Self-Determination: Between Law and Politics

10 february 2007

Alexander Aksenyonok is Ambassador Extraordinary and Plenipotentiary of the Russian Federation, a veteran diplomat and Arabist who has had assignments to many Arab countries. He served as Ambassador to Algeria and Slovakia, and as Special Envoy to the Balkans. He has a Doctorate in Law.

Resume: Can Kosovo’s imminent independence be seen as a precedent in resolving other internal state conflicts, including in the former Soviet republics? This problem has gone from being a subject of academic dispute to an explosive element of Realpolitik.

The fallout from the geopolitical upheavals that shook the world at the end of the past century has yet to be fully appreciated, but their impact on world politics is becoming increasingly pronounced. Today, there is a growing gap between the generally recognized rules of international law and the new realities. The erosion of hitherto inviolable principles compels a review of the balance that has evolved between two tenets of international law – territorial integrity and the right to national self-determination – that are often in conflict with each other. How do these concepts apply in practice? What are the historical precedents? And finally, what are the objective standards of judgment needed for applying them?

Dramatic events, such as the chaotic disintegration of the Soviet Union, the civilized “divorce” between the Czechs and Slovaks, and the bloody breakup of Yugoslavia, amongst others, effectively repudiated the inviolability of postwar borders in Europe, which in 1975 was solemnly proclaimed in Helsinki. Furthermore, international recognition of the newly formed states legitimized the changes, regardless of whether they had occurred peacefully or through the use of force.

The violation of territorial integrity in Europe – regardless of the causes of the breakups – gave ethnic minorities within multi-ethnic states a powerful incentive for asserting their independence (including extreme forms of ethnic separatism). Interethnic tension can also be viewed as a byproduct of democratic transformations, for example, the decentralization of state governance, especially in Russia and East European countries.

To date, the strongest incentive for reviewing the concepts of “territorial integrity” and “national self-determination” are the dramatic turn of events that occurred in Kosovo in the late 1990s – and most importantly, NATO’s one-sided reaction to the situation. There is little doubt that this province of Serbia, with a predominantly Albanian population, is close to acquiring independence from the hands of the international community.

The primary question now is: Can Kosovo’s imminent independence be seen as a precedent in resolving other internal state conflicts, including in the former Soviet republics, or was it some sort of an exception in international practice?

The West replies categorically that it cannot be viewed as a new precedent, while Russia believes it can. Meanwhile, this problem has gone from being a subject of academic dispute to an explosive element of realpolitik. This applies above all to the ongoing conflicts over the so-called unrecognized states in the post-Soviet space – Transdnestr, Nagorno-Karabakh, Abkhazia, and South Ossetia.

The search for universal approaches to resolving complicated interethnic problems could be facilitated by a comparative analysis of Kosovo in the former Yugoslavia with Abkhazia and South Ossetia in the post-Soviet area. In undertaking this analysis, the author has advisedly put aside the historical aspects of these issues, since each nation and each ethnic group has its own “truth,” and it is all but impossible to resolve such conflicts by invoking the past.

KOSOVO’S PATH TO INDEPENDENCE

As a part of the former Socialist Federal Republic of Yugoslavia, Kosovo had the status of an autonomous region; later it was recognized as an autonomous province. Under the 1974 Constitution, Kosovo was empowered to elect its own parliament, form its own government and Constitutional Court, and it also acquired full cultural and even economic autonomy. In other words, already in the 1970s-1980s, the scope of the province’s regional authority was approaching the criteria that were later enshrined in the Council of Europe’s Framework Convention for the Protection of National Minorities.

Kosovo did not become a hotbed of interethnic and interfaith tension until the late 1980s, when, on the initiative of the country’s president, Slobodan Milosevic, the central government in Belgrade started “rectifying the mistakes” of decentralization. The resistance of the Albanian majority was originally of a political and civil nature, but gradually it transformed into an armed struggle.

Following the abolition of the province’s extended autonomy, power was turned over to regional bosses appointed by Belgrade who relied on ethnic Serbian law enforcement and security structures. The Albanian population boycotted the new governing authorities, creating their own parallel administrative, educational, health, and social security agencies. In July 1990, a constituent assembly of the self-proclaimed parliament in Pristina adopted a declaration of independence and then the Constitution of the Republic of Kosovo. Alongside the consolidation of the political structures of the unrecognized state, the military organization of Albanian militants, known as the Kosovo Liberation Army (KLA), began to gather strength.

