The International Community Position on Kosovo, South Ossetia and Abkhazia - Research Proposal Example

Research Proposal Why are similar independence claims the of different responses from the international community? The international community’s position on Kosovo, South Ossetia and Abkhazia I. Introduction: The declaration of independence last year by South Ossetia, Abkhazia and Kosovo led to entirely different reactions by the international community, including international organizations like the United Nations (UN), the Council of Europe (CoE) and the Organizations for Security Cooperation with Europe (OSCE) as illustrated in Table 1.1 Whereas the CoE, the UN and the OSCE recognized Kosovo’s independence, they each refused to accept and recognize the independence of South Ossetia and Abkhazia.2 Reactions within the international community demonstrate similar inconsistent trends with the European Union (EU) split on Kosovo’s independence and unquestionably unsupportive of South Ossetia and Abkhazia.3 NATO and the United States accepted and recognized Kosovo’s independence but refused to accept and recognize the independence of South Ossetia and Abkhazia and Russia, on the other hand has had the opposite reaction.4 In other words, Russia does not support Kosovo’s independence claim, but it supports independence claims by South Ossetia and Abkhazia. Taking an exploratory stance, we aim to find a reasonable explanation for the different reactions among the international community to the vastly similar independence claims of Kosovo, South Ossetia and Abkhazia. The work of Margaret Moore is interesting in this regard. Analyzing Germany’s early recognition of Croatia and Slovenia’s declaration of independence from Yugoslavia in 1991 made her conclude that the recognition was driven by “internal politics” rather than on the legal merits.5 She likewise predicted that future decisions to recognized states would also be driven by internal politics and power politics. Has Moore’s predictions played out in the different responses to independence claims by South Ossetia, Abkhazia and Kosovo? Are those responses driven by great power politics or are those responses based on the merits? It seems unlikely however, that the different reactions are based on the merits since the independence claims are based on vastly similar facts. As we start explaining what follows, South Ossetia, Abkhazia or Kosovo each have the same qualifying factors within the exceptions to the no-secession rule in customary international law. The different responses among the international community to what is essentially the same action by different actors, raises an important question relative to the issues of self-determination and state sovereignty in customary international law. What appears to be straight-forward concepts of state sovereignty and self-determination appears to have been used in comparable circumstances to justify entirely different results. If the right to self-determination and the concept of state sovereignty can render the declaration of independence by one state legitimate, how can the declaration of independence by another comparable state be illegitimate? This is the question that the author wants to explore and explain. The author intends to explore the question of to what extent power politics, and national interests in particular have been the catalyst for international tension and conflict. Does power politics account for the different reactions to the secessions of Kosovo, South Ossetia and Abkhazia? Does Russia’s presence and point of view influence the inclination for engaging power politics? And is Russia’s own response driven by such politics? In order to understand these different responses among the international community it will be necessary to look at the way that the international community has defined each of the three secession cases. These definitions and the resulting reactions will be examined by reference to the concepts of self-determination and state sovereignty and whether or not these concepts have a role to play in the international community’s reaction to the three secessions. Taking an historical perspective this study proposes to examine these concepts and to apply them to the specific facts and circumstances of the declaration of independence by South Ossetia, Abkazia and Kosovo. This history is important for understanding the position taken by the international community particularly the principle member states within the UN such as Russia and the US, Member States within the CoE as well as in the OSCE. Ostensibly the US as an ally to these two European organizations and Russia’s membership and affiliation with the European organization immediately draws attention to the role of great power politics. Ultimately the researcher wants explore the motivations for the different reactions to the three secessions and whether or not power politics drove the specific state recognition and the parallel interpretation of the concept of self-determination and state sovereignty. The question for consideration is whether or not power politics determined state recognition in respect of the three secessions and not international law. International law commands state cooperation in the making of customary international law. As