Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia

Dr Tarcisio Gazzini is Associate Professor at the VU University Amsterdam. He has previously taught at the Universities of Padova (Italy) and Glasgow (UK_. He is an alternate member of the ILA Committee on Non-State actors and a member of the editorial board of the Leiden Journal of International Law. His publications include The Changing Rules on the Use of Force in International Law, Manchester University Press (2005).   

The recently published Report of the EU’s Independent Fact-Finding mission on the conflict(s) in Georgia can be considered in many respects as a successful experiment and a significant contribution to the establishment of the causes of the conflict(s) and the violations of jus ad bellum and of jus in bello.

Although the report offers several elements for reflection to international lawyers, this short comment focuses on the legal status of South Ossetia and Abkhazia which is crucial for the purpose of attributing international responsibility for violations of international law committed by these entities and their forces; qualifying the armed conflicts between Georgia and these entities, and identifying the applicable law, including the rules governing the use of military force and humanitarian law.

Legal Status of South Ossetia and Abkhazia

The question is discussed essentially in the first two sections of Chapter 3. The report seems to accept the view – clearly predominant in State practice and literature – that recognition is not a constitutive element of statehood. (see for eg, the Arbitral Commission of the Peace Conference in Yugoslavia, Opinion No. 1, 31 ILM (1992) 1494, ‘the existence and disappearance of the state is a question of fact’.) As a result, statehood needs to be determined on the basis of factual elements or criteria, although these criteria, according to the report, have not authoritatively been defined yet.

The report continues by listing three ‘minimal pre-conditions’ for statehood: (1) defined territory; (2) permanent population and (3) effective government. It then refers to the respect of legal principles of international law, notably self-determination and the prohibition to use force, as ‘additional standards’ for the qualification of an entity as a State (pages 127-8). The reader may have the impression that an entity must satisfy cumulatively ‘minimal pre-conditions’ and ‘additional standards’ before claiming statehood.

The report introduces three categories of entities: (1) (full) states fulfilling the relevant criteria for statehood and universally recognised; (2) state-like entities fulfilling the relevant criteria, but which are not, or not universally, recognised; and (3) entities short of statehood not fulfilling the relevant criteria, or only some of them, or only in a weak form, but eventually recognised by one or more states (page 128).

Next, it applies the ‘minimal pre-conditions’ to South Ossetia and Abkhazia and admits that both entities satisfy the first two (defined territory and permanent population). With regard to the government, it seems to concede that the government of South Ossetia is effective as it is confirmed later in the report by the reference to the ‘jurisdiction of South Ossetia’ and the qualification of the military operations carried out by South Ossetia forces in Georgia as ‘equivalent to an armed attack to the “territory of another State”’ (page 244). However, according to the Report, the South Ossetia government fails the independence test due to the systematic and permanent influence exercised by the Russian Federation and therefore is treated as an entity short of statehood (category 3 above).

According to the Report,

Russia’s influence on and control of the decision-making process in South Ossetia concerned a wide range of matters with regard to the internal and external relations of the entity. The influence was systematic, and exercised on a permanent basis. Therefore the de facto Government of South Ossetia was not “effective” on its own (page 133).

Abkhazia, on the contrary, is considered as a state-like entity being its government both sufficiently effective and independent. In this respect the Report points out that Abkhazia

has expressed its clear will to remain independent from Russia, even if its policies and structures, particularly its security and defence institutions, remain to a large extent under control of Moscow. Abkhazia is more advanced than South Ossetia in the process of state-building and might be seen to have reached the threshold of effectiveness. (page 134)

Nonetheless, the Report recommends not recognizing Abkhazia as the state-building process is not legitimate while the entity never had the right to secede and does not meet the basic requirements concerning human and minorities rights. [i]

The Report further clarifies that there is no right to secession under international law. Its position is summarised in a paragraph which reads:

‘outside the colonial context, self-determination is basically limited to internal self-determination. A right to external self-determination in form of a secession is not accepted in state practice. A limited, conditional extraordinary allowance to secede as a last resort in extreme cases is debated in international legal scholarship. However, most authors opine that such a remedial “right” or allowance does not form part of international law as it stands. The case of Kosovo has not changed the rules’ (p. 141).

