Kitabı oku: «Post-Soviet Secessionism», sayfa 2
2. Policies of Recognition and Non-Recognition
A descriptive use of the concepts of recognition and non-recognition, as intended in this chapter, allows for a better understanding of the mutual interrelationship between status and identity. Regarding policies of recognition, contested states attempt to construct state identity as a source of self-respect and dignity2 through the affirmation of equal status with the central government, and central governments through the affirmation of their authority over contested states. Both contested states and central governments attempt to destroy the source of state identity of the other party through a policy of non-recognition. Contested states deny the authority of the central government over them and claim status equal to the central government. Such equal status is denied by the central government. Status and identity are defined here, first in terms of self-perception, then in terms of the perception by the other conflicting party, and, eventually, in terms of how both conflicting parties want themselves and the other party to be perceived by external actors. Status and identity are equally crucial to conflicting parties, but the involvement of contested states in the negotiation and signing of ceasefire or trade agreements is primarily about status.
Policies of recognition and non-recognition express the normative positions of parties directly involved in a conflict of secession. These policies are aimed at the correction of a state of affairs that is perceived as a severe injustice. Mutual accusations generally include the denial of national self-determination, aggression, breaches of territorial integrity, ethnic cleansing and foreign occupation. The authorities of contested states identify their past status with oppression and consider this irreconcilable with their state identity. For the authorities of a central government confronting breakaway, policies of recognition and non-recognition are primarily aimed at the restoration of the status quo ante, which means territorial integrity and the subordinated status of the breakaway territory.
The descriptive use of the concept of a policy of recognition—or non-recognition—differs from its use in normative political theory. In the latter, the concept of recognition refers to a process of emancipation through the realization of the self. Recognition is then considered to be positive. In this chapter, recognition has a broader meaning. The parties involved in a conflict over secession may associate their policies of recognition with such a positive meaning, but this is not necessarily the case. They may very well resist policies of recognition from other parties for normative reasons.3
A further distinction must be made between a policy of non-recognition and the concept of misrecognition. Normative political theory builds up a contrast between, on the one hand, recognition that is associated with due respect for identity and rights, and, on the other hand, misrecognition (Verkennung in German), whose defining characteristics are the lack of due respect through subordination or other relations that threaten or distort the identity of a subject. Misrecognition is here defined as a form of injustice (Bedorf 2010: 137–149; Daase et al. 2015: 7–9; Hsieh 2019b). From the point of view of a contested state or a government confronting secession, a policy of non-recognition is not unjust or a misrecognition, but, to the contrary, the refusal to recognize what is unjust. This, then, is perceived as a form of resistance against injustice.
Similarly, the descriptive concept of a policy of non-recognition, as used in this chapter, differs from the normative principle of non-recognition found in international law. The latter is about the duty not to recognize situations where ius cogens norms have been violated (Brownlie 1963: 410–423). This principle is applied, for instance, in certain cases of foreign occupation and annexation. Such a principle turns a policy of resistance against severe breaches of international law—the creation of a new state through illegal occupation, for example—into an obligation of non-recognition. It is then no longer within the discretionary power of the state to recognize such a state. Resistance becomes a duty (Berkes 2017: 12; Talmon 2005: 125; Lauterpacht 2013: 431; Coppieters 2018b: 352). In contrast, the descriptive concept of a policy of non-recognition, as used in this chapter, refers to the policies of the conflicting parties regarding the status and identity they do not want to be associated with or that they do not want to be attributed to the other. Such a policy is always fueled by normative considerations, but its analysis is not necessarily normative.
Regarding the literature on international relations, this chapter’s descriptive analysis of the mutual tensions between the specific objectives of policies of recognition and policies of non-recognition builds on studies of counter-secession policies (Ker-Lindsay 2012).4 The concepts of a counter-secession policy and a non-recognition policy can both be used in a descriptive analysis, but the latter is more abstract and allows for a different kind of analytical precision than the former. The concept of counter-secession is more broadly conceived. It is not only about non-recognition, but also about recognition—efforts to re-establish state authority over a lost territory, for instance.
The literature on the European Union’s (EU’s) policy of “non-recognition and engagement” also must be taken into account (De Waal 2018; Caspersen 2018; Coppieters 2017; Coppieters 2019). The present analysis differs from such descriptive analysis of the role of an external actor by focusing on the relationship between the two conflicting parties, and by considering engagement as a form of recognition.
The need to overcome the exclusive focus on the recognition of statehood by including other objects of recognition is in line with more recent international relations literature on contested states, such as the examination of the efforts of Taiwan to establish economic relations with other countries (Hsieh 2019a) or of the EU to “normalize” the relations between Serbia and Kosovo, on the basis that these relations are neutral regarding the question of statehood (Visoka & Doyle 2015).
