Today the Russian President Medvedev signed decrees to the effect that the Russian Federation recognizes South Ossetia’s and Abkhazia’s independence (a Kremlin translation of Medvedev’s televised address can be found here).
With this the Russian President caused a further deterioration of the already strained relations with the West initially caused by the armed conflict in the two Georgian regions, Ossetia and Abkhazia. Without wanting to go into any details of the political consequences of today’s announcement of the Russian President, from a legal perspective the question arises what effect the recognition might have.
First of all it should be underlined that the recognition itself does not make two new States out of the breakaway regions of Georgia. In order to acquire statehood both Ossetia and Abkhazia would rather have to meet the requirements set up by the so-called doctrine of three elements (Dreielementenlehre), i.e. have a defined territory, a permanent population and an (effective) government (the doctrine was first formulated by Georg Jellinek in his book Allgemeine Staatslehre). These three criteria are also laid down in Art. 1 Montevideo Convention on Rights and Duties of States and it seems to exist a consensus in international law regarding their necessity to acquire statehood.
Coming back to the recognition it is moreover widely accepted that a recognition of an entity which not already objectively meets the criteria for statehood mentioned above does not have constitutive effect (i.e. the recognition does not provide the entity with legal personality from the viewpoint of international law). The constitutive theory certainly has some support when looking at the history of international law and international relations. Anzilotti and Kelsen, for example, were two very prominent supporters of the idea that a State did not exist for the purpose of international law unless it had been recognized. To take an example from State practice, the recognition of the German Democratic Republic (East Germany) in 1973 had a constitutive effect at least with regard to the Western powers who previously had considered the establishment of a State in eastern Germany to be a breach by the Soviet Union of obligations under treaties concluded with the other allies over the administration of Germany after the Second World War. However, today it is the prevailing view that recognition follows the declaratory theory according to which the recognition has no legal effects and the existence of a State is merely a question of pure fact. This is e.g. supported by the above mentioned Montevideo Convention which in Art. 3 states:
“The political existence of the state is independent of recognition by the other states.”
In other words recognition might have evidential value regarding the fulfilment of the three criteria of statehood (see above); but it does not itself have the potential to create a State. This leads to the conclusion that recognition in reality is little more than “a unilateral act which is in fact left to the political discretion of States, mostly to the executive branches…” and that has little – if any – legal effect (see also Malanczuk, Modern Introduction to International Law, p. 85).
But could Russia’s recognition have any other legal effect (since it isn’t yet clear what agreements have been reached between Russia and Western States in the past days, any possible violations of these agreements will be omitted from the following assessment)? In the case of Ossetia and Abkhazia one could think of a premature recognition as violating the rights of the mother country, i.e. Georgia. A premature recognition could be said to violate the sovereignty of Georgia and the country’s right to have its own existence protected under international law. The sovereignty of States is still one of the most essential principles of international law today. It is inter alia clearly laid down in Art. 2(1) UN Charter. Is the recognition indeed premature, that is, is it not backed by the facts on the ground regarding ambitions to self-determination (see below) and regarding the criteria of statehood of the relevant entities, it could well be considered a delict under international law since it is an intervention in the “matters which are essentially within the domestic jurisdiction of” (Art. 2(7) UN Charter) the mother State (here Georgia).
In this context it becomes interesting to once more look at some details of today’s announcement. President Medvedev in his statement mentions as reasons for the recognition
“the freely expressed will of the Ossetian and Abkhaz peoples and being guided by the provisions of the UN Charter, the 1970 Declaration on the Principles of International Law Governing Friendly Relations Between States, the CSCE Helsinki Final Act of 1975 and other fundamental international instruments”.
Concentrating for a while on the first part of this sentence, it must be acknowledged that the principle of self-determination, which President Medvedev seems to be referring to, is indeed recognized by State practice as a basic principle of international law which even has been awarded the status of ius cogens. Just as President Medvedev indicates, the principle is laid down in the UN Charter (inter alia Arts 1(2), 55, 73), the Friendly Relations Declaration (“all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter”), the two human rights Covenants from 1966 (see the common Art. 1), etc. From this one could draw the conclusion that Russia simply recognizes the people of Ossetia’s and Abkhazia’s right to self-determination. However, it is highly doubtful if the principle of self-determination indeed does apply to the two breakaway regions of Georgia. The various legal instruments mentioned above are rather old and with regard to the right of self-determination apply – with certainty – only to non-self-governing territories, trust territories and mandated territories (see inter alia the ICJ judgment in the Namibia-Case, ICJ Rep. 1971, 16, 31). But do they apply to other territories, e.g. parts of an independent State, as well? It is uncertain how this question should be answered since it poses the threat to support secessionary movements in blank, which certainly is not desirable.
A further point that should be mentioned is that secession is not usually regarded as creating a new State until a new permanent control has been established, i.e. until a new State has been created according to the doctrine of three elements mentioned above. This is not even changed by the acknowledged significance of the right to self-determination. The exercise of self-determination is unlikely to be able to replace a negative objective assessment of the fulfilment of the criteria of statehood.
In sum, what it comes down to is an assessment of the conditions on the ground. Has the right to self-determination been exercised, are there in fact attempts in Ossetia and/or Abkhazia to create independent States and are any of the conditions of statehood fulfilled?
Readers interested in some further legal assessments of what’s happening in Georgia, might want to check out an interview with Anne-Marie Slaughter here.