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South Ossetia

Angelika Nußberger

States, independence — Jurisdiction of states, conflicts — Jurisdiction of states, territoriality principle — Sovereignty — Recognition of states — Self-determination — Territory, title — Secession
Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Rüdiger Wolfrum.

A.  General Aspects

South Ossetia (called ‘Tskhinvali region’ or ‘Samachablo’ by Georgia) is a territory of 3900 square kilometres located within the Caucasus. Its status in international law is controversial. Whereas South Ossetia considers itself to be an independent State since its declaration of independence on 29 May 1992 and has been recognized by five Member States of the United Nations (UN) in the aftermath of the military conflict between Russia and Georgia in 2008 (Russian Federation, Nicaragua, Venezuela, Nauru, and Tuvalu), the Georgian government as well as the majority of Member States of the UN consider it to be a part of the territory of Georgia.

B.  Historical Developments

1.  Earlier Times

The present-day conflict between South Ossetia and Georgia is rooted in a different understanding of historical facts and developments. Whereas Ossetians consider South Ossetia as part of Ossetian territory from ancient times and argue that the Ossetians were always closer to Russia than to Georgia, the Georgians hold that the ancestors of the Ossetians have migrated from their homeland north of the Caucasian mountains into the territory they call Samachablo.

2.  Russian Empire

According to the Ossetian view, Ossetians had joined Russia in the 18th century, long before Georgia was annexed in 1801. South Ossetia and North Ossetia belonged to different administrative parts of the Russian Empire; whereas South Ossetia was part of the department of Tbilissi, North Ossetia belonged to Vladikavkaz.

3.  Russian Revolution

The separation between Ossetians living in North Ossetia and South Ossetia continued after the Russian Revolution. South Ossetia became part of the Menshevik Georgian Democratic Republic which gained independence on 26 May 1918, while North Ossetia was integrated into different territorial configurations within the Russian Soviet Federative Socialist Republic (‘RSFSR’). Insurrections of South Ossetians supporting Soviet Russia were suppressed with violence. In the South Ossetian historiography this is seen as ‘genocide’. The Georgians, on the contrary, interpret the Ossetian support for Russian Bolsheviks as treason which helped the Red Army in re-conquering Georgia in March 1921.

4.  Soviet Union

Based on the contract on the formation of the Union of Soviet Socialist Republics (‘USSR’) from 30 December 1922, Georgia became part of the Transcaucasian Socialist Federative Soviet Republic which made up the Soviet Union together with the Russian Soviet Socialist Republic, the Ukrainian Soviet Socialist Republic, and the Belarus Soviet Socialist Republic. In 1936 Georgia acquired the status of a Union Republic. South Ossetia was granted the status of an Autonomous Region (‘oblast’) within the Georgian Soviet Socialist Republic on 20 April 1922 and remained as such during the whole Soviet period, whereas on 7 July 1924 North Ossetia was accorded the status of an Autonomous Region within the RSFSR and on 5 December 1936 that of an Autonomous Socialist Soviet Republic.

Although the Soviet federal system was under the firm control of the communist leadership, the status of territories within the threefold system composed of Union Republics, Autonomous Republics, and Autonomous Regions did matter, as it was connected to certain rights and administrative powers. In the Union Republics—such as Georgia since 1936—the major nation, ie the Georgians, was recognized as a ‘titular nation’. Theoretically Union Republics had a right to secession on the basis of the Constitution (Art. 17 Constitution USSR [1936]; Art. 72 Constitution USSR [1977]). They also had substantial administrative powers, particularly in the fields of culture and education. Autonomous Republics located within the Union Republics were formally not sovereign, but had State organs such as an executive body and a Supreme Soviet with legislative powers. Autonomous Regions were not considered to have any characteristics of statehood.

The regulation of the rights and duties within the Soviet federal system did not contribute to the solution of the controversies between Georgia and South Ossetia. Whereas Georgians continued to see Ossetians as disloyal, Ossetians kept complaining about Georgian oppression of Ossetian national culture and the denial of minority rights such as the use of their own language in school, and the use of Ossetian alphabet and toponyms.

According to the last census in 1989, 598,000 Ossetians lived in the Soviet Union—68,000 of them in South Ossetia and 164,000 in other parts of Georgia.

