Expert Conclusion - On the state-legal relations existing between Georgia and Abkhazia at the present time

EXPERT CONCLUSION

On The State-Legal Relations Existing between Georgia and Abkhazia at the Present Time*

We shall examine the condition of state-legal relations between Georgia and Abkhazia from the point of view of the law of Georgia currently in force.

According to the 1995 Constitution of Georgia, Abkhazia is a territorial unit of Georgia (Article 3, clause 4) with indeterminate status (Article 3, clause 2), for the status of Abkhazia will be defined after 'the complete restoration of Georgia's jurisdiction over the country's entire territory' (Article 3, clause2). In this regard it is necessary to recall that the afore-mentioned Constitution of Georgia was ratified when Abkhazia was already, de facto, no longer part of Georgia and when the overwhelming majority of the citizens of Abkhazia (with the exception, possibly, of part of the refugees who found themselves on the territory of Georgia) took no part at all, either directly or through their representatives, either in the preliminary working out or in the final ratification of the Constitution of Georgia. International practice knows of certain instances of attempts to decide within a constitution the fate of peoples who take no part in the process of approving such a constitution. However, as a rule, such attempts end without result. For example, in the 1958 Constitution of France there is contained a section dedicated to a Community which France hoped to create under her own aegis out of her former colonies as they attained independence. But the young independent states reacted with utter coolness to this unilateral initiative of France, and the proposals of the relevant chapter of the French Constitution remained ineffective until they were abrogated in 1995.

At the same time the Constitution of Georgia speaks of 'the restoration of jurisdiction over the country's entire territory' when it was not in 1995 at the moment when the afore-mentioned Constitution was ratified that Georgia came into being as a state -- Georgia's statehood is numbered in centuries, and over this period the territory of Georgia has changed more than once: at certain periods Georgia extended from the Black to the Caspian Sea; at other times Georgia shrank to a tiny portion of the modern Georgian state; at others she split into separate state-formations, unifying again at others. The Georgian Constitution was ratified in the process of the development of legislative acts that existed prior to its coming into force, acts which confirmed certain principles that found their reflection also in the Constitution itself. The move towards restoring the independence of Georgia was begun in 1989 and received its further development in the creation and realisation of the modern independent Georgian state. By resolutions of the Supreme Soviet of the Georgian SSR of 18 November 1989, 9 March and 20 June 1990, all state-structures existing in Georgia from 25 February 1921 were declared illegal and void. In particular, in Resolution of the Supreme Soviet of the Georgian SSR of 20 June 1990 'On the introduction of a supplement to the resolution of the Supreme Soviet of the Georgian SSR of 9 March 1990 on guarantees to defend the state-sovereignty of Georgia' the following is stated: 'Noting that the authority established in Georgia as a result of intervention and occupation (from the start an unelected authority -- revolutionary committees and then Soviets, restricted and formed on narrow-class principles) did not express the genuine, free will of the Georgian people, the Supreme Soviet of the Georgian SSR declares illegal and void all acts that abolished the political and other institutions of the Democratic Republic of Georgia, substituting for them political and judicial institutions that relied on a foreign power'.

As is plain from the adduced citation, not only the Revolutionary Committees but also the later Soviets that replaced them (i.e. the organs of power for Georgia that existed throughout the entire Soviet period -- viz. 1921-1991) are deemed in the said act to be political institutions that relied on a foreign power and for this reason as not expressing the genuine will of the people. In the light of this, the modern Georgian state sees itself to be the legitimate heir of the Democratic Republic of Georgia that existed in the years 1918-1921 and not of the Georgian SSR. Just such a legitimate legacy is even more clearly affirmed in the Appeal to the Peoples of the World of 9 April 1991, published under the signature of the Chairman of the Supreme Soviet of the Republic of Georgia, Z. Gamsakhurdia, in which it is indicated that 'on 31 March 1991 a universal referendum took place in the Republic of Georgia in which the population unanimously supported the restoration of the state-independence of Georgia on the basis of "The Act on the Independence of Georgia" of 26 May 1918.' The self-same approach is confirmed also in the Resolution of the Supreme Soviet of the Georgian SSR of 20 June 1990 'On the creation of a legal mechanism for the restoration of the state-independence of Georgia', in which (paragraph 2) it is noted that the Georgian people realised its right to self-determination 'by the formation on 26 May 1918 of the Democratic Republic of Georgia'.