we explain what follows from the perspective of customary international law, the three cases seem to similar and thus comparable. In this regard, state recognition plays a key role in the making and functioning of international law. The declaratory and constitutive theories can be used for the benefit of political agendas and as such can manipulate the application of law in state recognition. The different approaches to state recognition by the UN, the OSCE and the CoE illustrate this aspect of customary international law. In other words, it is quite possible that power politics is just as relevant to international affairs today as it were during the Cold War era. In other words, realism is still relevant for understanding international politics. The main research question is therefore: Question 1: Why do international organizations deal with seemingly similar independence claims in different ways? More specifically, to what extent can power politics and national interests in particular explain the different treatment by the US, the OSCE and the CoE of similar secession cases? This question will be examined by reference to the different reactions by the UN, OSCE and the CoE’s to the secession of Kosovo, South Ossetia and Abkhazia’s. This question is explored by reference to the similarities between the three states in that they each meet the criteria for exceptions to the no-secession rule. Essentially, each of the countries have defined territories, functioning governments, supportive populations and had been subjected to human rights violations. The only discernible differences in the context of the right to self-determination and state sovereignty is the sizes of the respective populations. Kosovo has a much larger population than any of the other countries. Arguably, the human rights violations in Kosovo occurred on a smaller scale than it did in South Ossetia and Abkhazia. Each of these differences and similarities will be examined in detail in an attempt to answer this research question. In answering this question, we will also explore the (evolving) role of Russia in international politics, including the international organizations studied. Our second research questions reads thus as follows: Question 2: What do the three cases teach us about Russia’s role in contemporary international relations? To what extent is its reaction driven by power politics and national interests, reflecting Cold War logics? II. The State of the Field: In the remainder of this document, we start exploring to what extent the three cases we will study are similar and thus comparable. We take a legal perspective for doing so. It is largely agreed that state recognition relies on succession, secession and self-determination.6 For the purpose of this project secession and self-determination are the only relevant elements with respect to statehood and state recognition. Each of the states have distinctive populations and each of the distinct populations have suffered human rights abuses against them by the state from which they seceded. Moreover, each of the states have established functioning and effective governments. It therefore follows that each state has just as much right as the other to secede from their respective head states. In other words the populations of Kosovo, South Ossetia and Abkhazia each have the right to self-determination. There are those that suggest that the question of statehood affecting Kosovo, South Ossetia and Abkhazia emanate from the fact that international law is vague and is a mixture of customary law and politics.7 Likewise there are those who suggest that power politics is the deciding factor. Despite the inherent right to self-determination and the fact that Kosovo, South Ossetia and Abkhazia each have the right to self-determination and therefore fall within the three exceptions to the no-secession rule, they have been treated differently by the Council of Europe, the OSCE and the UN. The CoE in its 2008 White Papers takes the position that Russia’s support of the South Ossetia and Abkhazia’s independence is a violation of international law and it should therefore withdraw its support of their declaration of independence.8 Similarly, the CoE and the OSCE disagrees with Russia’s position against Kosovo’s declaration of independence.9 Ultimately, as Weller concludes in his article Settling Self-determination Conflicts: Recent Developments, the UN, the OSCE and the CoE deny that there is a link between the declaration of independence of South Ossetia, Abkhazia and Kosovo. These three international organizations take a position against Russia’s support of Abkhazia and South Ossetia and its opposition to Kosovo’s declaration of independence.10 In other words, it seems to the case that none of the international players involved have been consistent in their approaches to the independence claims of South Ossetia, Abkhazia and Kosovo. Yet they are each predisposed to stand in judgment of the reactions that are different from their own. For example, the CoE outright dismissed suppositions amongst foreign affairs experts who argue that the disparity of opinion over the declaration of independence of Kosovo, South Ossetia and Abkhazia is reminiscent of the Cold War.11 However, as Mankoff argues in Russian Foreign Policy: The Return of Great Power Politics, the conflicting positions have put Russia against the West under threat of war in East Europe again.12 The position taken by the West is reflected in the positions taken by the UN, the OSCE and the CoE and each interpret the facts so that international law can be applied in a manner that best supports each of their respective positions. These disparaging positions are reminiscent of the political agendas that drove a wedge between the West and Russia during the Cold War and it will be argued that just at international organizations were manipulated by the West do support their respective political agendas, it is being used now, particularly by the West. In this regard, the author provides a different theory that adds to the current study on the power politics and law surrounding state recognition of Kosovo, South Ossetia and Abkhazia. The author aims to investigate different reactions by the UN, the OSCE, Russia and the CoE with respect to the declaration of independence of South Ossetia, Abkhazia and Kosovo. This investigation would likely lead to the position that each of these international organizations’ reactions is no more consistent than that of Russia’s. It would also likely lead to the conclusion that each position is politically driven with very little attention to the legitimacy of the each declaration of independence. After all each country have the same essential state-qualifying backgrounds in that they each have functioning governments, supportive populations and a history of previous human rights violations under the state from whom they claim independence. The author intends to investigate the possibility that if all politics are set aside, the declarations of independence by South Ossetia, Abkhazia and Kosovo are each legitimate. In this regard, most authors claiming that the declaration of independence by each of the three states are equally illegitimate or that Kosovo’s declaration of independence is legitimate and the declaration of independence by South Ossetia and Abkhazia is contrary to legal theories of statehood and international law. The author intends to investigate this contention and will attempt to prove that a case could be made that each of the secessions are equally legitimate. It will be argued that from a purely legal perspective each of these states have earned the right to self-determination and by extension state sovereignty. III. The Project Description: It is generally accepted that the contemporary nature of statehood recognition, particularly since the end of the Cold War Era exists in what can only be described as a “legal fog”.13 By way of background only, the formula for statehood recognition in the context of international law is derived from Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States which provides four requirements for de facto status as a state. These four requirements are: (1) the existence of a stable population; (2) a defined territory; (3) a functioning governing government and (4) the capacity to engage in foreign relations with other states.14 This definition for the recognition of a state is not in dispute. It necessarily engages the controversial issue of the concept of territorial sovereignty and the theory of non-intervention. It is this aspect of statehood recognition that feeds into political agendas and this is at the heart of the state recognition controversy surrounding the declaration of independence by Kosovo, South Ossetia and Abkhazia. There are two opposing contentions. The respective states by declaring independence are engaging a right to be disengaged from their previous geo-political territories and expect to exist within the realm of the non-interventionist doctrine. Those who oppose or support these declarations of independence are driven by the consequential non-intervention characterization of state sovereignty, although for different reasons. It is these reasons and political agendas that place the issue of statehood and recognition into a legal fog. To this end, territorial sovereignty is founded on the doctrine of non-intervention within the scope and range of customary international law.15 State sovereignty provides the basis by which other states are not at liberty to intervene in the internal affairs of other states.16 The UN Charter introduced the principle of non-intervention into customary international law in 1945.17 It 1965 the UN took the concept of non-intervention in the context of state sovereignty a step further when it adopted a Declaration on the Admissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty.18 The United Nations’ General Assembly’s Declaration of Principles which were announced in 1965 reveals that the mere idea of any kind of intervention is coercive. According to the General Assembly’s 1965 statement, not only armed conflict, but any other “forms of interference or attempted threats against the personality of the State” as well as against its “political, economic and culture elements” are not tolerated.19 Declaration on the Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union, adopted by the CoE in 199120, sets out the criteria for state recognition but it does not mention governance but instead emphasises the significance of adhering to non-aggression and