered. The question is only why till now have these norms not been applied to Abkhazia?
The United Nations declare that all people and states, irrespective of their sizes of territory, population or level of development, are in an equal position (which it is impossible to say about those states which are not members of the United Nations). Tens of dwarfish, so-called ministates, as members of the United Nations, have sovereign rights on a level with those of China with its milliard population, or such giants as the USA, India and Russia, bringing their contribution to a common cause. Along with these there are states, in particular Abkhazia, whose equality with others even similar or smaller in population and in size of territory, does not, according to the world community organisations, grant the right not only to reception, but even to restoration of sovereignty. Thus the United Nations, declaring its position about the equality of all countries in respect of their sovereignty, distinguishes from the general list those who are less equal than others. A very strange approach to the definition of equality between the states is thus taken. It is supposed that only members of the United Nations can be subjects of the law. However, according to Roman law, each state is a legal body (universalitas personaram) and, as a legal body, is a subject of the law and should be recognised by the law (lex generalis).
Concerning interstate relations between Abkhazia and Georgia throughout the long period of their mutual coexistence, numerous infringements of international law occurred which seriously abused the rights of Abkhazians as a people and as a nation. Subjects of the law have the official opportunity to undertake legal actions which become legal facts when they are directed towards the conclusion, change or termination of legal relations. In particular, this allows Abkhazia to revise all earlier concluded interstate resolutions and agreements with Georgia, in connection with newly arisen circumstances. It grants Abkhazia the right to look at the problem from the point of view of humanitarian international law and to protect the people from such offences by Georgia as genocide, military expansion, annexation, chauvinism and extremism.
As international law is the special legal system regulating the relations between its subjects by means of legal norms, apparently Abkhazia, as a country possessing all the necessary attributes defining its sovereignty, should be recognised as a subject of this law. However, as a result of the information war intensively used against it, and introduced by Georgia to mislead the international community (facta illicita), the status of Abkhazia as a sovereign state de jure and de facto is not defined to this day. In essence, Georgia, in infringement of all moral rules and human laws, has imposed a political, military and economic blockade against the Abkhazian people.
This is a conflict based upon the parity of international and national laws. In the actions of Abkhazia there are no contradictions with any of the concepts of mutual compatibility of international and national laws: dualistic theory (Tripel), theory of the primacy of international law over national (Kelzen), theory of the primacy of national law over international (Gegel), the doctrine of dialectic dualism accepted in Russia. The dispute is conducted during the possession by one nation ( Georgians) of another (Abkhazians), with assignment of territory of the latter to the former.
V.P.Panov considers the principles of international law, among the main points of which is the protection of human rights, people and nations, and following from this is the self-determination of people and nations. These principles are completely broken by Georgia in relation to Abkhazia. When Georgia unilaterally found it possible to become a “self-proclaimed” independent sovereign state ( having thus committed perjury by breaking their oath - after all, at some time or other all kingdoms and princedoms making modern Georgia had sworn “eternal fidelity to Russia”), for Abkhazia, despite its similar rights in this matter, Georgia made no such claim. Despite the principles of the United Nations and the laws of the USSR, to which both states submitted and should be guided by, Georgia not only does not recognise the rights of Abkhazia, but by means of armed forces, and with the support of some members of the United Nations, tries to force Abkhazia to refuse claims on the restoration of its own sovereignty de jure and de facto which it possessed to the full during different periods of history.
Simultaneously Georgia breaks the main principle of peaceful co-existence by creating and inflating the fire of military extremism in the region, and also breaks the principle of preserving peace and international safety, with all the consequences following from it: infringement of the territorial borders of Abkhazia, application of military force, and also constant threat of its use instead of the peace process for international disputes. The international community, in the name of the United Nations, OSCEs and the Council of Europe, shut their eyes to these infringements of international law, acquitting Georgia from international responsibility for the infringement of one more main principle. Thus, over a period of more than ten years, there is a foul-smelling magnificent bouquet of infringements of international law by Georgia, whose direct accomplices are the world community organisations.
The question is whether the basic rights of sovereignty exist for Abkhazia, according to the norms of international law? Based on V.P.Panov's analysis, it is possible to make the conclusion that Abkhazia in its basic form can be considered as a sovereign subject of international law, and is in the full sense a state with all its prominent features, which owing to its circumstances is continuing to struggle for the preservation of its independence. Therefore it is of little value as to whether this state is a member of the United Nations or not. Sovereignty de jure is defined only by statehood with all its features, and a demand for sovereignty carries only the character of a claim.
This concerns the question of state recognition, in particular of Abkhazia, as a subject of international law. Abkhazia undoubtedly has the right to be the recipient of a recognition in international law, as it is a full state with a legitimate government, and as it is quite possible to see, a recognition in international law has been granted to weaker subjects. As for the recognition theory, Abkhazia according to the declarative theory is recognised as a subject of the law, which is confirmed by the International non-governmental organisation the Commonwealth Lawyers for Cooperation in АТR, in particular.
Shamba T., Neproshin А. Abkhazia: Legal basis of statehood and sovereignty. М: Open Company "In-Oktavo", 2005, 240 pages.
Абхазы - (самоназвание апсуа) автохтонное население Кавказа.
Абхазия (краткая историческая справка).
Исторические лица Абхазии (биографический справочник).
Редактор Вячеслав Румянцев
При цитировании всегда ставьте ссылку