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

2.2.6. International Practice

When we exclude the colonial ingredient from self-determination only the notion of popular sovereignty is left. There have been only two cases when the UN sanctioned regimes that prevented equal participation of people in the government. Both of those regimes were racially discriminating against the black majority populations in South Africa and Southern Rhodesia. Starting from 1960 the United Nations regularly condemned South Africa’s apartheid regime, embargoed it and declared null the constitution of South Africa.79 In the case of Southern Rhodesia, the UN Security Council “condemned the unilateral declaration of independence made by a racist minority in Southern Rhodesia”80 and “called upon all states not to recognize this illegal racist minority regime and to refrain from rendering any assistance to this illegal regime”81. Certainly, deprivation of self-determination to South Rhodesian people, as well as racial discrimination against the black population were the reasons for non-recognition of its independence, since Southern Rhodesia was qualified as a non-self-governing territory and was entitled to independence. Its independence was recognized only after the UK regained constitutional authority and let it gain its independence in 1980 under the new name of Zimbabwe.82

What about the self-determination of distinct ethnic or religious groups in sovereign states, which is a particularly complex problem faced by numerous countries all over the globe? As we have seen international law does not mention the right of ethnic or religious minorities to self-determination. Internal self-determination of ethnic minorities could be achieved through various levels of autonomous arrangements within the sovereign state, with full access to participation in the government. External self-determination in this context is equal to secession. States have been reluctant to recognize that secession derives from the right to self-determination. Before 2008, there was only one case when secession was recognized by the international community—Bangladesh. In all other cases, in which the seceding entity had established a de-facto state, the international community opposed it. That territorial integrity of a sovereign state is immune to claims of self-determination by ethnic groups—was the view unanimously shared by western, socialist and third world states. Both treaty law and customary law clearly state the inviolability of borders of sovereign states and their territorial integrity. Therefore, self-determination in independent states is limited only to its internal character, unless there are grave violations of the human rights of a particular racial or ethnic group.

2.2.7. Conclusion

The principle of self-determination has passed a long way of evolution from a political idea into a legal norm. Today it is a principle strongly anchored in international law having the status of a peremptory norm. Self-determination applies to all people, albeit with substantial differences. Peoples of different units of self-determination have different rights. Peoples of trust and non-self-governing territories under chapter XI, XII of the UN Charter and people whose entities are under foreign occupation, people who are racially discriminated against as well as people who are forcibly denied a representative government have the right to choose their own political future by expressing their will in a referendum without external interference and on the basis of equality. Self-determination in these cases could either result in the independence of the entity, its free association with another state or integration with another state based on equality of the people—external self-determination. Where self-determination concerns a sovereign state, self-determination is exercised by the rule against intervention in the domestic affairs of the state and in the free choice by its population of the form and composition of the government of the state. Customary law provides that the right to self-determination may not be partitioned and belongs to the whole population. Thus, right to self-determination is not granted to ethnic or religious minorities of a state exclusively, but rather together with the majority of the population. Therefore, the right to self-determination rules out any action that might disrupt the territorial integrity of a state. So, external self-determination, the right of peoples of trust and non-self-governing territories as well as of countries under foreign domination and racial discrimination expires once they form an independent state and then only the internal self-determination right applies. Thus, self-determination is not always equal to secession and there is no intrinsic attachment of self-determination to independence and sovereignty. Nevertheless, self-determination clauses in treaty law are formulated too widely, which enables states to use formulations according to their political needs and interests. The problem is further aggravated by a lack of a commonly agreed definition of what “people” is. Demands for application of self-determination outside the colonial context in the recent past has also highlighted the importance of a clear and explicit formulation of what self-determination entitles to the people of sovereign independent states in order to declare whether the right to self-determination entitles them to secession or not. Otherwise it creates exactly the situation which was feared by US Secretary of State Lansing and many western statesmen in the beginning of the 20th century that “without a definite unit which is practical, application of this principle is dangerous to peace and stability. The phrase is simply loaded with dynamite”.83

To return to my research topic, it becomes clear that even though Abkhazia and South Ossetia exercised internal self-determination within the Georgian state through the autonomous status awarded to these entities, they still opted for external self-determination—secession. Therefore, in the next chapter I will explore secession, which is exactly the explosive element of the above “dynamite”.

2.3. Secession in International Law
2.3.1. What is Secession?

International practice shows that there are several modes of creation of new states in international law, such as devolution, division, dissolution, unification, original acquisition and secession.84 The latter is a very relevant mode, because both Abkhazia and South Ossetia are qualified as seceding entities and therefore it is worth exploring how secession is treated in international law and what has international practice been to date in dealing with secessionist entities.