5.  Civil War in the 1990s

Disagreement about the status of South Ossetia within the Soviet federal system was the starting point for the violent conflict between South Ossetia and Georgia, which evolved in parallel with the dissolution of the Soviet Union. On 10 November 1989 the Presidium of the Supreme Soviet of Georgia refused the motion of the South Ossetian Regional Soviet to change the status of the Autonomous Region of South Ossetia to that of an Autonomous Republic within Georgia. In November 1989 the first violent clashes occurred which were stopped by troops of the USSR Ministry of the Interior.

10  On 9 March 1990 Georgia declared the contract about the formation of the USSR from 30 December 1922 to be invalid for Georgia. Subsequently, on 20 September 1990 South Ossetia declared its sovereignty as a Soviet Democratic Republic within the USSR. In response to this measure the Georgian Parliament abolished South Ossetia’s autonomy on 11 December 1990. The political controversies led to violent clashes between South Ossetian and Georgian militias, which lasted from December 1990 up to June 1992 and led to heavy losses on both sides. On 24 June 1992 a ceasefire agreement was concluded by the Russian President Yeltsin and the Georgian President Shevardnadse. This so-called Sochi Agreement established joint peacekeeping forces composed of Russian, Georgian, and Ossetian units (Agreement on the Principles of Settlement of the Georgian-Ossetian Conflict of 24 June 1992).

11  Whereas the South Ossetian population took part in the USSR referendum on 17 March 1991 and reportedly voted in favour of the preservation of the Soviet Union, the Georgians organized their own referendum on 31 March 1991 and subsequently restored Georgia’s declaration of independence from 26 May 1918. On 19 January 1992 another referendum was organized in South Ossetia, in which the vast majority declared themselves in favour of independence from Georgia and re-unification with Russia. This referendum was considered to be illegal by Georgia. Nevertheless, it led to the declaration of independence by the de facto South Ossetian Parliament on 29 May 1992. Requests of the de facto South Ossetian Parliament to recognize the independence of the country and/or accept it as part of the Russian Federation were refused by Russia (De facto Regime).

12  Georgia was internationally recognized and became a member of the United Nations on 31 July 1992 within the borders of the former Georgian Soviet Socialist Republic. The territory of South Ossetia was considered to be a part of the new sovereign State.

6.  Frozen Conflict

13  Between 1992 and 2008 the conflict was considered to be ‘frozen’. Joint peacekeeping forces were set up under a joint control commission consisting of representatives of the parties to the conflict, the Republic of North Ossetia, and the Russian Federation. Based on a joint paper adopted on 6 June 1994 the military command was given to the Russian military. In the immediate aftermath of the conflict it was possible to stabilize the situation. On 16 May 1996 a Memorandum on Measures to Provide Security and Strengthen Mutual Trust between the Parties to the Georgian-Ossetian Conflict was signed in Moscow by representatives of Georgia, the Russian Federation, South Ossetia, North Ossetia, and the Organization for Security and Co-operation in Europe (OSCE). According to this agreement the use of force (Use of Force, Prohibition of) was to be excluded as a means of conflict resolution, amnesty should be granted unless war crimes had been committed, and further dialogue and peacebuilding measures were envisaged.

14  The peace process was supported by the OSCE Mission to Georgia set up in November 1992 as well as by the European Union (‘EU’) offering assistance for post-conflict economic rehabilitation.

15  Despite the progress in the peace process made in the years between 1992 and 1999 State-building continued in South Ossetia. On 2 November 1993 the first constitution was adopted, which was replaced on 8 April 2001 (now effective in the version of December 2005). Since 1993 the Chairman of the Supreme Soviet of South Ossetia, Ludwig Chibirov, acted as Head of State before he was elected first President in 1996; the election was not recognized internationally.

16  In 2006 an alternative State-building process started with the support of the Georgian authorities. After the creation of a ‘Salvation Union of Ossetians’ elections were held both in the separatist areas and in the Georgian-controlled areas. The Georgian authorities created a temporary administrative unit comprising three municipalities and appointed the winner of the elections, Dmitry Sanakoyev, an ethnic Ossetian, as head. This move was considered illegitimate by the representatives of the ‘Republic of South Ossetia’.

