The Law and Politics of Engaging De Facto States

Injecting New Ideas for an Enhanced EU Role

Benedikt Harzl

• Editorial: Center for Transatlantic Relations SAIS
• Año: 2018
• ISBN:
  9781947661059
• Categoría: Politik & Internationale Beziehungen
• Categoría: Diplomatie & Abkommen

The secessionist entities that emerged out of the turbulent upheavals in the 1990s in the South Caucasus have, over many years and with enormous external assistance, successfully defied the jurisdiction of their metropolitan states. As entities that have attained a status of de facto statehood, they epitomize unresolved conflicts between core principles and doctrines in public international law. This study addresses the interplay between law and politics against this context and problematizes false dichotomies that have arguably hindered the transformation of these territorial disputes. The author devotes particular attention to different ways of engagement with the de facto states below the level of political endorsement.

The Crux of the Matter: Defining the Problem(s)

Overcoming Incorrect Dichotomies

Given the above, what does this essay seek to discuss? The international system is much more fluid, and as Florea rightly argues, much more kinetic than mainstream international relations theories and traditional international law approaches portray.²⁰ We are in reality not confronted with a binary situation in which the either-or dichotomy guides our reasoning and, consequently, must guide our policies. The classical and realist view according to which a state is either sovereign or it is not a state is – if we choose to admit it or not – seriously challenged by the continuous existence of de facto states.²¹ This article is aimed at injecting some fresh blood into the discussion on reframing the understanding of sovereignty in the South Caucasus with regard to the disputed territories.

By building on the already mentioned vast bulk of excellent scholarship, the author of this book argues that the de facto states, representing the most notorious outcome of the wars in the 1990s, do not represent an anomaly in international politics, nor are they a ‘blind spot’ outside of the application of international law. By effectively defying the jurisdiction of Georgia and Azerbaijan, these entities have grown into indicators of a consolidated permanent dichotomy of the clash of (external) self-determination vs. territorial integrity of states.

While reintegration into Azerbaijan and/or Georgia appears to be a highly unlikely scenario, the other extreme will not ameliorate the crisis either. And indeed, diplomatic recognition of these entities does not seem to provide an exit out of these troubles: The most problematic decision of the Russian Federation in 2008 to diplomatically recognize Abkhazia and South Ossetia has probably removed the last incentive of the local population to constructively engage in discussions over sovereignty and/or a future power-sharing deal under a common state roof of the metropolitan state, the Republic of Georgia. Hence, Thomas de Waal’s point on the fact that it is inaccurate to speak of the possibility of “conflict resolution” and that it would be rather commendable to use the term of a slow “conflict transformation” is actually correct.²² Moreover, this most dreadful decision has actually narrowed the independence of Abkhazia and South Ossetia rather than bolstered it. Both South Ossetia and Abkhazia are today less autonomous in their room for maneuver and decision-making capabilities than they used to be prior to 2008.²³ And also the governments of de facto states will gradually start to ask what they gain from partial diplomatic recognition, unless they are recognized by the metropolitan state. In order to address the issue of de facto states, we therefore have to overcome certain beliefs which have been, to some extent, the reason why we are still far away from conflict resolution in the South Caucasus.

Law: Neither Just nor a Remedy in Self-Determination Disputes

Legal Argument as a Subset of International Political Argument

The stable existence of de facto states bluntly illustrates the obvious limitations to international law in its remedial function. Neither does the position, or probably much better put the “battle cry”,²⁴ of the de facto states – to have their “right” to external self-determination respected – nor the outcry of the metropolitan states – not to allow their territorial integrity to be infringed – translate into a viable solution ipso facto. The fact of the matter is and remains that self- determination disputes – in particular if they come with the notorious secessionist territorial connotation as in the South Caucasus – are effectively power-sharing disputes.²⁵ As such, they ought to be handled through comprehensive engagement, through avenues of dialogue and, in the long run, preferably through substantive negotiations between the conflict parties. To hold the position that sovereignty is absolute or indivisible would disregard the prevalent existence of consociational features which have proven to safeguard institutional arrangements in polities made up of different collective identities and divided societies.²⁶ Holding on to this, admittedly, toxic binary code will eventually drastically reduce the possible number of options to settle these and other comparable crises. Much to the regret of those who advocate this misconception the public international law on self-determination does not solve the underlying self-determination conflicts. No matter how strongly the metropolitan states push for an international endorsement of the principle of territorial integrity²⁷ and irrespective of the de facto states’ desire for their recognized statehood, their shaky states makes sure that international law in abstracto will fail to deliver the extreme results they would approve of.