There is no single definition of secession and legal scholars interpret secession differently. The definition by the Americas’ and European legal conferences on self-determination and secession asserts that “the issue of secession arises whenever a significant proportion of the population of a given territory, being part of a State, expresses the wish by word or by deed to become a sovereign State in itself or to join and become part of another State”.85 Unfortunately, this definition does not specify what “significant proportion of the population” means. John Dugard’s formulation adds an important element to this—the absence of consent of the parent state: “unilateral withdrawal of part of an existing state from that state without the consent of the government of that state”.86 This definition is very close to Marcelo Kohen’s one which defines secession “as the creation of a new independent entity through the separation of part of the territory and population of an existing state, without the consent of the latter. Yet, secession can also take the form of separation of part of the territory of a State in order to be incorporated as part of another State, without the consent of the former”.87 James Crawford adds use or threat of force notion and defines it “as the creation of state by the use or threat of force without the consent of the former sovereign”.88 The Supreme Court of Canada definition is “secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. … What is claimed by the right to secede unilaterally is the right to effectuate secession without prior negotiations with the other provinces and the federal government”.89 Thus, four out of five definitions cited here underline that secession occurs when the parent state does not agree to the change of the status of that territory. Another important element is that the act of secession should be unilateral. Here I come up with my own operational definition which in my opinion captures all necessary characteristics of secession: “Secession is the unilateral separation of a certain territory and population living on that territory from the existing state, without the consent of the latter, with the aim of forming an independent state or joining another state, when the parent state continues to exist”. The instrumental factor here is the lack of approval by the parent state of letting the seceding entity into independence or joining another state. That is why secession is very controversial in international law and as it would be demonstrated below there have been only a handful of successful cases of secession. It is necessary to differentiate between secession and other types of creation or extinction of states: 1) secession vs. separation: the former is a violent process without agreement, while the second is an agreed and/or peaceful one; (e.g. Serbia-Montenegro, Eritrea,) 2) secession vs. dissolution: in the first case the parent state continues to exist while in the second it ceases to exist, (e.g. USSR, Czechoslovakia) 3) secession vs. devolution: in the first, the consent of the metropolitan state is absent and it is a unilateral process, while in the latter the parent state gives consent and the process is gradual and consensual (e.g. South Sudan, British dominions) and lastly 4) secession vs. annexation, when the separating entity does not become a new state, but is integrated within an existing State (e.g. Texas, Crimea).

2.3.2. Secession in International Law

It is common sense that international law neither prohibits nor authorizes secession, because the existing law does not deal with this notion. As Kohen and Tomuschat argue, states approached use of the term secession very carefully and minimized its use in law.90 Therefore, we do not find norms giving right to secession and subsequent independence to any kind of group in treaty law. What we do find is the principle of territorial integrity of states, which prohibits states from using force against or intervening in the affairs of other states. Consequently, it prohibits other states from violating the territorial integrity of a state, but does not say explicitly about prohibiting minorities residing in that state from seceding.91 This could be explained by the fact that secession is considered as a domestic act and therefore should fall under national law. Nevertheless, the Supreme Court of Canada states that “international law is a relevant standard by which the legality of a purported act of secession may be measured”.92 The UN Committee overseeing the Convention for the Elimination of Racial Discrimination (CERD) considers still that international law does not recognize a people’s right to unilateral secession.93 Thus, the conflict between secessionists and governmental authorities would still be regulated by the traditional law of internal armed conflicts, and generally treated as a “domestic affair”, in light of fundamental human rights prescriptions.94

This is true, but for one special group of peoples, namely of states born in the process of decolonization. The declaration on the granting of independence to colonial countries and peoples of UN General Assembly Resolution 1514 (XV) explicitly stated that trust and other non-self-governing territories have the right to external self-determination and should become independent.

Thus, the creation of states for the first time was transformed into a legal matter through an international norm of self-determination95 and people who fell under the category of alien subjugation, domination and exploitation could establish new independent states according to international law. Several dozen states in Africa and the Pacific, which were created in the 1960s, 1970s and 1980s, owe their legitimate existence to this particular norm. Nevertheless, this norm is limited to the decolonization context and is vague on whether self-determination outside decolonization implies secession. Interestingly, the new states started to safeguard their newly earned sovereignty and territorial integrity right after independence.