The next stage in the evolution of the Kosovo situation can be described as an unstable balance in the armed confrontation that by now had already begun. In response to mounting terrorist attacks against official structures, as well as the Serbian minority population in Kosovo, Belgrade began to build up its police presence there. When it became obvious that police forces were ineffective for dealing with the situation, army units were brought into Kosovo.

The international community became directly involved in the resolution of this internal Yugoslav problem following major clashes between regular troops and KLA militants in February 1998 in the Drenica area, which inflicted a heavy death toll, including among civilians. Large-scale military actions continued for several months, placing the province on the verge of a humanitarian catastrophe. Responsibility for the crisis was laid exclusively at Belgrade’s door, although in the majority of cases the Serbian side had only responded, albeit not always proportionately, to the armed provocations of the Albanian militants. Furthermore, it has never been proven that the Serbians were the ones who provoked the displacement of many refugees at that time. Subsequent conflicts involving the participation of illegal armed groups in Chechnya, for example, or more recently in Lebanon, show that terrorist organizations regularly use civilians as human shields, counting on the reaction of the international community.

Whatever the case, it is now all but senseless to apportion blame for the tragic events of 1998-99. In making a comparative analysis of the Kosovo precedent and the Georgian-Abkhazian or Georgian-Ossetian conflicts, there is another factor of greater importance: to objectively understand the nature of these conflicts and the role of extraneous factors.

The main goal of putting the Kosovo problem on the international agenda was to prevent a humanitarian catastrophe. But insofar as the West a priori placed all responsibility for the crisis on the Serbs and personally on Slobodan Milosevic, this became the keynote of all discussions at the OSCE, the Kosovo Contact Group, and the international conference in Rambouillet (France) on the political settlement in Kosovo (late 1998-early 1999). For its part, the Serbian leadership underestimated the seriousness of the situation, displaying shortsightedness during the negotiations. As a result, more subjective conditions evolved, thereby giving the North Atlantic Alliance a formal excuse for armed intervention.

Another specific feature of the Kosovo crisis is that the UN, as an instrument of political settlement, only became involved post factum. In treating the Kosovo case as “unique,” Russia’s Western partners at the Contact Group refer to UN Security Council Resolution 1244 and its violation by Milosevic. Such references were inappropriate at the very least. The UN resolution was adopted on June 10, 1999, that is, more than two months after Yugoslavia had begun being subjected to massive missile and air strikes (the NATO military operation against the Federal Republic of Yugoslavia began on March 24, 1999). The main goal at that specific time was to end the air strikes that had placed one ethnic group, the Serbians, on the verge of a national catastrophe for the sake of “saving” another ethnic group, the Albanian Kosovars.

Resolution 1244 was in fact the price that had to be paid for ending the air strikes. It gave the UN and its Security Council a central role in the settlement process and sanctioned the presence of an international peacekeeping force in Kosovo (KFOR), as well as the deployment of the UN Interim Administration Mission in Kosovo (UNMIK). As a matter of fact, Belgrade was forced to cede a part of its territory and agree to foreign military presence – the NATO-led KFOR.

The UNMIK, defined under the aforementioned UN resolution as the supreme political and administrative authority in Kosovo pending the final definition of its status, has since been consistently pursuing a course toward Kosovo’s maximum isolation from Serbia and the creation of yet another independent state on the territory of the former Yugoslavia. Eduard Kukan, former foreign minister of Slovakia who in 2000-01 frequently visited Kosovo as a special envoy of the UN secretary general, described the situation as follows: “It was amusing to see former militants, who had recently changed their camouflage uniforms for civilian clothes, continue to press for full independence.”

Despite the declarations that a democratic, multiethnic society has been built in Kosovo, the situation for the Serbian minority remains critical. The exodus of non-Albanians has led to the creation of a mono-ethnic Albanian space. The outstanding problems have yet to be settled, which include the return of more than 200,000 non-Albanian refugees and temporarily displaced persons, provision of equal security and freedom of movement for ethnic minorities, and the creation of a genuinely multiethnic environment.