17  While the conflict resolution process had already slowed down after 1999 with new political leaders coming to power (Kokoity in South Ossetia in 2001 and Saakashvili in Georgia in 2004), it further deteriorated in 2004 because of political and economic controversies which repeatedly led to military confrontations. Neither the joint peacekeeping forces nor the OSCE or the EU succeeded in preventing the outbreak of violence.

C.  Legal Status of South Ossetia

1.  Legal Status of South Ossetia before the Outbreak of the Military Conflict in 2008

(a)  South Ossetia as an ‘Entity Short of Statehood’

18  Before the 2008 war no UN Member State had formally recognized South Ossetia as a subject of international law (Subjects of International Law). With the recognition of Georgia’s independence and Georgia’s accession to the United Nations on 31 July 1992, South Ossetia’s declaration of independence of 29 May 1992 was implicitly declared to be legally irrelevant. This position was universally accepted up to the outbreak of the military conflict in August 2008 with the exception of the other break-away territories in the post-Soviet space, Abkhazia (recognition on 17 November 2006) and Transnistria (recognition on 17 November 2006). On 15 April 2008 the UN Security Council unanimously passed Resolution 1808 which reaffirmed the commitment of all UN Member States to the sovereignty, independence, and territorial integrity of Georgia within its internationally recognized borders.

19  Yet, according to the declaratory theory of recognition, which is predominantly espoused by State practice and international legal scholarship, recognition is not constitutive of a State. A defined territory, a permanent population, and an effective government are seen as minimal, but sufficient preconditions for statehood.

20  The requirement of a core territory was met in the case of South Ossetia despite the fragmented character of the territory controlled by the newly created South Ossetian authorities and the controversies over the delimitation and status of the boundaries. It is also possible to argue that there was an ‘aggregate of individuals’ living on the territory of South Ossetia, although there was a permanent flux of the population due to migration and forced eviction. The criterion of an ‘effective government’ was, however, missing. Due to the fact that the majority of the citizens had acquired Russian nationality on the basis of the Russian passportization policy, Russia could claim personal jurisdiction over them. Furthermore, Russian officials had de facto control over South Ossetia’s institutions, especially over the security institutions and security forces. Instead of gradually stabilizing South Ossetia’s independence after 1992, the process of State-building suffered setbacks after 2004.

21  South Ossetia’s self-assessment concerning its legal status before 2008 was not consistent either. In the first so-called referendum held on 19 January 1992 the majority of the voters opted for independence from Georgia and integration into Russia. In the declaration of independence adopted on 29 May 1992, however, the Supreme Soviet declared ‘the independence of South Ossetia and establishment of the independent State of South Ossetia’. This is repeated in Art. 1 Constitution (Organic Law) of the Republic of South Ossetia, adopted on 8 April 2001: ‘The Republic of South Ossetia is a sovereign democratic State based on law, which has been established by the right of nationals to self-determination’. This declaration is difficult to reconcile with the fact that the majority of South Ossetians acquired Russian nationality, a process that had already started before the 2008 war.

22  On the basis of these findings South Ossetia cannot be qualified as a ‘State’ before the outbreak of the 2008 war. It is controversial, however, how to define the status of a territory which is under de facto jurisdiction of newly established, yet not independent authorities and at the same time legally belongs to a Member State of the United Nations. In line with the EU ‘Report of the Independent International Fact-Finding Mission on the Conflict in Georgia’ South Ossetia can be considered an ‘entity short of statehood’ (at vol II, 134). In the legal literature it was proposed to characterize it as a ‘stabilised de facto regime’ which enjoys partial international subjectivity (Luchterhandt 457). Yet, this categorization is based on the assumption that, even if there is no international recognition, all substantial criteria for the existence of a State are fulfilled. In South Ossetia, however, effectiveness of the government is not sufficiently present. In this regard the categorization of South Ossetia by the EU Fact-Finding Mission differs from that of Abkhazia which is seen as a ‘State-like entity’. On a scale going from non-State to full-fledged State, Abkhazia would be closer to a State than South Ossetia.

23  Nevertheless, State practice in the 1990s showed that South Ossetia was treated as a partial subject of international law since it was accepted as a partner in setting up the joint peacekeeping forces under the joint control commission and in drawing up the Memorandum of 1996 (see above para. 13). This fact should, however, not be overestimated, as the same legal status was accorded to the Republic of North Ossetia which forms a part of the Russian Federation. Furthermore, it is important to note that the Sochi Agreement (see above para. 10) was concluded between the Russian Federation and Georgia.