The 1995 Constitution of Georgia continued and developed the posture of the legislative acts already referred to. Clause 1, in particular, bears witness to this, for it is proclaimed therein that 'Georgia is an independent, unitary and indivisible state, which is confirmed by the referendum held on 31 March 1991...and by the Act on the restoration of the state-independence of Georgia of 9 April 1991'. And if any allusion to the 1978 Constitution of the Georgian SSR (albeit, for example, a reference that the Constitution of the Georgian SSR had ceased to be valid) is absent from the text of the 1995 Constitution of Georgia, it is directly stated in the Preamble with reference to the 1921 Constitution: 'The citizens of Georgia,...resting upon their multi-centennial traditions of national statehood and the fundamental principles of the 1921 Constitution of Georgia, proclaim the present Constitution'. It is precisely such references in the acts of Georgia that lay the foundation of the modern Georgian state to law and order and the principles of the construction of the Georgian Democratic Republic which presuppose a consideration of the legislative acts of 1918-1921 not as acts with mere historico-legal significance but as documents which possess principal importance for defining the modern bases of Georgia's statehood.

We note that at the moment of ratification of the said Act on the independence of Georgia of 26 May 1918 Abkhazia was not part of Georgia but was occupied by Georgia's armed forces only later, at the end of June 1918. Moreover, already in February 1918 an agreement was concluded between the authorities of Georgia, then preparing themselves for a proclamation of state-independence, and the authorities of Abkhazia. In this agreement the existence of a unitary and indivisible Abkhazia within frontiers stretching from the River Ingur to the River Mzymta was recognised. On 9 April 1991 the Supreme Soviet of the Republic of Georgia ratified the Act on the restoration of Georgia's state-independence. On that very day the Law of the Republic of Georgia 'On the validity of the Constitution and legislation of the Republic of Georgia' was passed. In this the Constitution of the Georgian SSR was not even mentioned, and there was talk of accelerating work on a new constitution 'on the basis of the stance of the Constitution of the Georgian Democratic Republic adopted on 21 February 1918'. However, the 1921 Constitution did not stipulate the existence of Abkhazia qua subject within the makeup of Georgia. In reality, Georgian armed forces were on the territory of Abkhazia from June 1918 to February 1921, providing security for the politics of an occupying regime, but Abkhazia was not deemed a subject of any legal relations within the makeup of Georgia. All mutual relations between Georgia and Abkhazia as subjects of some legal relations (we shall examine separately the nature of these) were constructed precisely in the period that followed February 1921 up to 1990 (i.e. in that period which the supreme organs of state-power in Georgia themselves declared in 1989-1991 to be a period of illegitimate governance, repudiating all acts ratified during that time).

Thus, from the point of view of Georgian legislation adopted in 1989-1991 and developed in later acts, Abkhazia cannot be deemed a subject of defined legal relations within the makeup of Georgia, and so state-legal relations between Abkhazia and Georgia have ceased. Thus, of and in itself the ratification by Georgia in 1995 of the Constitution, in which there is a continuation of the legal formation of the development of the statehood based on the legal acts of 1989-1991, cannot alter the character of the mutual relations between Abkhazia and Georgia engendered by the afore-mentioned acts of 1989-1991. And, in general, the unilateral adoption by any state of a constitution that takes a stance on the incorporation into the makeup of the said state of any territory without taking into account the opinion of the population of this territory, which possesses its own organs of authority, cannot have any juridical consequences.