In pushing for independence, the Kosovo Albanians are striving to keep international interest in Kosovo alive by all means (including acts of violence against the Serbs). The aim is to demonstrate that if the “independence scenario” does not materialize, bloody interethnic clashes, as in March 2004, will resume. In this situation, the West is seriously concerned by the unpredictability of its bellicose Albanian protégés, who are more than ready to use force – and not only against the Serbs. That would mean a total collapse of NATO’s policy in the Kosovo conflict with far reaching implications for other hotbeds of tension in the region. This explains the strong pressure that is being exerted on a weakened Serbia, which forwarded a compromise formula for the status of Kosovo: “More than autonomy, less than independence.”

Summing up this retrospective review of the Kosovo case, it is essential to note that the territory’s final status was predetermined by a combination of three internal and external factors:

– demands from the Albanian ethnic minority in Yugoslavia, accompanied by the use of violence, not to mention the use of blackmail against the international community;

– the coincidence of U.S. and EU interests, dictated by the simple considerations of political expediency, in removing Milosevic’s nationalist regime;

– the possibility, without the risk of a global confrontation, to impose that expediency scenario by military-political means amidst a new lineup of forces on the international arena. 

THE CAUCASUSSIMILARITIES, DIFFERENCES

The evolution of the Georgian-Abkhazian and Georgian-Ossetian conflicts, which have led to the formation of two so-called unrecognized states, has a number of similarities with the Kosovo case. Meanwhile, the differences between them only highlight the need for a clear-cut definition of universal principles in resolving such internal state conflicts.

In the late 1980s, unitary states were introduced by brute force in both instances. Smoldering interethnic conflicts flared up with new intensity when the central governments abolished the broad privileges that had been enjoyed by ethnic minorities both in a federal state, Yugoslavia, and in a constituent member state of the Soviet Union, Georgia. In other words, South Ossetia and Abkhazia began to break away at a time when Georgia had not yet become an independent state. It is important to bear this in mind at a time when Georgia continues to insist on its territorial integrity.

In 1989-90, well before the breakup of the USSR, the Supreme Soviet of the Georgian Soviet Socialist Republic (SSR) passed a series of resolutions abolishing the Soviet republic’s 1978 Constitution and restoring the 1918 Constitution of the Georgian Democratic Republic, which ruled out the existence of regional autonomies. In response to that move, in July 1982, Sukhumi declared the abrogation of the Constitution of the Abkhazian Autonomous Republic as part of the Georgian SSR and the restoration of the 1925 Abkhazian Constitution that proclaimed the sovereignty of Abkhazia.

The events in South Ossetia followed a similar scenario, when in late 1989 the Georgian authorities brought police forces into Tskhinvali, while in November 1990 Georgia’s Supreme Soviet abolished the South Ossetian Autonomous Region, which sparked the breakout of hostilities. Against that backdrop, on January 19, 1992, a referendum was held in South Ossetia in which the majority of the population voted for independence and accession to Russia. A few months later, the Supreme Soviet of the South Ossetian Republic adopted an Act on State Sovereignty.

Just as in Kosovo, armed conflicts on the territory of the former Georgian SSR took a heavy toll in human lives and had devastating humanitarian consequences for the Georgian and Abkhazian populations. Of 550,000 citizens of pre-war Abkhazia, 7,000 were killed, with 200,000 to 250,000 fleeing the region, mostly ethnic Georgians. Another parallel with Kosovo is that both conflicts were frozen with the involvement of external forces – in the case of Kosovo, NATO member states – with Russia playing a marginal peacekeeping role; and in the Georgian-Abkhazian conflict, it is Russia that took the main initiative with the West playing a marginal role. Importantly, both sides formally agreed to political settlement mechanisms, which were laid down in an array of international documents.

Over the past seven years, Kosovo has been formally under the jurisdiction of the UN, while UN Security Council Resolution 858 (1993) also applies to the situation in Abkhazia. This resolution established the UN Observer Mission in Georgia (UNOMIG), which is still active. Furthermore, the UN is involved through the special envoy of the UN Secretary General who heads a coordinating council with the participation of the OSCE, Russia, the UK, Germany, France, and the U.S. The collective peacekeeping force (made up predominantly of Russians) deployed in the zone of the Georgian-Abkhazian conflict has a CIS as well as a UNOMIG mandate (under UN Security Council Resolution 1666, March 31, 2006).

