Russia's Recognition of the Independence of Abkhazia and South Ossetia

2.2. The Principle of Self-Determination in International Law
2.2.1. Sources of International Law

International law is an important element of the topic of this research therefore I will briefly dwell on the major characteristics of international law. US Foreign Relations Law very well describes what international law is about. International law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.2 States have evolved two principal methods for creating legally binding rules: treaties and custom.3 Treaties are legal acts binding on the contracting parties. Custom is “evidence of general practice accepted as law”4 (opinio juris) and this practice is required by social, economic or political exigencies (opinio necessitatis).5 The main feature of a custom is that it is not a deliberate law-making process, but rather the intent of states to bring about legal standards of behaviour.6 Customary international law results from the general and consistent practice of states and it is followed by them from a sense of legal obligation. International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted. General principles, common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.7

International law in contrast to municipal law did not have a hierarchy of sources of law and of legal rules produced from these sources. Understandably, states did not want to limit their sovereignty in concluding international treaties and there was no supranational body which would decide on the legality of a treaty or custom. This changed in the 1960s with the introduction of peremptory norms. States decided that certain norms governing relations between states should be given higher rank than ordinary rules deriving from treaties and custom.8 Although the hierarchy between the law-making processes was not established, a cluster of general rules have been upgraded to special status. Peremptory norms were defined in the Vienna Convention on the Law of Treaties of 1969, which was drafted to codify and further develop international law:

“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.9

The existence of peremptory norms depends ultimately on the consent of on the one hand influential and on the other hand an absolute majority of states. “It is difficult for a state, whether or not it is a Great Power to oppose the formation of a peremptory norm: numerous political, diplomatic, or psychological factors dissuade states from assuming a hostile attitude towards emerging values which most other states consider fundamental”.10 There are however limitations to its provisions. The states that are not part of the Vienna Convention (currently 113 states are members) may not request the annulment of a treaty that violates peremptory norms. To invoke the norm a state should have acceded to the Convention and be a part of the multilateral treaty that it wishes to contest. These limitations are somewhat mitigated by the development of customary rules on peremptory norms, which also hinder states from concluding derogatory treaties. So, the main objective of the creation of peremptory norms was the idea that states may not derogate from a certain cluster of legal principles and to ensure that the treaties and customary law which are contrary to them are null and void.11

2.2.2. Historical Background

The origin of the principle of self-determination can be traced back to the second half of the 18th century. The United States declaration of independence in 1776 and the French Revolution of 1789 challenged the notion that the fate of the people and the territories that these people populated could be decided solely by the will of the monarch. The establishment of republics in these two states meant that governments should derive their legitimacy from the people and thus should be responsible to the people. This echoed John Locke’s then century-old assertion that political sovereignty lies in the people.12 The initial meaning of self-determination was that of enjoying a popular sovereignty and representative government and it was anchored this way in western European/American understanding. The first use of this principle in order to acquire lands based on the will of the people could be attributed to the French, who annexed Alsace, Avignon, Belgium and the Palatinate in the early years of the revolution after plebiscites were held and the regions and people voted for unification with France.13

The development of nationalism in the 19th century resulted in further development of the principle of self-determination, albeit in a different form. It brought the national awakening of smaller nations which were parts of multi-ethnic empires such as those of the German, Austro-Hungarian, Russian and Ottoman Empires. As these empires conducted assimilating and nationalist policies, the people distinct from the titular nation started to demand greater self-rule or even independence. Thus, the principle of self-determination acquired an “ethnic” character. Since, geographically, all these multi-ethnic empires were located in Central and Eastern Europe, self-determination in this part of Europe gained a somewhat different meaning than in the Western part of the continent. In this context, self-determination became a driving force for autonomy for ethnically different regions or ultimately their independence.

So, by the outbreak of the World War I, western Europeans saw self-determination as a notion for people to freely choose their representative government, whereas in central and eastern Europe self-determination was seen as a tool for achieving ethnic or national self-government. It was at this point in history when self-determination was pushed onto the international agenda largely thanks to two influential figures—Lenin and Wilson.

Socialist movements in Europe were the first ardent supporters of the principle of self-determination. As early as 1896 the Fourth Congress of the Socialist International in London—which included representatives of social-democratic and labour parties from all over Europe -adopted the following resolution. It read:

“This Congress declares that it stands for the full right of all nations to self-determination and expresses its sympathy for the workers of every country now suffering under the yoke of military, national or other absolutism. This Congress calls upon the workers of all these countries to join the ranks of the class-conscious workers of the whole world in order jointly to fight for the defeat of international capitalism and for the achievement of the aims of international Social-Democracy.”14