(b)  Applicability of Arts 2 (4) and 51 United Nations Charter to South Ossetia

24  It is also not unequivocal in how far State practice before the outbreak of the war confirmed the applicability of Arts 2 (4) and 51 UN Charter to South Ossetia. As a rule, internal disputes, even those involving stabilized regimes, are considered as domestic matters. Yet, the situation in Georgia is different from other internal conflicts because of the existence of specific regulations elaborated in the 1990s between the conflicting parties and representatives of the international community (see above paras 10, 13). The preambles of these agreements explicitly refer to the provisions of the UN Charter, thus suggesting their applicability. On the other hand a special clause is dedicated to the abstention of the sides of the conflict from the use of force which would not be necessary if Art. 2 (4) UN Charter was applicable per se. The EU report left the question open (see below para. 28). It is argued that UNGA Res 3314 (XXIX) ‘Definition of Aggression’ of 14 December 1974 (GAOR 29th Session Supp 31 vol 1, 142) would be applicable to the relationship between Georgia and South Ossetia as it defines ‘State’ ‘without prejudice to questions of recognition or to whether a State is a member of the United Nations’ (Henderson and Green 134). Yet, the broad approach of the Resolution cannot be transferred to entities which do not even have the minimum requirements of statehood.

(c)  Scope of the Right to Self-Determination

25  As the Ossetians form a ‘people’ under international law, they are endowed with the right to self-determination. This applies also to the sub-group of the Ossetian people living on the territory of the South Ossetian Autonomous Region established under Soviet law. While they were entitled under international law to request political representation and preservation of their cultural identity both within the Soviet legal system and, subsequently, within the Georgian legal system, the right to self-determination could not be interpreted as giving a right to a certain legal status. The request to transform the South Ossetian Autonomous Region into an Autonomous Republic could therefore not be based on international law. Neither could the principle of uti possidetis (Uti possidetis Doctrine) be applied since—contrary to the status of a Union Republic—the status of an Autonomous Region was not relevant for the determination of the internal borders within the Soviet Union.

2.  Military Conflict in South Ossetia in August 2008

26  There is no consensus on the question of international responsibility for the outbreak of the military intra-State conflict between South Ossetia and Georgia which was at the same time also an inter-State conflict as it involved Russia (and the other break-away territory of Georgia, Abkhazia). Large-scale use of violence started in the night of 7 to 8 August 2008 and lasted officially up to the adoption of the EU-brokered Six-Point Ceasefire Agreement between Russia and Georgia on 12 August 2008. Violence continued, however, even after that date. Russian troops finally withdrew to the positions they had held prior to the outbreak of hostilities on 9 October 2008 with the exception of the little Georgian town of Perevi, which was left only on 18 October 2010.

27  The conflict took place exclusively within the internationally recognized borders of Georgia. The applicability of the prohibition of use of force was therefore controversial, as Art. 2 (4) UN Charter applies only if use of force is directed against the ‘territorial integrity and political independence of any State’ and South Ossetia could not be qualified as a ‘State’ with a view to Georgia. Nevertheless, the prohibition on the use of force was deemed to be applicable because all the agreements concluded in the course of the process of conflict settlement (see above para. 24) contained references to the UN Charter and the Helsinki Final Act (1975), and implicitly or explicitly excluded the use of force.

28  The military clashes between Georgian troops and South Ossetian militias as well as the shelling of Tshinvali, which led to many civilian victims, preceded the clashes between Georgian and Russian troops. The basic controversial question was if the Georgian armed attack based on President Saakashvili’s order given on 7 August 2008 at 11:35 pm was justified on the basis of Art. 51 UN Charter as self-defence against military operations of South Ossetian militia. Whereas the Georgian side answered this question in the positive and the South Ossetian side in the negative, the Independent International Fact-Finding Mission on the Conflict in Georgia, which had been installed by the EU, came to the conclusion that on-the-spot reactions by Georgian troops were necessary and proportionate (Proportionality) to counter the attacks of the Ossetian militia, but not the large-scale offensive started on 7 August 2008. South Ossetia was seen to have violated the prohibition of the use of force by shooting Georgian villagers, police, and peacekeepers before the outbreak of the conflict. After Georgia’s armed attack, however, South Ossetia’s military actions were seen to be justified as self-defence.