Yet international law fulfills central roles for both the metropolitan and the de facto states in shoehorning their actions and interests into legal categories. Lea Brilmayer, Professor of International Law at Yale University, provides an interesting metaphor. She compares in this context refugees and secessionists. While both want to escape from a political system which they both find intolerable, only the refugees want to leave it physically, while the secessionists lay claim on the territory. Hence, the latter assume a high duty of justification, which the first do not have to bear.²⁸ Accordingly, the secessionist party has to make sure to provide a sound legal rationale for its move.

And indeed, the de facto states invest a lot of effort in demonstrating their cases within the framework of a legal rationale. Law as a medium of politics is an important feature in all of these territorial disputes. The Abkhazian government describes its country as being established in accordance with the “right of self-determination.”²⁹ Likewise, the former President of the de facto Republic of South Ossetia, Leonid Tibilov, made similar remarks, opining that the people of South Ossetia had gone through many hardships, realizing their right to self-determination in accordance with all norms of international law.³⁰ In seeking multiple legal provisions favorable to the position of the de facto states, the concept of colonization is also sometimes made of use by proponents of the de facto states’ cause. Accordingly, one may argue that the Soviet Union featured some of the most notorious elements of a colonial system by arbitrary boundary-drawing, mass deportations on an ethnic basis or by policies which fundamentally altered the ethnic make-up of territorial entities.³¹ Proponents of the de facto states find it unsettling that national self-determination in the form of external sovereignty has been “domesticized”³² by limiting it to decolonization stricto sensu. And indeed, this position has some ingredient of accuracy as it seems somehow arbitrary and runs counter to its philosophical underpinnings of enlightenment which designed this concept for universal consumption.³³ Yet this position will also not put things right for the de facto state.

Self-determination is a concept that has philosophical roots, but only later was this concept incorporated into the realm of the law. It represents a very important and powerful intellectual tool, which, as Hilpold rightly argues, performs crucial roles for political concepts whose force must not be easily dismissed.³⁴ As such, the right to self-determination may have defining features, which are not necessarily those that would have been shared by the Jacobins. It is fair to argue that even the decolonization process has never really been about restoring sovereignty on an exclusively ethnic basis.³⁵ This is confirmed through the application of the uti possidetis principle, which represents some of the most problematic legacies of colonial rule³⁶ and apart from this: Decolonization produced a long list of new multi-ethnic states. This is exactly what the governments of the de facto states of the South Caucasus are intending to defend. Let us not miss another crucial point: Colonialism was gradually seen after World War II as inherently evil, particularly as it was coupled with foreign domination and ruthless economic exploitation. It would be rather naïve to qualify “Soviet colonialism” in this light. The Soviet nationalities policies have been most successful in providing the crucial proto-state features to its constituent entities so that, by 1991, states like Kazakhstan, which have not been anywhere close to a taste of statehood before the end of World War I, were perfectly prepared for independence.

In addition, colonial powers, including the UK, began to grow tired of keeping colonies within their orbit. It started to become less profitable and did, indeed, drain resources which resulted in pressure to give those colonies up. Fatigue and exhaustion feature as additional factors at the core of understanding the conditions under which governing powers gradually started to relinquish their grip on their former colonies. This metropolitan fatigue, if one for instance takes the example of Azerbaijani state policies is not given at all in the South Caucasus cases. Why would Azerbaijan grow tired of what it currently does: Lobbying for its cause and portraying the conflict as an inter- state dispute with Armenia?³⁷ In addition, the so-called “saltwater doctrine”³⁸ required that there be logistical obstacles between the colonial power and the colony. And last but not least it must not go unnoticed that colonialism is not seen as a sociological phenomenon but as something, which is historically unique and cannot be extended to other regions.³⁹ It is also for these reasons that the frequent reference to decolonization is not convincing from the perspective of de facto states.

Evidently, the same functional interpretation of law with an inverted substantive content is provided by the governments of the metropolitan states. By invoking Article 2 (7) of the UN Charter, most states answer the question of the respective metropolitan state’s jurisdiction in matters over self-determination.⁴⁰ Yet, at the same time they tend to view secessionist uprising ...

Índice

• Cover
• Title Page
• Copyright
• Table of Contents
• Introduction
• The Crux of the Matter: Defining the Problem(s)
• The EU and the South Caucasus: An Unfinished Story in Three Acts: What Role for de facto States?
• Engagement with de facto States – What Kind of Engagement?
• Conclusion
• Acknowledgments
• Bibliography
• About the Author