Kosovo vs. South Ossetia and Abkhazia - Research Paper Example

Research Proposal Why are certain independence claims treated differently by the international community? Kosovo vs. South Ossetia and Abkhazia I. Introduction: The declaration of independence last year by South Ossetia, Abkhazia and Kosovo led to entirely different reactions among the international community.1 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. Seemingly straight-forward concepts of state sovereignty and self-determination were 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. It is a significant question because the situation in the Balkans has the potential to create the kinds of threat to world security and peace that existed during the Cold War Era. The author intends to demonstrate that too much attention to great power politics and too little attention to law is the catalyst for international tension and conflict. In order to understand these different responses among the international community it will be necessary to study the concept of self-determination and state sovereignty. 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. These recent events however will only be understood by reference to their respective histories which commence with the end of the Cold War era and the break-up of the USSR. This history is important for understanding the position taken by the international community particularly the United Nations (UN), the Council of Europe and the Organization for Security and Co-operation in Europe (OSCE). Ultimately the researcher wants to test the theory that power politics drives state recognition and any interpretation of the concept of self-determination and state sovereignty. It will ultimately be argued that power politics determines state recognition and not international law. International law commands state cooperation in the making of customary international law. In this regard, state recognition plays a key role in the making and functioning of international law. The declaratory and constitutive theories can be manipulated in favour 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 Council of Europe illustrate this aspect of customary international law. In other words, power politics is just as relevant to international affairs today as it were during the Cold War era. The main research question is therefore: Why is there a disparaging legal rationale for the UN, OSCE and the Council of Europe’s treatment of Kosovo, South Ossetia and Abkhazia’s declarations of independence? This question will be explored by reference to the following incidental research questions: How does politics influence the disparaging treatment by the UN, the OSCE and the Council of Europe? Taking politics aside, how are any or all of the declarations of independence legitimate? How can the declaratory and constitutive theories be applied to reconcile the differences in treatment by the UN, the OSCE and the Council of Europe? II. The State of the Field: It is largely agreed that state recognition relies on succession, secession and self-determination.2 For the purpose of this project secession and self-determination are the only relevant elements with respect to statehood and state recognition. There is a general consensus 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.3 The Council of Europe 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.4 Similarly, the Council of Europe and the OSCE disagrees with Russia’s position against Kosovo’s declaration of independence.5 Ultimately, as Weller concludes in his article Settling Self-determination Conflicts: Recent Developments, the UN, the OSCE and the Council of Europe deny that there is a link between the declaration of independence of South Ossetia, Abkhazia and Kosovo and that Russia’s support of Abkhazia and South Ossetia is wrong and its opposition to Kosovo’s declaration of independence is also wrong.6 The Council of Europe outright dismissed the ongoing fear amongst foreign affairs experts that the disparity of opinion over the declaration of independence of Kosovo, South Ossetia and Abkhazia is reminiscent of the Cold War.7 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.8 The position taken by the West is reflected in the positions taken by the UN, the OSCE and the Council of Europe 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 takes the position that the UN, the OSCE and the Council of Europe are just as wrong as Russia is with respect to the declaration of independence of South Ossetia, Abkhazia and Kosovo. Each position is politically driven with very little attention to the legitimacy of the each declaration of independence. The author intends to demonstrate that if all politics are put aside, the declaration of independence by South Ossetia, Abkhazia and Kosovo are each legitimate. In this regard, the author rejects the majority of the current arguments 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 wrong and contrary to legal theories of statehood and international law. 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”.9 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.10 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.11 State sovereignty provides the basis by which other states are not at liberty to intervene in the internal affairs of other states.12 The UN Charter introduced the principle of non-intervention into customary international law in 1945.13 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.14 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.15 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, it will be hypothesized that 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. Ideally, this discourse on sovereignty in customary international law dictates that 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. It is therefore necessary to examine these two theories before exploring the contextual nature of the UN, the OSCE and the Council of Europe’s refusal to recognize the statehood of South Ossetia and Abkhazia and at the same time accept the statehood of Kosovo. The two relevant theories are the declarative and constitutive theories.16 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.17 Even so, the constitutive theory does not require recognition by other states as a prerequisite for state creation. The existence of the state actually comes prior to state recognition and as a result obviously exists before the issue of recognition can take place. In this regard, the state exists with or without recognition and the latter merely gives its international personality. The declarative theory, takes the position that if a state exists in fact, it exists in law.18 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.19 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.20 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 Council of Europe are the same for each of the states. A similar question must be asked of Russia’s position and how much of the Cold War mentality influenced these decisions. 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.”21 Article 1 provides that: Friendly relations among nations are based on respect for the principle of equal rights and self-determination of peoples.22 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.23 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 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. 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. Unfortunately, the declarations of independence took place last year with the result that classified intergovernmental paper will not have been released to the public as yet. So in this regard, this research will be limited by a lack of corroborative evidence and will therefore be limited to an assessment of what is publically known. Another shortfall with the research is that many of the researchers are predisposed to take a rather Western view of the situation and others take a non-Western view. There is very little objective research and it falls to the author to determine the value of the information used to support specific views of the situation. 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 a critical analysis 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. 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. 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. 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: This chapter sets out the conceptual and theoretical framework for the study as well as a statement of the purpose, the project design, methodology and design. Chapter Two: 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 entirely on the UN, the OSCE and Council of Europe. Chapter Four: This chapter will focus on South Ossetia and Abkhazia and the events leading to their respective declarations of independence. This chapter will also present the responses of the international community focusing entirely on the UN, the OSCE and Council of Europe. 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 Council of Europe. 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 Council of Europe 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. It is intended that by drawing on the inconsistencies in the approach taken by the UN, the OSCE and the Council of Europe, these international bodies might pay more attention to 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. Bibliography Bahcheli, T; Bartmann, B. and Srebnik, H.De Facto States: The Quest for Sovereignty. (Routledge, 2004). 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. 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. 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. 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