As for South Ossetia, here too a quadripartite peace mechanism known as the Joint Peacekeeping Force and the Joint Control Commission (JCC), which was instituted with Russia’s mediation in 1992, is supplemented by the efforts of international organizations. An OSCE mission has been working in Georgia and South Ossetia since December 1992, while EC representatives have been involved in JCC operations in an observer capacity since 1999.

But the main similarity between these scenarios is the political will of the mono-ethnic community (ethnic majority) in Kosovo, Abkhazia and South Ossetia. The referendums sponsored in these regions reaffirmed this will, and far more convincingly than the EU sponsored plebiscite on Montenegro, for example, which the international community recognized.

Statehood on these territories evolved in the same way and within the same timeframe as in all post-Soviet republics. Geopolitically, Abkhazia, for more than 10 years now, has been a de-facto independent state with all the trappings of a state that conforms to democratic standards. It even has its own army and law-enforcement structures. Its economy is self-sufficient and not dependent on Georgia. The people of Abkhazia see themselves as citizens of an independent state, and make their future economic prosperity contingent on the republic’s integration into Russia. At the present stage, recognition of Abkhazia’s independent status is of paramount importance.

The majority of Abkhazians perceive any denial of their right to independence as the “enslavement” of an entire nation “within Stalin-era boundaries.” In a conversation with Thomas de Waal, a Caucasus expert and project coordinator for the Institute of War and Peace Reporting (IWPR) in London, Sergei Bagapsh, the president of the unrecognized Republic of Abkhazia, stressed that Abkhazia has more grounds for acquiring the status of an independent state than Kosovo does because the former was forcibly incorporated into Soviet Georgia. While acknowledging that this argument was not incontestable, de Waal, writing in The Financial Times, admits that he has not met a single person in Abkhazia who envisioned it as ever becoming a part of Georgia.

The strive toward reunification with Russia is especially strong in South Ossetia, which is rather weak economically and populated by people who have relatives in North Ossetia [which is part of Russia – Ed. ]. The South Ossetians see themselves as being forcibly separated from their “blood brothers” due to unfair subjective and objective historical events.

THE POSITION OF “MOTHER COUNTRIES”

For all the similarities between the situations in Kosovo, Abkhazia and South Ossetia as de-facto independent states (UN jurisdiction over Kosovo only formally conceals this status), there remains one rather substantial difference – specifically, the difference between the positions of Serbia and Georgia, i.e., the ‘native people,’ or so-called ‘titular nations.’

The final decision over the status of Kosovo is a serious test for the democratic forces of Serbia that replaced the authoritarian regime of Slobodan Milosevic. The new governing authorities are between a rock and a hard place: to agree to the separation of the historical cradle of Serbian culture and Orthodoxy means courting the danger of being overthrown by a wave of Great Serbian nationalism. On the other hand, to resist outside pressure in granting independence to Kosovo means losing the chance to open negotiations on EU membership – the direction that all other Balkan countries, including former Yugoslav republics, are now moving. Thus, just as in the case of Montenegro’s separation from Serbia, admission to the EU is a good incentive for completing the ‘Balkanization’ process.

Yet, for all the complexity of the situation, the Serbian leadership pursues a fairly sensible, well-balanced line, taking into account the hard legacy of the Milosevic era, as well as the current situation in and around Kosovo. In searching for a compromise solution, it prioritizes high democratic standards in guaranteeing the legitimate rights of Kosovo’s Serbs, protection of Orthodox sacred places, and decentralization of power. These problems have not been resolved, despite the numerous declarations and promises by UN administrators and KFOR command. These issues are now at the top of the agenda amidst ongoing negotiations between the Serbian and Albanian sides with the mediation of a special representative of the UN Secretary General in Vienna.

The negotiating process on Abkhazia and South Ossetia, however, is shaping up quite differently. Tbilisi is standing firm on Georgia’s “territorial integrity,” but within the old Soviet borders, offering the Abkhazians and Ossetians “broad autonomy.” Sukhumi and Tskhinvali have made any political settlement conditional on the international legitimization of their de-facto independence as the logical conclusion of the breakup of the Soviet Union with full guarantees for the rights of ethnic Georgians.