respect for human rights and the right to self-determination.21 The OSCE’s Convention Framework likewise focuses on self-determination and emphasises the rights of national minorities.22 It will therefore be necessary to explore the manner in which concepts of intervention and non-intervention influence or provide incentives for members of the international community to recognize or refuse to recognize the de facto state. Ultimately, the researcher explores the question of whether or not the ability to intervene in state affairs is a primary motivating factor and drives the decision to recognize or refuse to recognize states rather than the actual straightforward definition of the de facto state as provided for in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States. This begs the question of whether or not great power politics is the decisive factor rather than the specific facts and circumstances. According to Mearsheimer, great power politics is characterized by each state’s goal to “maximize its share of world power” which often occurs “at the expense of other states.”23 It will be interesting to know whether or not great power politics is the determining factor in the different reactions to the secession of the three states. Ideally, this discourse on sovereignty in customary international law investigates whether or not state sovereignty is much more than a political ideology but it is also based on fact rather than technical concepts of state-hood. In other words, do each of these states have stable populations? Do they occupy defined territories? Do they have established governments? Are they capable of engaging in international relations? If these questions can be answered affirmatively in respect of any of these states, then the matter should be settled. However, the matter does not end there because there is the contentious issue of state recognition, and the confusion over whether or not it is a precondition for the statehood.. In this regard there are two opposing legal theories that are relevant to state recognition and acquiring international personality. It is this aspect of statehood that compromises the ability to meet the Montevideo criteria. The two relevant theories are the declarative and constitutive theories.24 By virtue of the constitutive theory, the fact that international law is devoid of a centralized legal system commands that statehood in terms of customary international law automatically requires recognition by other states in order for statehood to achieve validity.25 The declarative theory, takes the position that if a state exists in fact, it exists in law.26 The declarative theory is best understood in the context of Article 3 of the Montevideo Convention of the Rights and Duties of States which clearly states that statehood does not depend on state recognition and Article 1 sets out the criteria for statehood. Applying this criteria it will be argued that Kosovo, South Ossetia and Abkhazia each meet the criteria for de facto state recognition. Therefore, any refusal to recognize the statehood of any of these states are founded on politically driven agendas and are rooted in the power politics that existed during the Cold War era, although in an indirect way today. Certainly it can be argued that state recognition by international bodies is a necessary precursor to statehood. This necessity stems from the fact that there are a number of ethnic entities calling for separation from the mainland under the auspices of self-determination.27 As a result the issue of whether or not ethnic groups and minorities are at liberty to the underlying rights that accompany self-determination and the right to claim secession places some restraints on the automatic recognition of states.28 There must be some qualifying factors. However, it is entirely questionable whether or not those qualifying factors employed by the UN, the OSCE and the CoE are the same for each of the states. A similar question must be asked of Russia and the US’s position and how much of the Cold War mentality influenced these decisions. It is therefore possible that a new Cold War looms. It is also possible to argue that the inconsistent recognition of Kosovo and the states of South Ossetia and Abkhazia are directly related to the inconsistent principles of international law as put forth by Articles 1 and 2 of the UN Charter. These principles are the principle of self-determination and “the principle of state sovereignty and territorial integrity.”29 Article 1 provides that: Friendly relations among nations are based on respect for the principle of equal rights and self-determination of peoples.30 Article 2 of the UN Charter provides that: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.31 It is obvious from these two provisions that the UN Charter confers upon any group the right to self determination and at the same time denies that any right exists in favour of state sovereignty. In this case, the UN Charter itself provides the rationale for taking a position both for and against situations that have comparable facts. It opens the door to the use of political rationale and the formation of legal theories that go against the straightforward definition of statehood in the Montevideo Convention. In any case, the same international