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Abkhazia
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.
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