In just this way the conclusion by third states of treaties with a state that deems some territory to be its own without taking into account the opinion of the population of this territory, including treaties in which the pretence to the said territory stands in no doubt, in no way signifies that the population of this territory has no right to effect its own entitlement to self-determination and secede from the makeup of the said state. Thus, international agreements concluded, for example, with Great Britain and France prior to the disintegration of their colonial empires in no way hindered the appearance of new independent states in place of their colonies, just as the international treaties themselves (provided they did not concern the colonies exclusively) did not automatically cease operating after the liquidation of the British and French colonial states, although it is plain to all that the territory under the control of the British and French governments was reduced, and these governments cannot take responsibility for the fulfilment of these treaties on the territory of their former colonies. The impossibility to decide the fate of the population of any territory without taking account of the opinion of the population itself, expressed by the elected representatives of this population, found its reflection also in the very fact that a Russian military contingent finds itself with a peace-keeping mission in Abkhazia by trilateral decision of the governments of Russian, Georgia and Abkhazia.

In order to substantiate its justification to regard Abkhazia as a part of the territory of the Georgian state, the Georgian side points to the Russian-Georgian treaty of 7 May 1920 which recognised the frontier between the RSFSR [Russian Soviet Federative Socialist Republic] and Democratic Georgia [as running] along the River Psou. However, this treaty merely recognised the fact that the territory beyond the River Psou was under the control of Georgian military forces, nothing being said about the fate of Abkhazia. In fact, the said Treaty recognised the situation with which the Denikin government agreed in 1918. At that time A.I. Denikin declared that the Sukhum Okrug (as the territory of Abkhazia was known upto the 1917 Revolution) should be neutral and the Georgian military withdrawn beyond the River Ingur .

In order better to appreciate why in 1917-1918 Georgia and Abkhazia were engaged in separate, mutually independent processes of state-building, we shall devote a little attention to the position of Abkhazia and of Georgia in the composition of the Russian Empire up to the 1917 Revolution.

In 1810 Abkhazia entered the makeup of the Russian Empire directly in the capacity of a state-formation with no relations to any Georgian state, and Abkhazia preserved a certain autonomy within the composition of Russia right up to 1864. After the October Revolution of 1917, to be precise in November of 1917, an assembly of the Abkhazian people took place at which important documents were ratified -- the Declaration of the Assembly of the Abkhazian People and the Constitution of the People's Soviet. In the Declaration of the People's Soviet of Abkhazia it is stated that 'one of the subsequent main tasks of the Abkhazian People's Soviet is to work on the self-determination of the Abkhazian people... The Abkhazian people enters into the Union of the United Mountaineers of the North Caucasus, Daghestan and Abkhazia'. In this way, Abkhazia voluntarily and independently entered into the makeup of the Mountain Republic proclaimed on 11 May 1918 and constituting Abkhazia, Adyghea, Kabarda, Chechenia, Ossetia, Daghestan etc...; with this entity Georgia had no relations. Thereafter was formed the South-Eastern Union of Cossack militias, mountaineers of the Caucasus and the free peoples of the Steppe composed of the Don, Kuban, Tersk, Astrakhan and Ural Cossack militias, the mountaineers of the North Caucasus, Daghestan, Abkhazia, the Zakatala Okrug and the free Steppe peoples of the Astrakhan and Stavropol Gubernias. The united government of the South-Eastern Union proclaimed the following: 'Recognising a democratic federative republic to be the best form of state-building for Russia, the South-Eastern Union in its own practical actions will adhere to the code of behaviour that characterises supporters of a federative form of government. Guaranteeing to its own members full independence in their internal life, the Union is committed to assist them by all joint-means in the preparation of their internal construction as independent states of a future Russian Democratic Federative Republic'. Thus, even within the confines of the South-Eastern Union Abkhazia was preserved as an integral and independent formation.