In confrontation with breakaway states, central governments do not have a common view regarding non-recognition policies. This corresponds to the general observation that states do not have any formalized normative doctrine on the recognition or non-recognition of other states (Coppieters 2018a; Coppieters 2019). Confronted with a secessionist crisis, they will generally invoke principles such as territorial integrity or national self-determination, but such references do not make their recognition and non-recognition policies fully explicit. Such formalization would impose unnecessary constraints on freedom of action. For instance, formal policy guidelines or normative frameworks risk being counterproductive in the search for compromises through the use of diplomatic instruments or, alternatively, in the search for the best way to confront the adversary.
Similarly, contested states generally do not defend a clear formal position regarding recognition and non-recognition. When participating in negotiations, contested states are themselves often in doubt as to which status they should pursue or the kind of status they want to achieve in an agreement. They often change their recognition and non-recognition policies over the course of the conflict in which they are involved. Moreover, the contested states examined in this chapter have substantially different policies and normative claims in this respect. While North Cyprus considers itself independent, it would also be satisfied with political equality within a federation. Transnistria defends a quite complex position: it strives for independence and for unity with Russia, but also accepts participating in negotiations that are led by the Organization for Security and Cooperation in Europe (OSCE) and based on the principle that it can only obtain special status within Moldova, which is a concession that Abkhazia never accepted.
Status and identity are themselves powerful motivators in conflicts over secession, but other interests also must be considered in an analysis of policies of recognition and non-recognition. Negotiations of a ceasefire and a trade agreement involve discussions among the conflicting parties on whether particular security or economic interests are to be held in common. Regarding trade relations, the literature on power differentials (Chen 2011) and the distinction between absolute and relative gains, or between symmetric and asymmetric forms of interdependency (Barbieri 2005), allows for a better understanding of the tension between recognition and non-recognition policies.
3. Contested States
Abkhazia, North Cyprus and Transnistria are contested states. This descriptive concept underlines the disputed nature of their claim for statehood (Geldenhuys 2009; Papadimitriou & Petrov 2012). A contested state is not recognized by the state from which it is breaking away and is also disputed by a significant part of the international community. This focus on the intersubjective dimension of state disputes makes it more appropriate for research on international relations—for instance, research on counter-secession policies (Ker-Lindsay 2012)—than the political science concept of a “de facto state,” which is more widely used in the literature.5 In its judgement about the objective existence of statehood, the latter concept focuses on the intrinsic criteria of statehood. This includes effective control over a territory and its population and the capacity of a polity to establish relations with other states. The concept of de facto statehood does not focus on the intersubjective dimension of recognition and non-recognition on the international level. It corresponds to the declaratory view of statehood in international law, which considers the reality of a state as being based on the presence of a number of intrinsic characteristics (such as its capacity to establish foreign relations) and independent from its recognition by other states (the establishment of effective diplomatic relations). The concept of a contested state, in contrast, is in line with the constitutive view, as it considers the lack of recognition of a state as constitutive of the contestation of its existence as a state. This constitutive view does not neglect the criteria for statehood that refer to the indigenous capacity to exercise state power—such as the possibility to establish diplomatic relations—but sees their practical fulfilment as contested. It thus remains attentive to the question of contestation of these criteria and of statehood through non-recognition.
A lack of diplomatic recognition implies uncertainty, according to the constitutive standards for statehood that involve international status for entities controlling a particular territory and its population. Such doubt or even contestation about the objective existence of a state is raised within the scholarly community, as well. In contrast to the declaratory view of statehood in international law or the concept of a de facto state in political science, where it is assumed that scholars may objectively deduce the existence of statehood from the observation of a number of key characteristics of statehood, the constitutive view of statehood in international law and the concept of a contested state imply scholarly contestation of the statehood of an entity in parallel with its contestation by the international community of states.6
In a secessionist conflict, contestation is mutual. Neither of the parties in a conflict involving a contested state recognize the claims of the other party regarding its own statehood. The state authority of both conflicting parties is, therefore, contested, but to a different degree. There is a considerable difference in the nature of the contestation taking place at each pole of the dyadic relation. The central government of the state from which a part of the territory has separated does not recognize the breakaway entity as a state. It does not consider that the territorial boundaries with this entity constitute international boundaries. From their side, the authorities of the seceded entity contest the constitutional right of the state from which they have broken away (or attempted to break away) to exercise control over their territory. But they do not contest its statehood as such.7 The term contested state takes this qualitative difference in the type of non-recognition into account and refers exclusively to the breakaway entity.