29  The clashes between Georgia and South Ossetia have to be analysed within the context of the military confrontation between Russia and Georgia. Russia justified its intervention in the conflict by various arguments: as self-defence against a Georgian attack on the Russian peacekeepers deployed in South Ossetia, as fulfilment of the peacekeeping mission, as answer to an invitation by the South Ossetian authorities (Intervention by Invitation), as collective self-defence, as humanitarian intervention, and as action to rescue and protect nationals abroad. All these arguments were, however, refuted by the Independent International Fact-Finding Mission on the Conflict in Georgia with the exception of the argument of self-defence against a Georgian attack on Russian peacekeepers. Nevertheless, the Russian reaction was not seen as necessary and proportionate to the aim pursued.

30  The Six-Point Ceasefire Agreement precluded the recourse to the use of force, stipulated a lasting cessation of hostilities, and provided for access to humanitarian aid providers. It prescribed that Georgian forces had to withdraw to their usual barracks and Russian forces had to go back to the positions held prior to the outbreak of hostilities. Pending an international peace monitoring mechanism, Russian peacekeepers were allowed to take additional security measures. Furthermore, it was agreed to launch international discussions on security and stability arrangements for Abkhazia and South Ossetia.

3.  Controversy about South Ossetia’s Right to Secession after the Military Conflict

(a)  Developments after the 2008 War

31  The situation of South Ossetia has substantially changed since the military conflict. First, the Georgian population living in the parts of South Ossetia which had still been under Georgian jurisdiction before the war left their homes or were forcibly evicted. Second, the independence of South Ossetia was officially recognized by the Russian Federation on the basis of a presidential decree of 26 August 2008. Subsequently, it was also recognized by Nicaragua on 5 September 2008, by Venezuela on 10 September 2009, by Nauru on 15 December 2009 and by Tuvalu on 19 September 2011. They all established diplomatic relations with South Ossetia. All other UN Member States either did not react or confirmed Georgia’s territorial integrity within the boundaries of 1992. International organizations such as the EU, the North Atlantic Treaty Organization (NATO), and the OSCE condemned the unilateral recognition of South Ossetia as a violation of Georgia’s territorial integrity. Third, the Georgian Parliament formally declared South Ossetia to be an ‘occupied territory’ on 28 August 2008 and on 23 October 2008 passed a Law on Occupied Territories of Georgia. Fourth, on 17 September 2008 the Russian Federation concluded a Treaty on Friendship, Cooperation and Mutual Assistance with South Ossetia, followed on 20 January 2009 by a Memorandum on Mutual Understanding between the Ministry of Foreign Affairs of the Russian Federation and the Ministry of Foreign Affairs of the Republic of South Ossetia and several other international agreements in the fields of fight against criminality, protection of borders, military cooperation, as well as economic and social cooperation. On 7 April 2010 a treaty on a Russian military basis in South Ossetia was concluded.

(b)  Rights to Self-Determination and Secession

32  South Ossetia’s right to self-determination and secession after the 2008 war is controversially debated. On the basis of the so-called savings clause in the Friendly Relations Declaration (1970) it is argued that secession must be possible as ultima ratio in cases in which the right to internal self-determination is persistently denied to a people and when all peaceful and diplomatic means to establish a regime of internal self-determination have been exhausted. Scenarios invoked in this context are above all violations of basic human rights, (attempted) genocide, and the complete suppression of minority rights by despotic governments. Yet, although there is a tendency in legal literature to support a right of secession in such cases, it is not confirmed by State practice. Outside the colonial context since 1945 no State created by unilateral secession has been admitted to the United Nations against the explicit will of the State from which it separated.

33  The main argument put forward by Russia and South Ossetia to support a right to secession is the case of Kosovo which is interpreted to have created a precedent. However, even if Kosovo is not interpreted as sui generis and the two cases are seen to be parallel, a single case leading to a major dispute within the international community is not apt to create a new rule of international law. On the contrary, the continuing controversies show that there is no opinio iuris which would confirm new practice reflecting a new rule of customary international law.

