Ilana Bet-El
A no to South Ossetia but a yes to Kosovo – the Georgia conflict showed up international law's confusion over breakaway states
The confused web of international law and the simmering global tensions beneath it have not been resolved by the report of the Independent Fact Finding Mission on the Conflict in Georgia. In fact, the report only serves to emphasise that the inadequacy of our politicians and institutions to deal with the central issue of our times: what, if any, are the agreed rules for the making, breaking and interaction of states?
The report was commissioned by the Council of the EU and undertaken by a team headed by Swiss diplomat Heidi Tagliavini, and it is good. In fact, it is more than that: in an international field generally characterised by increasing mediocrity, it is a rare gem that takes in the historical and cultural perspectives alongside the more clinical legal one, giving context to the issues at stake. As such, it is willing to admit the facts, such as they are known to this point, are clear – yet necessarily complex, and that unless the complexity is taken into account it is impossible to understand the narrative – or avert a further disaster.
Boiled down to one sentence, the report says Georgia attacked first, but upon a background of lengthy provocation by Russia. Unsurprisingly, Georgia has rejected the specific finding though not the report in its entirety, Russia has seemingly embraced the specific finding but not the whole report, while international leaders have remained eerily silent, and for good reason: no one emerges well from these pages (barring Nicolas Sarkozy, then head of the EU presidency, whose persistent diplomacy is deemed to have brought about a ceasefire).
The US is correctly singled out for criticism for building up Georgia's military capability without a thought for the viability of this move or its end result; Russia is justifiably criticised for using its so-called ethnic nationals as a ruse to enter and expand a presence in South Ossetia and Abkhazia; Georgia is clearly criticised for being provocative to a much bigger and powerful neighbour without a thought for consequence; and the international community at large is criticised for doing too little in the face of an obviously deteriorating situation that has wider implications for the region and much further afield.
All these are bad enough, but the nub of the report remains the essential international stand-off regarding sovereignty and the interpretation of international law – which is the real reason the international leadership is flummoxed. It is made clear that these issues served as part of the backdrop to the conflict, that self-determination is not recognised in international law as a basis for the unilateral creation of a new state "outside the colonial context and apartheid", and that much of international state practice "and the explicit views of major powers such as Russia in the Kosovo case stand against it." Most crucially, the report goes on to note that according to "the overwhelmingly accepted uti possidetis principle, only former constituent republics such as Georgia but not territorial sub-units such as South Ossetia or Abkhazia are granted independence in case of dismemberment of a larger entity such as the former Soviet Union."
One year ago I wrote here that:
[Kosovo] has become the nub of the Georgian conflict – which only underlines the need for a far more fundamental debate [about international law]. And while the west adamantly refutes any comparison between the two, Russia is equally adamant it has served as a precedent for its own actions.
The report clearly bears out this assessment, and while it criticises Russia for recognising the so-called independent republics of Abkhazia and South Ossetia – deemed unlawful by the report – it also effectively accepts Russia's position that Kosovo's self-declared independence is problematic within international law, not least because it had been a province of the former Yugoslavia, not a constituent republic.
This is an important development, underlined in paragraph 8 of the report's "Observations" section – which is drafted in determinedly ambiguous terms that reflect far beyond the events in the Caucusus:
The conflict in Georgia in summer 2008 laid open tendencies by some of the political actors to move away from generally-accepted principles of international law such as the respect of territorial integrity. There were also ambiguities, if not infringements as related to the principle of sovereignty. There has also been a tendency to move away from multilateralism and negotiated results and solutions in favour of unilateral action.
These are extremely strong words, aimed as much at Washington and Brussels and all capitals in the west as they are at Moscow and Tbilisi and capitals east. They should be heeded.
Reviewing the report, David Hearst pointed out last week that the Caucasus has to work out its own relationships, possibly with western help but without western interference. This is true, but there is a need for a corollary: east and west, north and south, Russia and Georgia – we all need to work on achieving an agreement on international law and its application to states. If not we are looking not only at a further potential deterioration in the Caucusus, but also at other possible conflicts over self-determination and sovereignty.
From Kurdistan to the Basque country, from Transnistria to Chechnya, the world is full of peoples who seek independent states: they deserve to know the rules of the game. But beyond that, we all need to know: are states to remain defined by territorial integrity or has that now become a pawn to be used cynically by one side or another in an unfolding game of international one-upmanship?
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