This practice is common to all regions of the world. Most secessionist conflicts were expected to take place in Africa, because borders were drawn so that certain ethnicities found themselves living in different countries. The Organization of African Unity (OAU) adopted the Cairo Declaration in July 1964, whereby all member States solemnly pledged themselves to respect the frontiers existing on their achievement of national independence96, and discouraging attempts of secession. This was further reinforced by the International Court of Justice judgment on the frontier dispute between Burkina Faso and Mali, in which the court upheld the uti possidetis juris principle of inviolability of borders achieved at independence.97

In Europe the Helsinki Act of the Conference for Security and Cooperation in Europe also gave the territorial integrity principle an upper hand by upholding the right of self-determination “in conformity with relevant norms of international law, including those relating to territorial integrity of States”.98 Similarly, the 1993 Charter of the Commonwealth of Independent States strengthened the border inviolability clause by explicitly stating that “member states of the CIS will build their relations on the basis of ….. the inalienable rights of peoples to self-determination and the right to determine their fate without outside interference; the inviolability of state borders, the recognition of existing borders and the rejection of unlawful territorial annexations; the territorial integrity of states and the rejection of any actions directed towards breaking up alien territory”.99

One of the norms to which the CSCE final act referred to originates from UN GA Resolution 2625 (XXV)—the Declaration on principles of international law concerning Friendly Relations and Cooperation Among States. Among others, it draws a clear line between self-determination and the principle of territorial integrity of the states and provided that the right of self-determination shall not be

“construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples…. and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed and colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country”.100

This declaration is very important in terms of upholding the territorial integrity principle, the right to self-determination and the illegality of changing territories by the use of force. However, this declaration is also important in a way that it could be seen as limiting the territorial integrity principle to cases when the government represents the whole people. It opens up a question on what happens when the government is not representing the whole people belonging to a territory. The formulation of “distinction” was expanded in the 1990s in two UN documents—the Declaration of the UN World Conference on Human Rights and the GA Declaration on the Occasion of the Fiftieth Anniversary of the UN by replacing the original distinction of race, creed and colour with “distinction of any kind”.101 Here is where the inferred right of “remedial secession”—a term which is widely used by now in legal literature steps in.

2.3.3. Remedial Secession

Remedial secession is a term coined by legal scholar, Lee Buchheit. It became very popular in legal literature in the last thirty years. Buchheit suggests that secession could be approached in two ways. In the first case, secession should be seen as an instrument for freeing the oppressed community from a state which inflicts massive and grave violations of human rights in a discriminatory way. “Remedial secession envisions a scheme by which…. international law recognizes a continuum of remedies ranging from protection of individual rights, to minority rights and ending with secession as the ultimate remedy”.102 Here the argument is based on moral grounds that the state which oppresses its minorities loses the right to govern over those minorities—an argument taken by both Russia and the West in recognizing Abkhazian and South Ossetian and Kosovar independence respectively. Buchheit also talks about the second approach, which he calls “the parochial model of secession” and is not accepted in international law. This approach implies that no matter how well distinct communities are represented in the government, they still have the right “to be governed by those like oneself. It is unconcerned with the relative merits of the alien rule, because the mere fact of alien domination is the basis for complaint”.103 This argument is based on the political right of freedom of association. Buchheit is echoed by another scholar, Allen Buchanan, who distinguishes between two types of theories supporting the right of secession. “Remedial Right Only Theories assert that a group has the general right to secede if and only if it has suffered certain injustices, for which secession is an appropriate remedy”.104 The second type of theory is a primary right theory, which asserts that a certain group can have the right to secede in the absence of any injustice.105 This theory rests on the political right of self-determination. Most scholars argue that in case a large group of distinct identities are denied basic rights to representation, are suffering grave violations of their civil and human rights and the state is abusing its sovereign power, this group would have a qualified right to secession. Moreover, these violations should have occurred in tandem in order to give rise to the right of secession. Some even add that the likelihood for a possible peaceful solution within the existing state structure should not exist either.106 To summarise the two theories, “the first argues that a group attains the moral right to self-determination when it has suffered certain kinds of threats or grievances, including “historical grievances”, such as previous invasion or annexation, as well as threats to its cultural preservation, threats of genocide and finally “discriminatory redistribution”. The other type of answer argues….. that self-determination is a “basic right, rooted in liberal democratic theory, available to any group the majority of whose members desire it. Threats and grievances are unnecessary to establish a claim”107. The political and legal theories however are not equally reflected in international law. Whereas, the basic right of self-determination in international law is attributed only to colonial entities, the peoples outside the colonial context are implied to have the right to self-determination only within the state boundary. The so-called remedial right could be inferred in cases of gross violation of human rights as an ultima ratio. The mainstream opinion is that inherent conflict between the self-determination of peoples and territorial integrity continues to be resolved in favour of state sovereignty—in line with the then UN Secretary-General U Thant’s famous stance towards Biafra’s secession in 1970:

“As far as the question of secession of a particular section of a state is concerned, the United Nations attitude is unequivocal. As an international organization, the United Nations has never accepted and does not accept and I do not believe will ever accept the principle of secession of a part of its member states”.108

As conventional wisdom has it, international law neither prohibits nor authorizes secession. So, on what provisions of international law are the legal scholars basing themselves when pointing at the existence of this “remedial” right?