The Report also points out that even assuming for the sake of the argument that international law provides for the right of remedial secession, the report excludes that this would have been the case of Abkhazia since the entity could have otherwise satisfied its claims.

The legal status of entities like South Ossetia and Abkhazia has traditionally proved extremely problematic. An entity becomes a subject of international law through an incremental process leading to the creation of an effective and independent government. However difficult is to establishing when the process is completed, the existence of the international subject is a question of fact.

The question of the existence of the subject must be kept separate from that of the responsibility for and consequences of violations of international law – especially human and minorities rights. Pretending that the subject does not exist due to the way it has been formed or its disregard for international law would make the allocation of international responsibility for the conduct of the subject impracticable. It also runs against the general ratio of international law which consists in regulating – to the extent it is possible – the relationships between independent entities, regardless to where and how they came into existence (see . G. Arangio-Ruiz, Diritto internazionale e personalità giuridica, Bologna, 1972, p. 103.)

It is also argued that the ‘additional standards’ referred to in the report do not prevent an effective and independent government from being treated as a subject of international law. Violations of international law committed by such a government do not affect – indeed may demonstrate – its international subjectivity. However, these violations are certainly relevant for the purpose of recognition which can be refused or used as leverage to induce compliance. This is without prejudice to the rights and obligations that States may have in relation of the conduct of the new subject, including the adoption of economic sanctions in accordance with international law.

Furthermore, the existence of the new subject is not dependent on the (alleged) right to secession, which according to the report is not part of current international law. The report here misses the real point since

[t]here is no international norm prohibiting secession and therefore it is difficult to see an actual need for such a norm [authorising secession]. […] still it would not make much sense to speak about a ‘right to secession’. (G. Abi–Saab, “Conclusions”, in M. Kohen (ed.), Secession – International Law Perspectives (Cambridge: Cambridge University Press, 2006), 470-76, at 474)

International Responsibility for Acts Committed by South Ossetia and Abkhazia

Without discussing the merits of the findings on the legal status of South Ossetia and Abkhazia, it must be noted that their respective status are radically – not slightly (page 134) – different, especially from the standpoint of the attribution of responsibility for violation of international law.

The Report does not fully discuss the question of the responsibility for acts committed by South Ossetia and Abkhazia. It only touches upon the question when it qualifies the relevant conflicts for the purpose of the application of humanitarian law (Chapter 7, section II). It summarily refers to the Nicaragua and Tadic cases – while neglecting the decision by the European Court of Human Rights related to Northern Cyprus and the recent Genocide case. It eventually leaves unanswered the question whether the Russian Federation is responsible for the acts committed by the forces of South Ossetia – as claimed by Georgia (page 304) – due to the control it exercises over the de facto government.

Although the kind and degree of control an entity must exercise over a de facto government in order to be held responsible for its conduct is not entirely clear, an affirmative answer seems coherent with the finding on the legal status of South Ossetia and consistent with the evidence produced in the Report. A negative answer, in turn, would imply that no international subject would be held responsible for the acts committed by the forces of the effective but not independent government of South Ossetia.

On the contrary, if it is accepted that the government of Abkhazia is both effective and independent government, it follows that it bears international responsibility for the acts committed by its organs, including its armed forces.

International Responsibility for Acts Committed by South Ossetia and Abkhazia as well as their forces

With regard to the rules on the use of force, the Report argues that South Ossetia, although an entity short of statehood, is at once bound by the prohibition on the threat or use of military force and entitled to exercise the right to individual – but not collective – self-defence. On this point the Report reads:

Individual self-defence and collective self-defence are not logically linked, especially where the right to individual self-defence flows, as here, not unequivocally from Charter law or customary law, but mainly or even exclusively from the special treaties between the sides. The right to individual self-defence is a necessary counterpart to the prohibition on the use of force. If South Ossetia is bound to refrain from the use of force, it must in consequence also be entitled to defend itself. These two concomitant rules serve to appease the conflict. It is another question whether military intervention in the form of collective self-defence is allowed. Such a right would not de-escalate, but escalate the conflict and therefore run counter to the objectives of the United Nations.(page 282)

The application of the prohibition on the use of force to South Ossetia and the recognition that the latter may resort to force in self-defence can be reconciled with its legal status only by considering it as a de facto organ of the Russian Federation. From this perspective, the Russian Federation would be both the addressee of the prohibition and the victim of the armed attack triggering the defensive military reaction.

