ABKHAZIA, KOSOVO AND THE RIGHT TO EXTERNAL SELF-DETERMINATION OF PEOPLES
Abstract
On 26 August 2008 the Russian Federation recognized the independence of Georgia’s breakaway provinces of Abkhazia and South Ossetia. In the statement that explained the reasons for Russia’s recognition, President Dmitry Medvedev referred to the “freely expressed will of the Abkhaz and Ossetian peoples” and to several fundamental international instruments that stress inter alia the principle of self-determination of peoples, notably the U.N. Charter, the 1970 U.N. General Assembly Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States (U.N. General Assembly Resolution 2625) and the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe (CSCE). Medvedev also specified that Abkhazians and South Ossetians had the right to decide their destiny by themselves in the light of Georgia’s allegedly genocidal policies in South Ossetia and the existence of similar plans for Abkhazia.1
Therefore, in the August 2008 crisis Russia supported the controversial principle of external self-determination of peoples in exceptional circumstances, which it had fiercely opposed until then, most notably in the case of Kosovo’s declaration of independence. External self-determination implies “the right of every people to choose the sovereignty under which they live”. The concept of external self-determination is broader than that of internal self-determination, which refers primarily to “the right of peoples to select their own form of government” within a sovereign state.2 Internal self-determination thus concerns the granting of minority rights, regional autonomy regimes or federalism within an existing state. On the other hand, external self-determination refers in particular to the right to establish an internationally recognized independent state to represent a people. In other words, external self-determination implies the separation of a sub-group of a state with the consent of the central government, or its secession without the consent of the state concerned, and the establishment of a new state. Considering that international law is dominated by sovereign states and that secession poses a threat to their territorial integrity, the principle of external self-determination constitutes a very controversial issue.
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See: “Medvedev’s Statement on South Ossetia and Abkhazia,” The New York Times, 27 August, 2008, availa-ble at [http://www.nytimes.com/2008/08/27/world/europe/7iht-27medvedev.15660953.html], 31 January, 2011.
See: B. Neuberger, “National Self-Determination: Theoretical Discussion,” Nationalities Papers, Vol. 29,No. 2, 2001, p. 392.
See: B. Neuberger, “National Self-Determination: ilemmas of a Concept,” Nations and Nationalism, Vol. 1,No. 3, 1995, pp. 297-325.
See, for instance, the frequently cited definition by the Rapporteur of the U.N. Sub-Commission on Preventionof Discrimination and Protection of Minorities Aurelieu Cristescu, in: A. Cristescu, The Right to Self-Determination,United Nations publications, New York, 1981, pp. 2-16.
See: D. Archibugi, “A Critical Analysis of the Self-determination of Peoples: A Cosmopolitan View,” Constel-lations, Vol. 10, No. 4, 2003, pp. 489-492; H. Quane, “The United Nations and the Evolving Right to Self-determina-tion,” International and Comparative Law Quarterly,Vol. 47, No. 3, 1998, p. 537; M. Koskenniemi, “National Self-determination Today: Problems of Legal Theory and Practice,” The International and Comparative Law Quarter-ly, Vol. 43, No. 2, 1994, pp. 241-269.
See: Charter of the United Nations, Arts 1 and 55, available at [http://www.un.org/en/documents/charter/], 31 Jan-uary, 2011; International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, 16 December, 1966, available at [http://www2.ohchr.org/english/law/index.htm], 31 January, 2011.
See: A. Cassese, Self-determination of Peoples: A Legal Reappraisal, Cambridge University Press, Cambridge, 1995,pp. 41-43, 52-53; Charter of the United Nations, Arts 1, 2, and 55; International Covenant on Civil and Political Rights,Art 1; International Covenant on Economic, Social and Cultural Rights, Art 1.
See: H. Krueger, “Implications of Kosovo, Abkhazia and South Ossetia for International Law,” Caucasian Review of International Affairs, Vol. 3, No. 2, 2009, pp. 122-123, available at [http://cria-online.org/7_2.html], 31 January, 2011);D. Archibugi, op. cit., pp. 488, 496-498.
See: Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States,U.N. General Assembly Resolution 2625, 24 October, 1970, available at [http://www.un.org/documents/ga/res/25/res25.htm], 2 April, 2010.
See: A. Cassese, op. cit., pp. 118-123.
See: H. Krueger, op. cit., p. 127.