Russian Social-Democrats saw self-determination of nations as a temporary measure in the run-up to a global proletarian revolution. Its importance is highlighted in the works of Lenin and Stalin in the 1910s. Lenin argued that the goal of socialism is not only the destruction of the division of mankind into small states and national distinctions, not only the rapprochement of nations, but their merger.15 “ Mankind can achieve the annihilation of classes only after a transitional period of dictatorship of the oppressed class. Similarly, the inevitable unification of all nations could only happen only after a transitional period of complete liberation of all oppressed nations, i.e. freedom of secession”.16 Therefore, the proletariat of the oppressing state should fight for the liberation of colonies and the oppressed nations and for the right of self-determination. Otherwise, the international character of the proletariat would remain an empty word. Lenin gave an explicit definition of what he meant under self-determination by saying that it is the exclusive right of political independence from the oppressing state.17 Stalin, proposed several modes under which nations could develop—a nation has the right to autonomy, to establish federal arrangements with other nations and to secede completely. Stalin also argued that only the nations themselves have the right to determine their own fate and no one else has the right to interfere forcefully in the life of a nation, destroy its schools and other facilities, break its morals and traditions, oppress the language and cut its rights.18 Stalin echoed Lenin in outlining why self-determination of nations is essential for socialism. “By fighting for self-determination of nations, social-democracy aims at terminating the policy of oppression of nations, making oppression impossible and thus undermine the rise of a nation, numb it, minimize it. This is how the policy of the proletariat differs from the policy of bourgeoisie which tries to continue and encourage the national movement”.19 Stalin later argued that when the right moment came the Communist party policy tied self-determination of nations to the fate of the socialist revolution.20 The Bolsheviks started to carry out this policy after the revolution, when several constituent parts of the Russian Empire such as Poland, Finland, the Baltic and Caucasus states were allowed independence, although this could not be attributed to the self-determination policy only, but also to the relative weakness of the revolutionary state. Later, most of them were brought back into the communist empire in the form of autonomies.

The principle of self-determination received instrumental support also from the other side of the Atlantic Ocean. US President Wilson unlike the Bolsheviks pursued completely different goals. Wilson’s self-determination was rooted in the western European understanding of the principle. Wilson declared that the United States entered the war “to fight for liberty, the self-government and the undictated development of all peoples”.21 After the US entry into the war, the President started to plan for the post-war settlement and self-determination played an important role in his peace plan. In his address to the US Congress in January 1918, which came to be known as the famous fourteen points, Wilson inter alia stated:

“A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined”.22

Thus, the interests of the population were put on an equal footing with the interests of the government. Furthermore, nations, part of the Austro-Hungarian and Ottoman Empires were promised the right of autonomous development and Poland independent statehood. The fourteen points were followed by another Wilson address to the Congress a month later, in which he pointed at the indispensability of self-determination. “Peoples may now be dominated and governed only by their own consent. Self-determination is not a mere phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their peril”.23 This address also included four main principles on which peace should be established, out of which three dealt with territorial self-determination. He upheld the notion of popular sovereignty by saying that “peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game”24 and that “every territorial settlement involved in this war must be made in the interest and for the benefit of the populations concerned, and not as a part of any mere adjustment or compromise of claims amongst rival states”.25 The fourth principle read that “well-defined national aspirations shall be accorded the utmost satisfaction”.26 Clearly, in the course of war, Wilson’s understanding of self-determination changed and embraced also a nationality notion of the principle. By the time of the Peace Conference, Wilson had accepted that all nationalities were entitled to self-determination.27 It must be noted that when championing the self-determination clause Wilson looked at the situation a bit naively, not even aware of the number of nationalities that would long for legitimization of the principle.28 He also failed to consider that nations could be divided by territory.

Wilson’s wish to include a self-determination clause into the Covenant of the League of Nations never materialized. It found strong opposition not only from other Great Powers but from his own compatriots. His Secretary of State Lansing feared that it would be the basis for impossible demands and create troubles in many lands.29 Thus, the article on self-determination was redrafted many times and then all references to self-determination were deleted altogether, leaving the way for respect of territorial integrity of the League of Nations’ members.30

Contrary to Wilson’s vision, the principle of self-determination did not feature in peace treaties concluded after WW I either. Here, the victorious powers redistributed territories without paying attention to the will of the people concerned. With a few exceptions (e.g. Silesia), no plebiscites or referenda were held to determine the popular wish for rearrangement of territories.31 They did not even insist that the new states which emerged out of the defeated empires upheld the principle of representative government. The only field related to self-determination which was included in international treaties was that of minority protection.32 A detailed analysis of the state of affairs is provided in the Aaland Islands case, where two expert commissions addressed the question of self-determination and possible secession of Aalanders from Finland in 1920-21. The first Commission of Rapporteurs stressed that:

“Although the principle of self-determination of peoples plays an important part in modern political thought, especially since the Great War, it must be pointed out that there is no mention of it in the Covenant of the League of Nations. The recognition of this principle in a certain number of international treaties cannot be considered as sufficient to put it upon the same footing as a positive rule of the Law of Nations”.33

This emphasis demonstrated that self-determination failed to be a legal principle and remained for the time being only a political one.