The present chapter focuses on the dyadic relations between the conflicting parties, without neglecting the importance of the recognition and non-recognition policies of external parties such as patron states and large powers. The conflicting parties take external actors as relevant judges of their respective claims. External actors have their own interests to defend regarding the international status of a breakaway territory, and their own international status and identity may—in the case of patron states, for instance—even become central to the disputes, turning a secessionist into a geopolitical conflict. A contested state may strengthen its position—and its status and identity—by securing partial recognition for itself. However, an increase in the number of recognitions does not necessarily end the contestation. United Nations (UN) membership generally suspends it, but this is not always the case.8 From the perspective of conflict resolution, the contestation over independent statehood only comes to an end through recognition by the state from which the contested state has broken away.
The concepts of recognition and non-recognition allow consideration of mutual agreements involving a contested state that are not necessarily related to statehood, such as ceasefire and trade agreements. Similarly, participation in negotiations over such agreements is not necessarily based on statehood, and this is even the case if the negotiations are dealing with the question of common statehood or reintegration. In all such cases, representatives of contested states are not considered by the other conflicting party as having the legal capacity to underwrite international treaties. However, it is generally accepted in international law that ceasefire agreements can be signed by non-state armed groups and a signatory to a trade agreement does not necessarily have to be a state. Representatives of contested states can, in such a case, be recognized. In turn, these representatives do not consider their counterpart as having state authority over the territory they are themselves in control of. The latter policy of non-recognition finds expression in ceasefire agreement articles dealing with the separation of forces. The acknowledgement of the validity of such an agreement that sets out the rights and obligations of the signatories thus implies a kind of mutual yet asymmetrical recognition. Recognition, then, still refers to a particular status with specific legal and political consequences.
The ceasefires analyzed in this chapter are referring to a moment in time where the breakaway entities did not necessarily proclaim their sovereign and independent status. Nonetheless, the present chapter takes into account that the armed conflicts have profoundly affected—and accelerated—the state building process of these entities. The concept of a contested state is, therefore, appropriate to describe them in a still early stage of state building.
The legal literature on ceasefire agreements is highly relevant for an analysis of responsibilities and obligations. The Abkhazian and Transnistrian armed forces can, for instance, be described as non-state armed groups. This means that their leaders are not recognized as representing state authorities. In contrast, the present chapter describes such military leaders as representing contested states, from the perspective of political science. Each of these two concepts—non-state armed group and contested state—is addressing problems that are proper to its discipline. The legal concept of a non-state armed group is useful to demonstrate, in the context of ceasefire agreements, that it is possible to attribute a specific legal status implying rights and duties to armed forces that are not under the control of a recognized state. By contrast, the political science concept of a contested state is useful for analyzing the ways in which statehood is not only disputed on the battlefield, but also in processes of recognition and non-recognition of status.
4. Ceasefire Agreements
A. Georgia and Abkhazia
The traditional practice of mediation in armed conflicts prescribes the inclusion of all armed groups in ceasefires as a necessary condition for their successful implementation. Governments involved in a military conflict with a contested state are unwilling, however, to increase the legitimacy of their adversary through any formal status in negotiations or agreements. However, they may be forced to recognize such status in order to end a military conflict when they are on the losing side.
After its military defeat in the 1992–1993 war and retreat from Abkhazia, Georgia had to enter into negotiations with the Abkhaz de facto authorities (Cohen 1999; Francis 2011). Mutual agreements involving Russia and the UN were expected to pave the way to an international political solution, including the return of the Georgian population that had fled the territory. Abkhazia wanted to negotiate these agreements on equal terms. Georgia tried to avoid such equality by presenting the conflict as an intra-state conflict in Abkhazia itself. At the first round of UN-led talks in Geneva at the end of 1993, it argued for a leading role in the negotiations for the so-called Abkhaz “government in exile”9—a government composed of former Georgian officials from Abkhazia representing the population that had been obliged to flee the territory (Francis 2011: 129). Georgia claimed that this government was de jure the only legitimate authority. This non-recognition policy aimed at delegitimizing the representative status of the de facto Abkhaz authorities, whose status had been enhanced by their military victory. However, the attempt to have either direct negotiations among the representatives of the two communities in Abkhazia or, alternatively, to have a separate representation at the negotiations for the government in exile failed. The negotiations were eventually held between the Abkhaz representatives, on the one hand, and the Georgian representatives—including those of the government in exile—on the other.