bodies that recognize Kosovo should likewise recognize South Ossetia and Abkhazia, unless the facts and circumstances are sufficiently far apart. It will therefore be necessary to explore the history and the facts and to make a comparative analysis of those facts. In this regard, the history of each of the cases under this study and developments that impact the Cold War, the break-up of the USSR, the war in the Balkans that followed and the specific political characterization of Kosovo, South Ossetia and Abkhazia will be explored and compared. This historical overview is necessary for determining how each of the specific secessions compare and/or contrast with each other. By taking this approach it will be fairly easy to determine whether or not there is a logical legal basis for the disparaging recognition of these states by the same international bodies. Another shortfall with the research is that from an overview of the literature many of the researchers appear to take a rather Western view of the situation and others take a non-Western view. The research is exploratory in nature and therefore only limited comparative research was conducted. These comparisons focused on Russia. In this regard the author was required to read the objective history so that an independent view could be formed and used to evaluate academic discussion on the issue of state recognition in the case of Kosovo, South Ossetia and Abkhazia. IV. Research Methodology and Design: a. Methodology This research is exploratory in nature and therefore is an assessment of known facts and circumstances and in this regard the research study is qualitative in nature. In order to provide a critical analysis of the facts and circumstances the author was required to gather a number of secondary and primary sources on the relevant history. In this regard, a brief history of the Cold War was used by reference to a number or secondary resources such as history text books and academic discussions on the subject in articles and journals. Secondary sources such as Henkin’s International Law: Politics and Values provides a theoretical background for exploring the different reactions to the secession of the three states. Similarly, secondary sources derivied from academic theories such as those espoused in Gordon’s United Nations Intervention in Internal Conflicts: Iraq, Somali and Beyond will be explored. The author relied on Krueger’s Implications of Kosovo, Abkhazia and South Ossetia for International Law: The Conduct of the Community of States in Current Secession Conflicts for a historical overview and background information on the secession of the three states. Mankoff’s Russian Foreign Policy: The Return of Great Power Politics is also useful for explaining how Russia’s position with respect to the three states is reflective of motivating factors that drive reactions among international community toward state secession. Primary sources will be derived from government publications of conferences and treaties dating back to the Second World War are used purely for background information. For example the Council of Europe, Parliamentary Assembly-Working Papers-2008 Ordinary Session provides some valuable insight into the Council of Europe’s position with respect to the three secessions. The emphasis in this regard was the breakdown of the USSR and the resulting wars that followed in the Balkans as a result. Again this information will be collected from secondary and primary resources in much the same manner as the Cold War research. In addition, primary sources will come from UN publications and the OSCE and the Council of Europe. These resources include the UN Charter, Convention on the Rights and Duties of States and Self Determination: Principle and the Law. Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty United Nations General Assembly Resolution 2131XX, 21 December 1965. In order to advance the hypothesis that the state recognition of Kosovo, South Ossetia and Abkhazia are equally legitimate despite disparaging approaches by the international community, this research will examine the historical facts applicable to Kosovo, South Ossetia and Abkhazia. This will be conducted by reference to secondary sources such as history textbooks and academic discourse in peer reviewed journals and articles. Primary resources relative to the UN, the OSCE and the Council of Europe will also be used to offer an effective analysis of the political influences and to explore the hypothesis. The declarations of independence are relatively new and whether or not these states will be welcomed on an even par into the international community any time soon will not be known at this early stage. Moreover, much of the discussion is in its infancy and therefore predictions are not possible at this early stage except by reference to history. b. Design This research will be organized and presented in the following chapters: Chapter One: Building upon the work of Mearsheimer, Raic and Weller, this chapter sets out the conceptual, theoretical and methodological framework for the study. We formulate the research question, define the variables and identify the three cases. Chapter Two: Taking an historical perspective this chapter offers the background for which the critical analysis will