All indications suggest that the chances for arriving at a solution that is acceptable to both sides are remote, while the overall situation continues to worsen. Tbilisi’s line of conduct, always unpredictable and meandering, is becoming utterly destructive under the leadership of Mikhail Saakashvili. There are increasing violations of current agreements and the security regime in the conflict zone; offensive weapons are being constantly built up; peacekeepers are becoming a target of provocation while unjustified demands are being set on them. Finally, bellicose rhetoric is beginning to grow louder. All of this gives the Abkhazians and Ossetians reason to believe that the Georgian leadership has decided on the use of force; to this end it is necessary, above all, to eliminate the existing settlement mechanisms and compromise the Russian peacekeeping mission. The Georgian parliament’s resolution, On Peacekeeping Forces in Conflict Zones, makes it incumbent on the government to implement measures to ensure the earliest possible withdrawal of Russian peacekeepers from Abkhazia and South Ossetia, abrogate the relevant international treaties and structures with their subsequent replacement by a new format, including the deployment of an “international police force.” Meanwhile, the ongoing rapprochement between Georgia and NATO further encourages radical elements within the country’s leadership.

The experience in peacekeeping operations in other parts of the world shows that their successful completion is impossible without each party to the conflict maintaining an atmosphere of trust and refraining from steps that could be misinterpreted. That was the atmosphere in which Eastern Slavonia was reintegrated into Croatia under the auspices of the UN Interim Administration and with the close involvement of Russia, which had taken part in both the military and civilian components of the operation.

Another condition for a successful peacekeeping operation is the voluntary acceptance of an imposed settlement by all parties involved. These operations are known as ‘peace enforcement’ and, as a general rule, involve ‘nation building.’ A case in point is the Dayton Peace Agreements on Bosnia and Herzegovina that brought about the end of the civil war in the former Yugoslavia (1992-1995). The NATO-led multinational force that was deployed there in 1996 had a tough mandate, which included the use of force, and guaranteed the implementation of these agreements. That mandate provided additional leverage to the chief administrator who had been entrusted by the international community with special functions, similar to those of a governor general.

Peacekeeping operations in Abkhazia and South Ossetia are based on a narrower mandate and an international mechanism that does not provide for the imposition or enforcement of specific solutions on any of the parties involved. In both cases, Russia acts only as a facilitator in settling conflicts. The peacekeepers’ mandate is reduced to preventing engagement of forces and maintaining the security regime.

Considering the differences in the scope of mandates and settlement mechanisms, the attacks by the Georgian leadership against Russia, including accusations of obstructing the peace process, point to a pronounced attempt to impose at any price a different format providing for enforcement functions with respect to the “separatists.” At the same time, it is well known that the mandate cannot be changed without the consent of both sides. But neither Abkhazia nor South Ossetia will give such consent, fearing, and not without reason, that the withdrawal of Russian peacekeepers could have disastrous consequences for the civilian population, causing widespread destabilization. The unrecognized republics see the Georgian parliament’s resolution as Tbilisi’s intention to resolve the problem by force.

The current ethnic-territorial conflicts in the South Caucasus are dangerous insofar as they can grow into a permanent hotbed of tension. Georgia, in its striving to have its way no matter what, is presumably acting on the assumption that if the restoration of its territorial integrity is delayed for another few years, this could perpetuate the status quo, which would be subsequently recognized by the international community. There are also internal political considerations involved: it is necessary to bolster the ruling regime, which is going through serious difficulties, with time-tested nationalist arguments. But just as in the Kosovo scenario, external factors play a crucial role in the South Caucasus as well.

The evolution of the situation around the unrecognized states of Abkhazia and South Ossetia reflects the logic of the old “zero sum game,” but in new, non-confrontational conditions. Tbilisi’s defiant, provocative actions with respect to Russian representatives would hardly have been possible without open support or connivance on the part of the United States. If Washington’s policy is really aimed, in defiance of Russia, to steer Georgia toward full NATO membership, even as it turns a blind eye to its failure to meet the established standards and criteria, Tbilisi cannot fail to construe this as carte blanche abilities for a one-sided resolution of the problem of Abkhazia and South Ossetia. This incorrect interpretation of the nature of international support will continue to encourage the Georgian leadership to take ill-considered actions, which is fraught with escalating tensions throughout the region.