According to Tancredi, this approach takes its origin from the advisory opinion given by the second Commission of Rapporteurs in the case of the Aaland Islands, which sought secession from Finland and re-union with Sweden.109 The first Commission of Rapporteurs in July 1920 rejected the application of the principle of self-determination to the Aalanders because of the absence of “[recognition] of the right of national groups as such to separate themselves from the state, which they form part of by the simple expression of a wish”.110 The second Commission in April 1921 proposed a strengthening of autonomy and guaranteeing the use of Swedish language on the islands, upheld Finnish sovereignty over the islands, and further stated that

“the separation of a minority from the state of which it forms a part and its incorporation into another state may only be considered as an altogether exceptional solution, a last resort when the state lacks either the will or the power to enact just and effective guarantees”.111

The report also stated that should Finland fail to grant autonomy to the Aaland Islands, their right of secession would be recognized.112 Here, for the first time a State was instructed to guarantee minority rights or otherwise “remedial” secession right could be granted to the secessionists.

The discussion on remedial secession right was taken further by the abovementioned UN GA Resolution 2625 on Friendly Relations Among States and particularly by the penultimate sentence of paragraph 7—“the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. The Supreme Court of Canada in its reference on Quebec secession inferred a right to secession from that declaration concluding that:

“A right to external self-determination arises in only the most extreme of cases, and, even then, under carefully defined circumstances…. The underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration requirement that governments represent "the whole people belonging to the territory without distinction of any kind" adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession”.113

However, the Court adds that “it remains unclear whether this … proposition actually reflects an established international law standard”.114 Many other scholars also state that the resolution infers such a right. Cassese, asserts that secession is legitimate if "the central authorities of a sovereign State persistently refuse to grant participatory rights to a religious or racial group, grossly and systematically trample upon their fundamental rights, and deny the possibility of reaching a peaceful settlement within the framework of the State structure”.115 Buchheit echoes this by saying that the “innovation of the declaration rests in its implicit acceptance of limitations upon the deference to be accorded to the territorial integrity of States—limitations arising from the States’ duty to provide a democratic government and protection for basic human rights”.116 Raic comes to a similar conclusion:

“Within the framework of the qualified secession doctrine, there is general agreement on the constitutive parameters for the right of unilateral secession, which may be summarized as follows: a) there must be a people, which though numerical minority in relation to the rest of the population of the parent state, forms a majority within an identifiable part of the territory of that state. b) the people in question must have suffered grievous wrongs at the hand of the parent state from which it wishes to secede consisting of either i) a serious violation or denial of the right of self-determination of the people concerned and/or ii) serious and widespread violations of fundamental human rights of that people and c) there must be no (further) realistic and effective remedies for the peaceful settlement of the conflict”.117

Undoubtedly, drafters of the UN GA resolution were aware that the self-determination principle could be ultimately interpreted as a qualified right to secession, hence during the debates it was stated that “an essential element of the principle should be the duty of States to accord to peoples within their jurisdiction the right to determine their political status and to pursue their social, economic and cultural development without discrimination as to race, creed or colour. It is not intended that the inclusion of such an element should encourage or condone secessionist or irredentist movements”.118

Even though the empirical evidence of remedial secession right being granted is very scarce, there is still a broad consensus in legal literature that this right could be granted, when members of a community suffer structural discrimination and all methods including international efforts to stop discrimination have failed. Consequently, the sovereignty of the states over its whole territory might be questioned, when their governments commit grave violations of fundamental human rights and prevent people from exercising their universal right of internal self-determination. Hence, the territorial integrity principle of a state is not as sacrosanct anymore, however, given the presumption in favour of territorial integrity, the threshold is high.119 On the other hand, international law, as it stands now, recognizes neither a general nor remedial right to secede. On the contrary, as we will see below, the practice predominantly supports self-determination inside the existing state and even when grave violations of minorities’ rights do occur, the international community tends to settle the conflict in the framework of broad autonomy instead of secession. Nevertheless, a lack of a clearly formulated clause on remedial secession in international law, allows states to interpret the concept freely and according to their political interests.