These negotiations led to the signature of a “Memorandum of Understanding” on December 1, 1993, which detailed measures to be taken to favor a comprehensive peace settlement. It was signed on equal terms by the parties, as was a common “Declaration on Measures for a Political Settlement of the Georgian-Abkhaz Conflict” and a “Quadripartite Agreement on Voluntary Return of Refugees and Displaced Persons,” which were both signed on April 4, 1994. Russia and international organizations such as the UN, the UN High Commissioner for Refugees (UNHCR) and the Conference for Security and Cooperation in Europe (CSCE) confirmed their presence under these two documents. The “Agreement on a Ceasefire and Separation of Forces” was signed in Moscow on May 14, 1994.10 It included a clause on the non-use of force and a list of guiding principles for the separation of armed forces. It was signed, just as the previous ones, on equal terms by the representatives of Abkhazia and Georgia, without any reference to their official position.
The ceasefire—as with the other agreements signed among the sides—internationalized the conflict. Russia, which had taken a mediatory role in the conflict, did not sign this particular document. The agreement included an appeal to the Heads of States of the Commonwealth of Independent States (CIS) for the creation of a collective peacekeeping force (PKF) and to the UN Security Council to support a monitoring role for UN military observers (United Nations Observer Mission in Georgia, UNOMIG). The presence of the CIS PKF would have to favor the return of refugees and internally displaced people (IDP) to Abkhazia.11
Georgia’s signature under the ceasefire agreement implied a recognition of Abkhazia’s de facto authorities as being in military control of the disputed territory. Contrary to the first ceasefire agreement signed in the first weeks of the war on September 3, 1992, here there was no reference to the objective of the restoration of Georgia’s territorial integrity (Francis 2011: 127). The ceasefire did not indicate any obligation for the Abkhaz side to disarm, requiring only that “all volunteer formations made up of persons from beyond the frontier of Abkhazia shall be disbanded and withdrawn” (Cohen 1999: 69). All prescriptions regarding the deployment of weapons were valid for both sides. The clause on the non-use of force implied that Georgia would have to rely exclusively on negotiations to re-establish its territorial integrity.
How should we analyze this asymmetric arrangement from the perspective of a mutual recognition and non-recognition and as compared with prescriptions found in the legal literature dealing with this topic (Bell 2006; Public International Law & Policy Group 2013)? The Abkhaz authorities had obstinately refused to let the Abkhaz government-in-exile have any separate representation at the negotiating table (Francis 2011: 129). This means that the non-recognition policies of the Georgian government failed to have the government-in-exile recognized as a party to the conflict within Abkhazia. It further failed to deny the Abkhaz authorities equal status in the negotiations. On the other hand, the Abkhaz authorities were successful in their recognition policies (regarding their own representativeness and equal status to the Georgians) and non-recognition policies (regarding their refusal to have the Abkhaz government-in-exile recognized as a separate party to the negotiations).
The risk that the signature of the Abkhaz authorities under a ceasefire would be challenged later by the Georgian government or other parties and that the agreement would, therefore, not be considered legally binding was not to be excluded. The validity of agreements where one of the sides is not recognized as a state is a key problem addressed in the legal literature on ceasefires and peace agreements (Bell 2006: 380–381; Public International Law & Policy Group 2013: 6–8). In order to minimize the risk of contestation, a number of pragmatic rules are generally used to enhance the acceptance of agreements as legally valid and, consequently, enhance the chances of implementation. Such a pragmatic approach can be found in the 1994 ceasefire agreement.
First, this document was precisely drafted in respect to the rights and responsibilities of the parties (for instance, in the clauses on the separation of forces and the presence of weapons) and expressed an evident intention by the signatories to be bound to the agreement. The agreement also clearly circumscribed the role of third parties—i.e., the CIS and the United Nations Security Council (UNSC). It did not refer directly to the obligations of the parties outside the military context, but this was not necessary. Obligations of this kind—regarding the return of refugees and IDPs, for instance—were included in the two April 4, 1994 documents that were signed previously, as already mentioned.
Second, the document gave a crucial role to third parties in keeping the peace in Abkhazia. The CIS peacekeeping force would, according to the agreement, make their “best efforts to maintain the cease-fire” and its observation. This force and the UN military observers were further assigned a supervisory and monitoring role. These real but limited tasks are in line with prescriptions in the literature on the optimal role of third parties in a situation that is only weakly regulated by the rules of international law and, consequently, characterized by a lack of effective enforcement mechanisms. Their main role here is increasing the political costs of non-compliance (Public International Law & Policy Group 2013: 7). This was surely the case for the 1994 agreement: at the time, it could indeed be expected that the risk of refusal by one of the conflicting parties to comply with an agreement to be monitored by the CIS and the UNSC was high.