The Georgian Democratic Republic was formed on 26 May 1918, but Abkhazia, as is evident from what has been adduced above, was not at that time a part of it. In June 1918 Georgian military forces entered Abkhazia on the pretence of fighting the Bolsheviks. Furthermore, almost straight after the liquidation of the Georgian Democratic Republic, to be precise on 31 March 1918, the Soviet Socialist Republic of Abkhazia was proclaimed. Only on 16 December 1921 (and that under pressure from I.V. Stalin, who then headed the Organising Bureau of the Central Committee of the All-Union Communist Party (of Bolsheviks) and was considered in the Central Committee to be one of the main specialists on problems of the Caucasus, and G.K. Ordzhonikidze, who in February 1920 was named as chairman of the Bureau for restoring power in the Caucasus and from 1921 to 1926 was secretary of the Caucasian Bureau of the Central Committee of the All-Union Communist Party (of Bolsheviks) and then secretary of the Transcaucasian regional committee of the Central Committee of the All-Union Communist Party (B)) did Abkhazia enter federative treaty-relations with Georgia, having concluded a Union Treaty.

The appellation fixed for Abkhazia shortly after this of an autonomous Soviet socialist republic did not automatically alter the federative (or, to use the terminology of the Georgian-Abkhazian Treaty of 16 December 1921, union) relations between Abkhazia and Georgia. The recognition for autonomous republics of equal subjecthood in federative relations at the time received a certain extension in the state-building of the Soviet republics. Thus, the Russian Soviet Federative Socialist Republic incorporated autonomous republics -- Bashkiria was formed as an autonomous republic within the Russian Federation on the basis of a Treaty in 1919 between the federal (or, as was then said, central) organs of state power and the organs of power in Bashkiria. The character of the treaty inter-state relations between Georgia and Abkhazia found reflection both in the Constitution of Abkhazia (1925) and in that of Georgia (1927). However, in 1931 the status of Abkhazia was lowered: she became an autonomous republic within Georgia without any reference to the treaty character of Georgian-Abkhazian relations; moreover, it is perfectly clear that the decision on this question (as with all similar decisions of state-significance in those times) was taken in Moscow by 'fiat' of I.V. Stalin and with the active participation of L.P. Beria, who at the beginning of 1931 became chairman of the Transcaucasian and Georgian state political directorates and in November 1931 First Secretary of the Central Committee's Communist (B) Party of Georgia and Second Secretary of the Transcaucasian regional committee of the All-Union Communist Party (of Bolsheviks). It is true, even an autonomous republic was recognised as a state-formation according to the constitutional legislation of the USSR and the union-republics. To the extent, in this regard, that Georgia (as is evident from the 1989-1991 legislative acts cited above) places in doubt the validity of all decisions respecting herself during the period of the USSR's existence, it is perfectly logical for the question to remain open as to the legitimacy of Georgia's territorial extent under Soviet power, including the legitimacy of Abkhazia's entry into the makeup of Georgia.

International law recognises the conversion of administrative frontiers into state-frontiers with the splitting off in some well-defined shape of a solitary portion of a state existing within certain borders and the transformation of this portion into a new independent state. However, world-practice knows of sufficiently many cases when the drawing of new borders has accompanied the transformation of some portion of a state into an independent state. Thus, in the case of Ireland both prior to its conquest by England and as part of the British Empire the territory of the whole island was understood. But with the assignment to Ireland of the status of a dominion (officially styled the Free Irish State) in 1920-1922 and then with the proclamation of an independent Irish Republic in 1937 the northern part of Ireland stayed within the makeup of the United Kingdom of Great Britain and Northern Ireland. The disintegration of the Austro-Hungarian Empire in 1918-1920 was accompanied by the formation of a series of independent states. In particular, Czechoslovakia came into being. By the way, a Czech entity existed as an independent state prior to entry into the composition of the state of the Habsburgs, whilst within the Empire it had, as it were, administrative borders. Slovakia, on the other hand, was administratively part of Hungary prior to the formation of the Austro-Hungarian Empire, and within the Empire it was also deemed to be a part of Hungary. At the same time, Transylvania, which was traditionally part of Hungary, was handed over by peace-treaty to Rumania. From examples closer in time to our own day one can adduce the Dayton Accords, which provided for the creation on the territory of Bosnia-Herzegovina of a Serb Republic and (Croatian-Muslim) Federation (Appendix 2 to the General Framework Agreement on Peace in Bosnia-Herzegovina and the corresponding map). Additionally, in practice new, hitherto non-existent borders were drawn between them. World-practice knows of instances of division into several independent states with the separation of some part of a state that prior to the split constituted a single administrative territorial unit.