be measured against. In this regard, the history of the Cold War, the break-up of the USSR, the conflicts in the Balkans and the specific circumstances of Kosovo, South Ossetia and Abkhazia at the end of the Cold War will be presented. Chapter Three: Chapter Three will focus on Kosovo and the events leading to its declaration of independence. This chapter will also present the responses of the international community focusing on the UN, the OSCE and CoE. Chapter Four: This chapter will focus on South Ossetia and Abkhazia and the events leading to their respective declarations of independence. Like the previous chapter, this chapter will give a detailed overview of the responses of the international community focusing entirely on the UN, the OSCE and CoE. Russia’s role in all of this will also be explored. Chapter Five: Chapter Five will present the researcher’s findings and will offer a critique of the different responses taken by the UN, the OSCE and the CoE Chapter Six: This chapter is the concluding chapter and in addition to offering a recap of the researchers finding it will also offer some recommendations for how the UN, the OSCE and the CoE could take a more consistent and cohesive approach to the issue of state recognition. V. Pay off of the Project In addition to broadening the author’s own understanding of power politics in international relations, the author hopes that this project will contribute to the current debate on self-determination and the state sovereignty. By drawing on the inconsistencies in the approach taken by the UN, the OSCE and the CoE, these international actors might become more aware of the inconsistencies that arise when politically driven decisions are made. It is hoped that his project might contribute to further research into finding a solution for a more consistent approach to state recognition and reconciling the concept of self-determination with the concept of state sovereignty. Tables Table 1 Kosovo South Ossetia Abkhazia Population: 2, 126,708 Albanian Majority 70,000 Ossetian Majority 220,000 Russian Majority Effective functioning government since 2001 Effective functioning government since 2006 Effective functioning government since 2004 Human Rights atrocities against Albanians in Kosovo by Serbia under Serbian rule. Human rights abuses against Ossetians by Georgia under Georgian rule Human rights abuses against Russians by Georgia under Georgian rule Table 2 International Reaction to the Declaration of Independence by Kosovo, South Ossetia and Abkhazia Council of Europe UN OSCE Kosovo Divided Neutral Supports Kosovo’s independence South Ossetia Opposed Opposed Opposed Abkhazia Opposed Opposed Opposed Bibliography Bahcheli, T; Bartmann, B. and Srebnik, H.De Facto States: The Quest for Sovereignty. (Routledge, 2004). Bandow, D.”US Policy Toward Kosovo: Sowing the Wind in the Balkans, Reaping the Whirlwind in the Caucasus.” Mediterranean Quarterly 20(1):15-30. Bowett, D.”Economic Coercion and Reprisals by States.” The Virginia Journal of International Law. 13(1) (1972): 1-12. Convention on the Rights and Duties of States, Dec. 26, 1933. Council of Europe, Parliamentary Assembly-Working Papers-2008 Ordinary Session, Council of Europe Publishing, 2009. Council of Europe. Filing the Frame. Oxford University Press, 2004. Declaration on the Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union, EC, 1991. Gordon, R. “United Nations Intervention in Internal Conflicts: Iraq, Somali and Beyond.” Michigan Journal of International Law. 15 (1994) :520-590. Henkin, L. International Law: Politics and Values. (Kluwer Academic Publishers, 1995). Krueger, H. “Implications of Kosovo, Abkhazia and South Ossetia for International Law: The Conduct of the Community of States in Current Secession Conflicts”, Caucasian Review of International Affairs. 3(2) (2009): 121-142. Mankoff, J. Russian Foreign Policy: The Return of Great Power Politics. Rowman and Littlefield Publishers, Inc. 2009. Mearsheimer, J. The Tragedy of Great Power Politics. W.W. Norton and Company, 2001. Moore, M. National Self-Determination and Secession. Oxford University Press, 2008. Raic, D. Statehood and the Law of Self-determination. (Kluwer Law International, 2002). Schachter, O. “Coercion and Self-Determination: Construing Charter Article 2(4)” American Journal of International Law.78 (1994): 642-650, 642. Schaffer, S. “The Kosovo Precedent – Directly Applicable to Abkhazia and South Ossetia.” Caucasian Review of International Affairs. 3(1) (2009):108-110. Self Determination: Principle and the Law. Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty United Nations General Assembly Resolution 2131XX, 21 December 1965. Slomanson, W. “Legitimacy of the Kosovo, South Ossetia, Abkhazia Secessions: Violations in Search of a Rule.” Miskolc Journal of International Law 9 (2009): 1-28. Stepanova, E. “South Ossetia and Abkhazia: Placing the Conflict in Context.” SIPRI Policy Brief. (November 2008): 1-4. Tolksdorf,D. “Kosovo Precedent – Applicable in Many Parts of the World, But not Directly in the South Caucasus”. Caucasian Review of International Affairs. 3(1) (2009): 103-107. UN Charter 1945. Weller, M. “Settling Self-determination Conflicts: Recent Developments”. The European Journal of International Law 20(1) (2009):111-165. Read More