As the conflict worsens and the sides toughen their negotiating positions, the Russian Federation as a neighboring state that is deeply involved in the peace process could end up in a rather delicate situation. Because of Russia’s geographic position, the outcome of the conflict in the South Caucasus is probably more critical for it than the outcome of the Kosovo problem is for Europe.

Today, Russia’s political position is based on the recognition of two principles – territorial integrity, with the proviso that in the case of Georgia it is just a “possibility,” not a “politico-legal reality,” and the right to self-determination. The international community fully endorses the last principle. In this way, Moscow indicates that the principle of territorial integrity is not absolute and may not be applied automatically. 

This two-pronged position leaves some room to maneuver. But the field is narrowing more and more, and there is an increasing danger of Russia being held responsible by both sides – Abkhazia and Ossetia on one hand, and Georgia on the other – for freezing the conflict.

The delicacy of the situation is that either outcome – in favor of territorial integrity or in favor of secession – involves both advantages and disadvantages for Moscow. But in neither case are there any absolute advantages.

In the boiling ethnic cauldron in the Caucasus, where everything is closely interconnected and interwoven, the use of force to coerce Abkhazia and South Ossetia to return to Georgia’s fold will imminently create new hotbeds of tension in southern Russia – in North Ossetia, Adygeya, Chechnya, Karachayevo-Cherkessia, and possibly beyond. In such a situation, there is no way Russia can count on Tbilisi’s loyalty. At the same time, responsibility for the fate of ethnic minorities also has a moral dimension for Russia. The Russian state, just like any other state, is obligated to defend the interests of its citizens. Moreover, as is already known, a substantial part of Abkhazia’s and South Ossetia’s population (who were denied the right to a free and democratic expression of their will either in the Soviet Union or later in independent Georgia) are in fact Russian citizens.

To date, nobody has successfully explained to the Abkhazians and Ossetians why the Kosovars and Montenegrins have a right to secede but they do not. All references to the “uniqueness” of the Kosovo case are unconvincing. Furthermore, if Kosovo’s independence is to be formalized de jure, the paradoxes of realpolitik on the ethnic-territorial issue will be too obvious even to non-professional politicians. On the one hand, the United States and Europe, as punishment for Serbia’s uncooperative and “despotic” regime, encouraged separation on its territory, but on the other, the same group of influential states continues to deprive other peoples of the right to secession by supporting the “democratic” Georgian regime, which is amenable to them.

Whatever the case, in the context of post-confrontational politics, the following question on the international agenda is becoming increasingly important: Are there any objective criteria for striking the right balance between the principles of territorial integrity and national self-determination?

Needless to say, the idea of secession for secession’s sake is flawed, and will ultimately lead the world to chaos. However, there are other forms of self-determination, such as, for example, cultural autonomy, federative and confederative designations, ethnic-territorial formations with different degrees of economic independence, and finally, interstate integration with voluntary delegation of part of national sovereignty to the center. But in all of these cases, the crucial conditions are the high degree of trust between a state-forming nation and an ethnic minority, common sense displayed by the central governing authorities, and their ability for guaranteeing a worthy life to their citizens.

Canada and Spain may serve as models for the civilized resolution of ethnic problems. The results of a recent referendum in Quebec, for example, showed that the French-speaking population trusts the historical state in which it lives. In Spain, greater autonomy was handed to Catalonia, which acquired the status of a separate ethnic entity within the country. This shows that self-determination does not necessarily mean the acquisition of state independence.

At the same time, the international community cannot ignore cases when, due to different interethnic problems – historical, psychological, or economic in nature – secession by an ethnic minority is more in harmony with historical reality than is the preservation of its uncertain status as an unrecognized state. The ethnic-territorial conflicts in Kosovo, Abkhazia and South Ossetia all fall into this category. Responsibility for the situation that has evolved is ultimately borne by the central governments that alienated their citizens with their arrogant chauvinistic policies. The main criterion here should be an international consensus on the legitimacy of the secession of ethnic minorities, based on generally recognized democratic and humanitarian standards.

Last updated 10 february 2007, 15:33

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