34  The perception of South Ossetia as an ‘entity short of Statehood’ has thus not changed. This is also evinced by the refusal of all but four UN Members to follow suit in Russia’s decision to recognize the independence of South Ossetia. It is also in accordance with the attitude displayed by all major international organizations, such as the United Nations, the EU, the Council of Europe (COE), the Collective Security Treaty Organisation (CSTO), the OSCE, and the Shanghai Cooperation Organisation. None of them has recognized South Ossetia as an independent State.

35  Nevertheless, it may be claimed that South Ossetia is a partial subject of international law as it has entered into contractual relations with the five States having recognized it. State practice can also be interpreted as implicitly applying the prohibition of the use of force in order to avoid a resurgence of military violence. Neither the status of South Ossetia as a partial subject of international law nor the prohibition of the use of force have, however, been recognized within the on-going international mediation process, the so-called Geneva talks.

(c)  Cooperation among the Unrecognized States

36  In 2001 three of the regions of the former Soviet Union which were denied recognition by the international community—Abkhazia, South Ossetia, and Transnistria—concluded an agreement regarding the creation of a ‘Commonwealth of Unrecognized States’ (Sodruzhestvo nepriznannykh gosudarstv). In 2006 they founded the ‘Community for Democracy and Peoples’ Rights’ (Soobshchestvo za demokratiju i prava narodov). In 2007 they adopted—together with Nagorno Karabakh—a joint declaration on principles of peaceful and fair settlement of the conflicts they are involved in. In 2009 they concluded an agreement on the abolition of the visa regimes for their citizens. Yet, despite some elements of institutionalization, eg the nomination of a secretary general, the cooperation cannot be seen as an international organization.

D.  Contribution of the Discussion on South Ossetia to the Development of International Law

37  The discussion on the legal status of South Ossetia and on the responsibility for the outbreak of the Russian-Georgian war in August 2008 has contributed to the evolution of international law in many respects. The assessment of the use of force in an internal conflict poses new challenges, if the force is directed against a break-away territory which is not only under the de facto jurisdiction of a newly established regime, but also controlled by an international peacekeeping mission. At the same time the case is an example of the limits of the right to self-defence in a situation in which not the territory of a State, but only peacekeeping soldiers stationed outside the borders of the country are attacked. The case is also discussed together with the 1999 NATO bombing in Serbia as a precedential incident contributing to the emergence of the doctrine of humanitarian intervention. Furthermore, specific problems are to be solved with a view to the use of force in order to rescue and protect nationals abroad, especially if the nationals have been ‘created’ by the random distribution of passports to a minority population living in the territory of another State.

38  The recognition of South Ossetia by five UN Member States raises many problems concerning the scope of the right to self-determination and the preconditions of the right to secession outside the colonial context. In this context it also tends to be discussed together with the case of Kosovo.

39  Furthermore, the conflict is the first to be treated by the International Court of Justice (ICJ) and at the same time by the European Court of Human Rights (ECtHR). The jurisdiction of the ICJ has been evoked on the basis of Art. 22 International Convention on the Elimination of All Forms of Racial Discrimination ([opened for signature 7 March 1966, entered into force 4 January 1969] 660 UNTS 195). Yet, on 1 April 2011 the ICJ found that it had no jurisdiction to decide the dispute. Before the ECtHR an inter-State complaint is pending; it was declared admissible on 30 June 2009 (Human Rights, State Complaints). Both courts had ordered provisional measures immediately after the war. Furthermore, for the first time the EU appointed a fact-finding mission on a conflict with the aim of investigating the origins and the course of the conflict with regard to international law, humanitarian law, and human rights. The case of South Ossetia is thus an example of post-conflict studies and analyses both on a judicial and on a quasi-judicial basis.

40  The consequences of the conflict in South Ossetia are not only debated in international law, but also in international politics, above all as the reactions to the hostilities have once again shown the fault-lines of the Cold War. At the same time the deficiencies of international mechanisms for conflict resolution and conflict management were brought to the fore. The UN Security Council functioned neither in the prevention nor in the resolution of the conflict with one of its permanent members being involved. The same was true for international peacekeeping mechanisms in which one party to the conflict played at the same time the role of a neutral arbiter and of an interested party.

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