Thus, the Indian Empire was under the sway of the British crown from 1877 to 1947, and then with the proclamation of independence three states were formed in its place: Burma, the Indian Union and Pakistan (later the state of Bangladesh split away from Pakistan). The are no grounds to suppose that international law guarantees the preservation of the unitary states that came into being out of the former Soviet republics when the Soviet Union collapsed regardless of the will of the peoples residing in these former Soviet republics. The existence of Abkhazia's settled borders permits one to suppose that she could form an independent state in just these frontiers. As a rule, the right of a people to self-determination in the form of the acquisition of state-independence is more easily realised and more speedily takes shape if that people within the limits of a certain territory that enters into the composition of another state are already in possession of self-governance and have formed effectively operating institutions of power. As has already been said, independent institutions of power in Abkhazia began to take shape as early as December 1917 (to say nothing of the hithertofore multi-centennial history of Abkhazian statehood). And even after Abkhazia became an autonomous republic within Soviet Georgia, which itself was part of the Soviet Union, according in particular to the Soviet Union's Constitutions of 1936 and 1977 and the 1937 and 1978 Constitutions of the Georgian SSR, the Abkhazian ASSR, like other autonomous republics, had the full range of attributes of statehood: her own Constitution, legislation, symbols, etc...

The presumption that the states formed as a result of the collapse of the Soviet Union will keep the frontiers established at the moment of this collapse cannot alter the internationally recognised right of peoples to self-determination. Article 2 clause 1 of the Charter of the United Nations refers to the necessity of respecting the principle of equal rights and the self-determination of peoples. Since the ratification of the UN Charter the principle of self-determination of peoples has more than once been reinforced in UN documents, starting with Resolution 545 (VI) of the General Assembly. In their number one can name the 1960 Declaration on the awarding of independence to colonial countries and peoples, the 1966 International pacts on human rights, and the 1975 Declaration of principles of the Final Act of the CSCE, where special emphasis is laid upon the right of peoples to take charge of their own destiny. The principle of self-determination of peoples is laid bare with particular clarity and comprehensiveness in the 1970 UN Declaration on the principles of international law: 'Creation of a sovereign and independent state, free association with an independent state or union with it, or the establishment of any other political status freely defined by a people are manifestations of the realisation by this people of the right to self-determination'.

In this Declaration it is also pointed out that each state is obliged to refrain from all use of force which might prevent peoples from effecting their right to self-determination. An important element of the principle under review is the right of peoples to solicit and receive support in conformity with the aims and principles of the UN Charter, should they be deprived of the right to self-determination by means of the deployment of force. We also draw attention to the following provision of the said Declaration: 'Nothing in the paragraphs cited above should be interpreted as sanctioning or encouraging any acts which might lead to the dismemberment or to a partial or the complete infringement of the territorial integrity or political unity of sovereign and independent states acting in observance of the principle of equality of rights and the self-determination of peoples...'. In other words, in the citation adduced above what is being stated is that sides signing the Declaration come out against the taking of any actions (on some groundless and far-fetched pretext of allegedly helping to realise a right to self-determination) which infringe the territorial integrity and political unity of states seen to be 'ACTING IN OBSERVANCE OF THE PRINCIPLE OF EQUALITY OF RIGHTS AND THE SELF-DETERMINATION OF PEOPLES' on the part of other states or international organisations.

This provision is thereby directed at preventing the demagogic use of rallying-cries to self-determination for any hostile acts aimed at a state on the territory of which reside two or more peoples who are realising of their own free will their right to self-determination by the very act of living harmoniously together. It is precisely towards this same end that are directed the provisions of a range of international acts ratified within the framework of the CIS, including the 1991 Agreement on the creation of the CIS, in which the sides stressed 'the inviolability of existing borders within the framework of the Commonwealth' (clause 5).