See: A. Cassese, op. cit., pp. 285-286.
See: Conference on Security and Co-operation in Europe Final Act, Principle VIII, available at [http://www.
sce.org/who/43960], 31 January, 2011.
Conference on Security and Co-operation in Europe Final Act, Principles I, IV, VIII and X.
See: H. Krueger, op. cit., p. 128; Conference on Security and Co-operation in Europe Final Act, Principles I,IV and VIII.
See: H. Krueger, op. cit.; Report of the Independent International Fact-Finding Mission on the Conflict in Geor-gia, Vol. I, p. 17; A. Nussberger, “The War between Russia and Georgia — Consequences and Unresolved Questions,”Göttingen Journal of International Law, Vol. 1, No. 2, 2009, pp. 347-348.
See: A. Nussberger, op. cit., pp. 348-349; A. Cassese, op. cit., pp. 120-123, 359-362. For a more detailed analy-sis of the issue of humanitarian intervention, see: H. Neuhold, “Human Rights and the Use of Force,” in: Liber amicorum Luzius Wildhaber, ed. by St. Breitenmoser et al., Zürich, St. Gallen and Baden-Baden: Dike, 2007, pp. 479-498.
See: H. Neuhold, “The United Nations as a Security Organization: The Balkan Laboratory”, in: Studies in Applied International Law, ed. by Ch. Benicke et al., Giessen, 2007, p. 16.
See: “Council Conclusions on Kosovo, 2851st External Relations Council Meeting, Brussels, 18 February, 2008,”in: H. Krueger, op. cit., pp. 133-134.
See: H. Krueger, op. cit., pp. 134-135; Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol. I, pp. 140-141.
On the ICJ advisory opinion, see: H. Krueger, “Was Kosovo’s Split-off Legitimate? Background, Meaning and Implications of the ICJ’s Advisory Opinion,” Caucasian Review of International Affairs, Vol. 4, No. 3, 2010, available at [http://cria-online.org/12_7.html], 30 January, 2011. The advisory opinion of the ICJ on Kosovo is available at [www.icj-cij.org/docket/files/141/16012.pdf], 31 January, 2011.
See: Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol. II, p. 140.
See: W. Benedek, “Implications of the Independence of Kosovo for International Law,” in: International Law between Universalism and Fragmentation, Liber amicorum in Honour of Gerhard Hafner, ed. by I. Buffard et al., Nijhoff Publishers, The Hague, 2008, p. 411.
For human rights violations in Abkhazia, see: Report of the Secretary-General’s Fact-Finding Mission to Inves-tigate Human Rights Violations in Abkhazia, Republic of Georgia, 17 November, 1993 (quoted from: Report of the Inde-pendent International Fact-Finding Mission on the Conflict in Georgia, Vol. II, p. 146).
See: Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol. I, pp. 22-23 and Vol. II, pp. 195-197; B. Harzl, “Conflicting Perceptions: Russia, the West and Kosovo,” Review of Central and East European Law, Vol. 33, No. 4, 2008, p. 508; M. Weller, “Settling Self-determination Conflicts: Recent Developments,” The European Journal of International Law, Vol. 20, No. 1, 2009, p. 134; A. Nussberger, op. cit., p. 362.
See: W. Benedek, op. cit., p. 403; D. Tolksdorf, “Kosovo Precedent—Applicable in Many Parts of the World, but Not Directly in the South Caucasus,” Caucasian Review of International Affairs, Vol. 3, No. 1, 2009, pp. 106-107, availa-ble at [http://cria-online.org/6_10.html], 31 January, 2011.
See: Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol. II, pp. 80-91.he text of the Moscow Ceasefire Agreement is available at [http://www.unomig.org/data/moscow_agreement.pdf], 31 Jan-uary, 2011.
See: B. Harzl, op. cit., pp. 491, 508-518.
See: H. Krueger, op. cit., pp. 136-137.
See: Ibid., pp. 141-142; B. Harzl, op. cit., p. 513.
See: A. Cassese, op. cit., p. 364.
See: B. Harzl, op. cit., p. 502; D. Archibugi, op. cit., pp. 488-489; R. Muzalevsky, “The Russian-Georgian War:
Implications for the U.N. and Collective Security,” Journal of Central Asian and Caucasian Studies, Vol. 4, No. 7, 2009,pp. 35-39.
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