Even though much hope was vested in self-determination and it was met with great fanfare when declared by Wilson, it never made it to the text of the international legal body created after WW I. A weak Bolshevik government struggling for its own recognition also could not contribute to the development of self-determination into a legal principle. As for application, self-determination was used to dismember the defeated states at the peace conference, but the victorious powers, wary of its possible dangers for territorial integrity did not have any interest in anchoring this right in the Covenant.

2.2.3. Self-determination in International Law

The second attempt at elevating self-determination to an international legal norm proved to be successful. Again, it was at the negotiations on the post-war settlement, this time WW II and the process of elaboration of the United Nations Charter, during which this norm was put on the agenda again. Politically strengthened, the Soviet Union this time insisted on the proclamation of the right to self-determination at the United Nations Conference on International Organisation held in San Francisco in 1945.34 The Soviets proposed to add the principle of self-determination of people as the basis for friendly relations among nations in Article 1 of the UN Charter.35 This proposal was initially supported by several non-western states and later also by the western states. However, there was fierce opposition to the Soviet proposal to include self-determination as a tool for “speedy achievement of full state independence” fearing that it would cause dismemberment of states and encouragement of secession.36 This fear was shared by colonial as well as non-colonial powers.37 The Soviet explanation of the aim of self-determination given by Foreign Minister Molotov reconfirmed the Bolshevik policy of freedom for all dependent nations. “We must first of all see to it that dependent countries are enabled as soon as possible to take the path of national independence”—he said.38

As a result of negotiations self-determination was inserted in Article 1 and Article 55 of the UN Charter. Article 1 set out the purposes of the UN. The second paragraph says that one of the purposes is: “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”39. Article 55 is about economic and social cooperation and reads as follows:

“With a view to the creation of conditions of stability and well-being necessary for peaceful and friendly relations among the nations, based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote higher standards of living, full employment, and conditions of economic and social progress and development, solutions of international, economic, social, health and related problems, and international cultural, educational cooperation and universal respect for the observance of human rights and fundamental freedoms for all without distinction of race, sex, language, or religion”.40

Ironically, self-determination is not mentioned in chapters XI, XII and XIII, which deal with non-self-governing and trust territories to which the self-determination should have applied in the first place. Although the Soviet Union proposed to include reference to self-determination in the above chapters, the UK and France opposed and agreed only to implicit formulation, which says that the objectives of the trusteeship are in accordance with the purposes of the UN Charter.41

It is visible from the text that the Charter fails to define what is meant under the term of self-determination of peoples and how can it be invoked. Self-determination is mentioned explicitly in articles which are of general purpose and do not cover self-determination issues as such. It is not mentioned in chapters, where exactly this right could have been invoked. Both times it is mentioned in the context of developing friendly relations among nations and in conjunction with the principle of equal rights. The UN Charter is a good demonstration of the careful approach taken by western states back then in regard to the explicit proclamation of the right. Both the UK and France were major colonial powers and they feared that the explicit formulation of the right to self-determination in the relevant chapters would lead to destabilization in the colonies and trust territories and would encourage the independence movements. On the other hand, the USSR supported wholeheartedly the full implementation of the principle in order to be seen as the liberator of the oppressed world and undermine the political stability of the western states. For the Soviet leadership implementation of this principle did not mean exercise of this right by its own constituent union republics42, although the Soviet constitution of 1936 recognised the right of union republics to secede from the USSR. Similarly, the constitution of the Russian Federation of 1993 recognises the right of self-determination, but excludes exercise of this right outside of the Federation.

Notwithstanding the lack of clarity on how, by whom and when the right to self-determination could be invoked within the Charter, its inclusion in the UN Charter was still an important milestone for acknowledging self-determination as a legal principle and its further evolution.

Another international legal treaty in which self-determination featured was the International Human Rights Covenants. The USSR tried to include self-determination in the 1948 Universal Declaration on Human Rights, but this proposal was rejected.43 Nevertheless, when it was decided to draft two covenants one for civil and political rights and the other for social, economic and cultural rights, the Soviet Union again proposed to include self-determination in both covenants. Despite the usual opposition from the colonial powers it received support from the Socialist camp, as well as Asian, Latin American and African countries. Thus, the General Assembly voted for inclusion of self-determination in the covenants.44

Articles 1 of the Covenant of Civil and Political Rights and the Covenant of Economic, Social and Cultural Rights were formulated in a similar way:

