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Russia, Georgia, and International Law: Is South Ossetia a "State"?
Aug-9-08 02:50 pm

Photo-- Denis Sinyakov/Reuters

What does international law have to say about the Russian actions in South Ossetia? Check out Chris Borgen's outstanding legal  analysis over at Opinio Juris. Chris notes:
South Ossetia and Abkhazia are secessionist enclaves. They are unrecognized by any other state and, as such, are considered to still be part of Georgia.  More generally, international law treats secessionist conflicts as matters of domestic law and politics. 

However, international law is implicated by certain aspects of secessionist conflicts, including the protection of human rights, threats to international peace and security, and the activities of “third-party states.”  In cases of secession, a third-party state is any other state (besides the state in which the secessionist conflict is occuring) that somehow becomes involved in the conflict. Such involvement can range from being a mediator to try to end the conflict, to economic support, to military support, or to actual military intervention.  Russia has at various points (and sometimes simultaneously) played all of these roles in the Georgian conflicts.  More on that in a moment.

As for the law, the rights and duties of third-party states regarding domestic conflicts is an issue that is rooted in the concept of sovereignty: states have a basic duty not to intervene or otherwise interfere with the resolution of the conflict by the recognized government of the state.  A more complete restatement of the principle is found in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (GA Res 2625, The “Friendly Relations Declaration”, avaliable here), a General Assembly Resolution passed by member states of the UN in 1970.  Although, as a General Assembly Resolution, the Friendly Relations Declaration is not legally binding upon the member states, it is nonetheless of significant persuasive weight as to the state of customary international law.

The relevant substance of the Friendly Relations Declaration, and of the non-intervention norm, can summarized in a couple of clauses:

Recalling the duty of States to refrain in their international relations from military, political, economic, or any other form of coercion aimed against the political independence or territorial integrity of any State…

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.

In regards to military intervention, the Declaration further states that “armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic, and cultural elements, are in violation of international law.”

So, how can one assess Russia’s actions?

To start, we should keep in mind Russia’s arguments mentioned in my previous post: (1) we are not intervening first but rather responding to bad acts by the Georgain government; and, (2) we have a right to defend our co-nationals.

This first argument is probably trying to call to mind NATO actions regarding Kosovo.  Russia is technically a “peacekeeper” in South Ossetia.  But there are a few problems with this analogy.

First, the Russians maintained that NATO’s intervention in Kosovo was illegal; it is difficult for them to use it to now claim legality of their actions here.

Second, the facts on the ground are quite different– while it seems that Georgian forces did move first in South Ossetia, there is no evidence that they were undertaking any kind of ethnic cleansing.  As for whether Russia, as a peacekeeper, is authorized to undertake bombing throughout Georgia, that is also an open question.  I would, in part, need to see the terms in the peacekeeping agreement but I doubt it gives Russia such leeway for activity.

Third, to the other extreme, calling to mind that secessionist conflicts are internal conflicts and that third-party states need to respect the sovereignty of the state attempting to resolve its internal conflict, there is a rather strong argument that Russia acted precipitously and well beyond what could be expected under the circumstances.  

Fourth, even though Russia is technically both a mediator in these conflicts and also a peacekeeper, it has nonetheless consistently supported the separatists in South Ossetia and Abkhazia since about 1994. Russia has supplied separatists in South Ossetia and Abkhazia with military equipment and at times supported them with actual military action, such as the recent Russian shoot-down of a Georgian surveillance drone.  This assistance and diplomatic support has increased dramatically since Kosovo’s declaration of independence.  As a formal matter, though, Russia still has not recognized either South Ossetia or Abkhazia.

Russia’s second justification for its military intervention is that it is in defense of co-nationals. However, this argument is based in large part on the wide-spread “passportization” of the populations on South Ossetia and Abkhazia.  While Russia has had economic interests in these regions (moreso in Abkhazia) and there are many ethnic Russians in these regions, it is the handing out of passports to people living in these enclaves that has given Russia the fig-leaf of claiming that it is acting in support of Russian “nationals.”  Not very persuasive.

In sum, Russia’s intervention is fraught with problems as a matter of international law. (emphasis added)
This is excellent analysis. There is one factual question-- about which I cannot claim to have the answer-- is South Ossetia a de facto state? While it may not be recognized by other states (see bolded section in Chris's comments), if it truly is a de facto state, possessing the traditionally recognized attributes of statehood, then Georgian action would be illegal. Russia could come to the aid of South Ossetia in exercise of its right of collective self-defense under Article 51 of the United Nations Charter.

On the question of South Ossetia's status, I would note that my good friend and Georgetown colleague Charles King, an international-recognized expert on the region, has claimed for a number of years that South Ossetia enjoys de facto status. For example, in the March/April 2004 issue of Foreign Affairs, King explained:
Because of these disputes, the state known as "Georgia" has largely been a fiction of recent international diplomacy. Nearly 20 percent of the country's territory remains beyond the central government's control. Abkhazia and South Ossetia, for example, function as de facto independent countries, even though no one has recognized them. The presence of Russian soldiers -- in peacekeeping contingents authorized by the Georgians themselves and on bases left over from the Soviet era -- has discouraged Tbilisi from trying to retake the areas by force. And Adjaria, a province along the Black Sea, maintains an uneasy "autonomous" relationship with the Georgian center -- and hosts a Russian military base to underscore it. (emphasis added)
In a subsequent post-script in Foreign Affairs in August 2004, King made reference to "South Ossetia, the region in north-central Georgia which has effectively existed as an independent state for more than a decade."

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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» Learn more about the M.A. in International Law and Government at Georgetown University.


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