What is curious is the discussion on the alleged request by South Ossetia to the Russian Federation for intervention in self-defence. The degree of influence and control exercised by the latter on the former would immediately affect the genuineness of the request. Equally curious is the separation of individual and collective right to self-defence. It is argued that such a separation has no foundation either in the United Charter or in customary international law. At any rate, considering collective self-defence in this context would be inappropriate given the relationship existing between South Ossetia and the Russian Federation.

The application of the customary rules on the use of force between Georgia and Abkhazia, on the contrary, is the logical consequence of the legal status attributed to the latter.

Qualification of the conflicts between Georgia and South Ossetia and between Georgia and Abkhazia

The qualification of the conflicts between Georgia and South Ossetia and between Georgia and Abkhazia raises equally interesting questions. The Report concludes that

the hostilities between South Ossetia and Abkhazia on the one hand, and Georgia on the other, are governed by the IHL applicable to non-international armed conflict, since both are recognised internationally as being part of Georgia and, at the time of the 2008 conflicts, this was undisputed (page 300).

This is a remarkable conclusion. On the one hand, it clearly contradicts the finding that the military operations carried out by South Ossetia forces against Georgian villages are ‘equivalent to an armed attack to the “territory of another State”’ (page 244). On the other hand, it is inconsistent with the determination on the legal status of both South Ossetia and Abkhazia.

It is submitted that both conflicts are international precisely because South Ossetia and Abkhazia were under the effective control of subjects of international law other than Georgia.

At any rate, the Report seems to pay little attention on the qualification of the conflict for the purpose of the application of international humanitarian law. In the words of the Mission,

although the classification of an armed conflict as international or non-international is important in terms of the responsibilities of the various parties involved, when it comes to the effective protection by IHL of the persons and objects affected by the conflict it does not make much difference. Indeed, it is generally recognised that the same IHL customary law rules generally apply to all types of armed conflicts (page 304).

This view is not entirely accurate as a distinction must be made between customary rules applicable only to international conflicts and those applicable to both international and non-international conflicts, depending on whether State practice and opinio juris are limited to the former category of conflicts or both.

Concluding remarks

In spite of some ambiguity and a couple of contradictions – to a certain extent unavoidable in this kind of reports – it may be concluded that the Report manages to uphold the principle of effectiveness which pervasively underpins the international legal order.

In this respect, the report must be praised for applying – equally – international law, notably the rules on the use of force and humanitarian law, in the relationships between Georgia and South Ossetia as well as between Georgia and Abkhazia. The reasoning through which the Report achieves such a result, however, remains less convincing.

Finally, the Report demonstrates that the legal status of an entity like South Ossetia or Abkhazia determines at once and on the basis of the very same criteria: (a) the rules governing its relationship with subjects of international law (including those on the use of force); (b) the attribution of international responsibility; and (c) the qualification of the conflict for the purpose of humanitarian law.

[i] The reference to legitimacy calls for an analysis which goes beyond the purpose of this short note. I take however the liberty of mentioning the contribution of Italian scholarship to the discussion. According to D. Anzilotti, Cours de droit international, Paris, 1929, vol. I, p. 169, “il n’y a pas d’Etats légitimes et d’Etat illégitime; la légitimation de l’Etat réside dans son existence même”. See also G. Arangio-Ruiz, Sulla dinamica della base sociale nel diritto internazionale, Annali della Facoltà Giuridica, Camerino, 1954, especially pp. 99 ss.; A.P. Sereni, Diritto internazionale, vol. II, Organizzazione internazionale, Milano, 1958, p. 766; R Quadri, Diritto internazionale pubblico, Napoli, 1968, p. 458.