“1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations”.45

The two covenants on human rights were adopted by the UN General Assembly in 1966 and entered into force 10 years later when a minimum of 35 states acceded to the Covenants. Presently, they have almost universal character with only a couple of dozen states still not part of it. Although the Covenants further strengthened the position of self-determination as a legal principle, it raised a few questions. A number of countries supported a restricted interpretation of self-determination. India, for example, stated that self-determination in these articles apply only to the people under foreign domination and not sovereign or independent states.46 However, analysis of the language of the article 1 shows that this clause is not restricted to colonial peoples, by saying that all peoples have the right to freely determine their political status and choose its own form of development. The Soviet interpretation of the term people was very broad. According to leading Soviet legal scholar of the time Starushenko:

“The subject of the right of self-determination is people, nations and ethnic groups, peoples composed of different national groups that live in a defined territory, have historical, cultural, language and religious commonalities or are united for the objective that they want to achieve with the help of self-determination”.47

The language of the Covenants also suggests that this right is permanent. Another important clause is that of free disposal of natural wealth and resources—or economic self-determination. And finally, the article gave the clear right to dependent nations to self-determination.

This treaty law however was not sufficient as it did not explicitly regulate self-determination. Therefore, the majority of states opted for the development of general standards that could be enshrined in general assembly resolutions that would gradually turn into legally binding norms—customary law.48 In this way the opposition of the western countries could also be overcome. The most important GA resolutions which regulate self-determination were adopted in the period when the decolonization process reached its height.

On December 14, 1960 the General Assembly adopted Resolution 1514 (XV) “The declaration of the granting of Independence to Colonial Countries and Peoples”. This resolution is the most important document connecting self-determination with decolonization. The resolution was initiated again by the Soviet Union and presented by a group of 43 Asian and African nations. Out of 89 countries, 80 countries voted in favour, 9 (the USA, the UK, France, Australia, Belgium Portugal, Spain, South Africa, the Dominican Republic) abstained and not a single country voted against.49 The resolution explicitly stated that the final goal of self-determination for colonial peoples was independence.

“subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights…..(A)ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development…. (I)mmediate steps shall be taken, in Trust and Non-Self-Governing Territories, or all other territories which have not yet attained independence to transfer all powers to the peoples of those territories without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed and colour, in order to enable them to enjoy complete independence and freedom”.50

Resolution 1514 included an important safeguard clause. Paragraph 6 stated that “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”.51 This clause was intended to safeguard the territorial integrity of newly emerged states and avoid further dismemberment of former colonial territories. It represented materialization of the principle of uti possidetis juris, which originated from the 19th century, when the Spanish Crown lost effective control over its territories in Latin America. Uti possidetis juris was designed to protect from external force the sovereignty and territorial integrity of entities that attained de-facto independence. The principle meant that the de-facto states agreed to the external boundaries that they inherited from the colonial entities. This principle gradually developed into a general principle of law and as the ICJ stated in the case Concerning the Frontier Dispute between Burkina-Faso and Mali:

“[uti possidetis juris] is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power”.52

Nevertheless, uti possidetis juris had not been applied consistently as the examples of Ruanda-Urundi, the northern Cameroons, Island of Mayotte and Gilbert and Ellice Islands have demonstrated. In each of these cases the territorial integrity of the former colonial entities was not preserved and the territories either were partitioned (Ruanda-Urundi, Gilbert and Ellice Islands), or were incorporated into another state (Northern Cameroons into Nigeria), or remained with the colonial power (Mayotte with France). It must be emphasized however that the decisions on the entities’ status were taken by the populations themselves. This would not have caused problems had the Comoros Islands agreed to the Mayotte separation. Mayotte case raised the issue whether the will of the whole population of the colonial entity was decisive for the status or part of the population could also be consulted. In other words, it raised the question of partition of the word “self” into several meanings in self-determination. No wonder that this ambiguity was used by the Russian top diplomats when justifying the annexation of Crimea and referring to the Mayotte referendum as a precedent in international practice.53 They, however, ignored the fact that the splitting of Mayotte from Comoros occurred at the time of decolonization and not 23 years afterwards.

Resolution 1514 was followed the next day with Resolution 1541 (XV) on “Principles which should guide the Members in determining whether or not an obligation exists to transmit the information called for in article 73(e) of the Charter of the United Nations”. The resolution inter alia gave two other options for the full-measure of self-government except independence—Free Association with an independent state or integration with an independent state. In both cases, the decision should have been made through “the responsible choice of the people under informed and democratic processes”.54

Several GA resolutions in the 1960s were adopted with the aim of assisting colonial countries in their quest for self-determination and also discouraging states from hindering the self-determination of the colonial entities. Resolution 2105 granted “the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-determination”55, Resolution 2131 stated that the right of self-determination should be exercised “without any foreign pressure”56, Resolution 2160 declared any forcible action depriving people under foreign domination of their right to self-determination and independence illegal.57 These resolutions were put forward by the Communist states or the third world countries, but opposed by the western states. Therefore, the resolutions represented the views of the USSR and its satellites as well as the developing world.58