For its part, Abkhazia has been recognised as a state-formation (albeit within another state) for almost the entire span of the XXth century -- in total the history of Abkhazian statehood is numbered in several centuries. As such, Abkhazia possessed all the attributes of state-authority. Apart from this, the Abkhazians are a distinct people with their own millennia-old culture of indigenous Caucasian origin, speaking a language that does not form any common group with the Georgian language. Moreover, there are no grounds for claiming that the Abkhazian state infringes or seeks to infringe the rights of the representatives of other nationalities. Abkhazia has more than once declared recognition of the principles of international law. This is witnessed by the legal acts adopted in Abkhazia and Abkhazia's initiatives in relation to the return of the refugees of "Georgian" [most are actually Mingrelian -- translator] nationality to the Gal Region of Abkhazia.

The Georgian side has more than once declared that the right of peoples to self-determination does not necessarily mean separation. In practice, the right of peoples to self-determination under appropriate conditions can manifest itself in the union of two or more states, in the joining of one state to another, in the transformation of a unitary state into a federative one, or in the creation of an autonomy on the territory of some state. But the right of peoples to self-determination is not limited by this and can also be manifested in the splitting off of a people (especially one already organised into a state-formation) from the constituency of some state and the formation of an independent state. Thus, just over the last few decades, the world-community has recognised as independent states those that came into being as a result of the collapse of the USSR, Czechoslovakia, Yugoslavia, and it has recognised Eritrea, which split off from Ethiopia, and others. Moreover, Georgia itself justified its own striving to leave the makeup of the USSR precisely by references to the right of each nation to self-determination. The already mentioned Resolution of the Supreme Soviet of the Georgian SSR of 20 June 1990 'On the creation of a legal mechanism to restore Georgia's state-independence' begins thus: 'Guided by the imperatives of the Georgian people's national sovereignty, by the inviolability of the right of each nation to self-determination, recognised and guaranteed by the fundamental principles of modern international law, by other norms, including the Charter of the United Nations' Organisation, by international pacts on human rights, and also by the final and summative acts of the Helsinki and Vienna fora...'. By the same token, Abkhazia is guided by the self-same imperatives, rights and principles.

It, thus, seems that the multi-ethnic people of Abkhazia, just like the Georgian people and, of course, any people in general, do themselves have the right to decide their own destiny, including the question of whether to continue their existence in the form of a state-organisation, independently defining the character of their mutual relations with neighbouring states.

A.S. AVTONOMOV
Head of the Sector of Legal Problems of Federalism, Regionalism and Integration
The Institute of State and Law
Russian Academy of Sciences
24 May 1999

*Translator's footnote:

For a contemporary statement by an Abkhazian representative on Georgia's attempt to take over Abkhazia by force see Lieut. Khasaia's 'Memorandum concerning the Abkhasian question' included in Anita L.P. Burdett (ed.) 'Caucasian Boundaries 1802-1946: Documents' (Archive Editions, 1996, pp. 528-537). A pertinent assessment of the Menshevik government of the so-called Georgian Democratic Republic of 1918-1921 through the eyes of a foreigner was given by English traveller Carl Eric Roberts (who wrote under the pseudonym Bechhofer), namely: 'The free and independent Social-Democratic government of Georgia will ever remain in my memory as a classical example of an imperialistic minor nationality both in relation to its seizure of territory to within its own borders and in relation to the bureaucratic tyranny inside the state. Its chauvinism exceeds the highest limits' (In Denikins Russia and the Caucasus, 1919-1920, London 1921). The Burdett volume also contains (630-631) a 2-page secret British War Office document of February 1919 discussing Denikin's contention that Georgia's claims to even the territory around Sochi were entirely groundless; the unnamed author concurs in this view and begins his closing statement with the comment: 'I have nothing good to say of the Georgian Govt. as my written report will show...'.

George HEWITT, FBA,
Professor of Caucasian Languages.