This ceasefire implied not only recognition by the parties of their equal status in the framework of the agreement, but also their acceptance of a number of mutual rights and obligations regarding its implementation. They further agreed to the principle of the non-use of force and of having the CIS and UNSC play a supervisory role in the regulation of the conflict. The common appeal by the conflicting parties to the international organizations (the CIS and UN) to secure the peace indicates, as described in the legal literature (Bell 2006: 378), that the agreement went clearly beyond the internal constitutional order and addressed the international dimensions of the conflict.
The ceasefire was in line with the Abkhaz policy of non-recognition regarding the military presence of Georgia on its territory. Georgia, being defeated militarily, did not have the means for an effective non-recognition policy for the purposes of this agreement. It was not able to include any obligation for the Abkhaz side to disarm or to recognize Georgia’s territorial integrity. The war had significantly weakened Georgia’s international status, and this also affected its self-confidence and sense of justice. Its military defeat led to a victim identity, particularly in regard to the flight and expulsion of IDPs from Abkhazia. It would, for years to come, call for the international community to come to its rescue, in order to restore its territorial rights and those of the Georgian community from Abkhazia. The Abkhaz victory, in contrast, was a source of pride and self-confidence for the contested state. Its victory in September 1993 is commemorated yearly by a military parade in the Abkhaz capital of Sukhum/i.12
A very different geopolitical setting prevailed in August 2008. At that time, France had the presidency of the EU and took the role of mediator in the negotiations to end the Russian-Georgian war. It facilitated the signing of a ceasefire agreement. It was, in contrast with the 1994 ceasefire, an agreement among states, where the signatures of the leaders of South Ossetia and Abkhazia were added later (Phillips 2011: 8). This had a higher chance of being considered valid, compared to the kind of agreement where one of the sides was exclusively represented by a contested state, but it lacked precision—the international negotiations on security mechanisms, for instance, were postponed until a later date.
One of the major divergences between Russia and Georgia in the negotiations for the ceasefire agreement was about the way future negotiations should handle the international status of Abkhazia and South Ossetia. The Russian government defended open-ended negotiations and supported the inclusion of the following sentence in the ceasefire agreement: “Opening of international discussions on the future status and the modalities of lasting security in Abkhazia and South Ossetia.” This stress on the international character of the negotiations aimed at overcoming Abkhaz resistance to a discussion of the status question. Before the war, the Abkhaz authorities had always refused to discuss this question within the framework of Georgia’s territorial integrity. The lack of any reference to the principle of territorial integrity as a condition for status talks would allow for Abkhaz participation.13 The French supported the view that international discussions could keep the future of Abkhazia and South Ossetia open and prevent their recognition by Russia (Asmus 2010: 206–207). The Georgian government opposed such open-ended discussions. According to its policy of non-recognition, the lack of explicit reference to the status of Abkhazia within Georgia would enhance the legitimacy of secessionist claims. It proposed the following formulation: “Opening of international discussions on the modalities of lasting security in Abkhazia and South Ossetia, based exclusively on the decisions of the UN and the OSCE”14 (Kramer 2008). Russia rejected this alternative, and both parties eventually agreed on the following formulation, which became the basis of the future Geneva International Discussions: “Opening of international talks on the security and stability arrangements in Abkhazia and South Ossetia” (Phillips 2011: 8).
The absence of an international framework to discuss the status of Abkhazia and South Ossetia seems to have facilitated or at least accelerated Russia’s recognition of Abkhazia and South Ossetia as independent states on August 26, 2008. Russia had several motives to reconsider its previous position on non-recognition, but the launching of international status negotiations would have created a number of constraints to doing so. Russia would at least have had to wait for the obvious failure of the talks before recognizing the two entities.
Russia and Georgia’s heads of state put their signatures on documents with slightly different wordings. Dmitry Medvedev signed a Russian version referring to the “security of Abkhazia and South Ossetia”, whereas Mikheil Saakashvili put his signature on a French text referring to the “security in Abkhazia and South Ossetia.” The French president Nicolas Sarkozy signed both texts as a witness (Phillips 2011: 8). Abkhazia and South Ossetia were not involved in the negotiations. The six-point ceasefire did not even name these entities, referring to “pre-conflict positions” (“lieux habituels de cantonnement”) instead. It also did not mention their armed forces—referring exclusively to Georgian and Russian forces (Phillips 2011: 8). The fact that these contested states could not participate in the negotiations and that their signatures were added after those of the state leaders expresses a weak form of recognition of their role in solving the conflict.
