Monday, August 25, 2008
OSSETIAN INDEPENDENCE
Russia's parliament unanimously approved on Monday resolutions calling for the recognition of two rebel regions of Georgia as independent states, a move likely to worsen already strained relations with the West.
If it is unanimous then that is pretty much a done deal. No Russian leader could turn it down purely on the grounds that NATO doesn't like it. In which case we can expect to see more NATO huffing & puffing. The interesting question will be how many countries, particularly China & India, join in recognising Ossetia & Abkhazia?
So is this a breach of international law or is it legal or is it a grey area & if so how grey.
Well it is certainly a result of an incursion into territory Georgia claimed. On the other hand Georgia has never ruled it. The relevant international law is the Montevideo Convention of 1933, which requires
Russia's defence to accusations of breaching article 11 are that (1) they had an internationally binding peacekeeping agreement with Georgia requiring them to stop a Georgian attack & (2) the UN Charter which supersedes this has a specific requirement to act to prevent genocide, which was clearly what the Georgian attack was achieving. Even so, & even bearing in mind that they are not acquiring territory, it is the local inhabitants doing so, they are in a grey area here. However it is not black & white.
However under the rules South Ossetia does possess all the requirements for statehood. The only other alleged requirement is by those who support the Constitutive theory of statehood - that it is only a sovereign state when it is recognised as such. However "The constitutive theory is merely a theoretical construct as it has neither been codified by treaty nor widely recognized in international law.
Most modern authorities reject the constitutive theory of statehood, citing among other reasons that it leads to subjectivity in the notion of the state. Another problem is that recognition, even majority recognition, is not binding on third states in international law." It also begs the question of who does the recognising. The claim that Milosevic was a war criminal was based largely on the assumption that EU recognition of the successor states made it so, which, even if legitimate did not make it binding on Milosevic's Yugoslavia. On the other hand we have Turkey's recognition of North Cyprus & South Africa's recognition of the Kwa-Zulu etc as independent states not counting for much.
That suggests that whatever other bits of law say the big countries have more rights than the small ones. What a surprise.
That being the case I think the Russians would be well advised to get a lot of other countries to recognise Ossetia too. Presumably their co-members of the Shanghai Co-Operation Pact.. This may be the first real test of its strength.
Of course the same western powers objecting to Russia doing this are the ones who supported the "Independence of Croatia, Bosnia & Kosovo despite having signed the Helsinki Treaty preventing them taking an action "against the territorial integrity or unity" of Yugoslavia. The Montevideo Treaty is also unequivocal on the basic rule on which NATO supported independence ie that the federal states making up Yugoslavia were the sovereign constituents. NATO & the EU are quite clearly lying on that point
The bit about governance was put in as a reaction to the American "recognition" of Panama immediately before they seized it from Colombia & then "negotiated" the sale of the Canal Zone with newly installed government. Since it led to the creation of the Panama Canal that can be justified on utilitarian terms but even Americans are shamefaced about it.
On the pther hand we have Biafra which did, for a time have governance of all its territory & limited international recognition but was exterminated anyway.
Certainly by the standards we apply Ossetia & Abkhazia, have a right to separation as does Republika Srpska. Biafra, Bihac & Krajina being, legally, grey areas since they have been destroyed by us.
Russia needs to get some other countries to recognise South Ossetia. The world needs to get a clear & consistent set of rules. The NATO countries need to get some respect for the laws we do have. Good laws make for good neighbours.
If it is unanimous then that is pretty much a done deal. No Russian leader could turn it down purely on the grounds that NATO doesn't like it. In which case we can expect to see more NATO huffing & puffing. The interesting question will be how many countries, particularly China & India, join in recognising Ossetia & Abkhazia?
So is this a breach of international law or is it legal or is it a grey area & if so how grey.
Well it is certainly a result of an incursion into territory Georgia claimed. On the other hand Georgia has never ruled it. The relevant international law is the Montevideo Convention of 1933, which requires
Article 1 - The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.but on the other hand that
The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.But that
Article 11 - The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily
Russia's defence to accusations of breaching article 11 are that (1) they had an internationally binding peacekeeping agreement with Georgia requiring them to stop a Georgian attack & (2) the UN Charter which supersedes this has a specific requirement to act to prevent genocide, which was clearly what the Georgian attack was achieving. Even so, & even bearing in mind that they are not acquiring territory, it is the local inhabitants doing so, they are in a grey area here. However it is not black & white.
However under the rules South Ossetia does possess all the requirements for statehood. The only other alleged requirement is by those who support the Constitutive theory of statehood - that it is only a sovereign state when it is recognised as such. However "The constitutive theory is merely a theoretical construct as it has neither been codified by treaty nor widely recognized in international law.
Most modern authorities reject the constitutive theory of statehood, citing among other reasons that it leads to subjectivity in the notion of the state. Another problem is that recognition, even majority recognition, is not binding on third states in international law." It also begs the question of who does the recognising. The claim that Milosevic was a war criminal was based largely on the assumption that EU recognition of the successor states made it so, which, even if legitimate did not make it binding on Milosevic's Yugoslavia. On the other hand we have Turkey's recognition of North Cyprus & South Africa's recognition of the Kwa-Zulu etc as independent states not counting for much.
That suggests that whatever other bits of law say the big countries have more rights than the small ones. What a surprise.
That being the case I think the Russians would be well advised to get a lot of other countries to recognise Ossetia too. Presumably their co-members of the Shanghai Co-Operation Pact.. This may be the first real test of its strength.
Of course the same western powers objecting to Russia doing this are the ones who supported the "Independence of Croatia, Bosnia & Kosovo despite having signed the Helsinki Treaty preventing them taking an action "against the territorial integrity or unity" of Yugoslavia. The Montevideo Treaty is also unequivocal on the basic rule on which NATO supported independence ie that the federal states making up Yugoslavia were the sovereign constituents. NATO & the EU are quite clearly lying on that point
Article 2 - The federal state shall constitute a sole person in the eyes of international law.The right of Croatia & Bosnia to independence, within the boundaries they claimed, is also illegitimate under article one because they didn't have government over all the territory. Republica Srpska, Krajina & indeed Bihac (the moderate anti-al Quaeda Moslem region of Bosnia which declared separate independence & which we then destroyed) all have a much stronger claim since they were actually governing the territory they claimed. The question of Kosovo rather depends on whether it really has become independent or whether it is still, in practice being run by NATO.
The bit about governance was put in as a reaction to the American "recognition" of Panama immediately before they seized it from Colombia & then "negotiated" the sale of the Canal Zone with newly installed government. Since it led to the creation of the Panama Canal that can be justified on utilitarian terms but even Americans are shamefaced about it.
On the pther hand we have Biafra which did, for a time have governance of all its territory & limited international recognition but was exterminated anyway.
Certainly by the standards we apply Ossetia & Abkhazia, have a right to separation as does Republika Srpska. Biafra, Bihac & Krajina being, legally, grey areas since they have been destroyed by us.
Russia needs to get some other countries to recognise South Ossetia. The world needs to get a clear & consistent set of rules. The NATO countries need to get some respect for the laws we do have. Good laws make for good neighbours.
