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Uncertain Ground: Engaging With Europe’s De Facto States and Breakaway Territories - Part Four

Analysis 11 February 2019
Uncertain Ground: Engaging With Europe’s De Facto States and Breakaway Territories - Part Four

Strati - the think tank Institute for Strategic Analyses is starting publication of a new publication “Uncertain Ground. Engaging With Europe’s De Facto States and Breakaway Territories” by Thomas De Wall to keep its English-language readers informed of breakaway territories and opportunities for them to exist.

INTERNATIONAL LAW AND ITS LIMITS

The three territories considered here are Janus-like in their approach to the international legal order, looking both ways. On the one hand, existing outside international legal space offers some benefits. In the past, all were havens for criminal activity and smuggling - even if the more lurid allegations about them (for example, that Abkhazia was a conduit for smuggling nuclear materials) are overblown.

Criminality still finds more fertile ground to flourish in an unrecognized territory. For example, northern Cyprus is a location for human trafficking and an abusive sex industry. Transdniestria had a fearsome reputation for criminality in the 1990s and is still a source of counterfeit goods and a center for smuggling - although this illegal trade continues with the active collusion of powerful figures in right-bank Moldova and Ukraine.

Impunity from justice is a big concern. If a citizen of a de facto state commits a crime and has his government’s protection, he has a good chance of getting away with it. An unrecognized territory is a good place to take refuge from justice. Arguments over alleged criminal suspects are still a major headache between Tiraspol and Chișinău. The suspicious deaths of two Georgians, Giga Otkhozoria in Abkhazia in 2017 and Archil Tatunashvili in South Ossetia in 2018, and the failure to punish anyone has understandably enraged the Georgian public.

Yet these territories also aspire to respectability. In recent years, all three de facto states have signaled that they want to legitimize themselves in the eyes of the wider world. All are subject to the normative processes in Europe -none of them employ the death penalty, for example. They want business, tourism, and - in the case of northern Cyprus-international students. To improve their lot, the de facto states strive to shed their outlaw reputation, and in some - but not all - areas they have incentives to help fight illegal practices in their territory. This craving for respectability is leverage that the international community has so far failed to use effectively.

International courts often struggle to give clear-cut judgments when asked to adjudicate on cases in de facto states. A key issue is whether the actions of a de facto state affect one of its own citizens - its internal sovereignty – or of an outsider living beyond its borders - its disputed external sovereignty.

When outsiders living beyond the territory assert their claims, international courts have pinned responsibility on the patron state in order to win them effective redress. In a series of judgments on northern Cyprus and Transdniestria, the European Court of Human Rights (ECHR) placed the legal responsibility for human rights abuses on Turkey and Russia, respectively.

Notably, in the landmark 1996 case of Loizidou v. Turkey, the ECHR ruled that the Greek Cypriot Titina Loizidou had been unjustly deprived of her home in northern Cyprus and that because the state of Turkey has exercised “effective control” over northern Cyprus since 1974, it was required to pay her compensation. This set a precedent for tens of thousands of other displaced Greek Cypriots who had also lost their property in the north because of the conflict.

In Transdniestria, the ECHR’s 2004 case Ilaşcu and Others v. Moldova and Russia reached an analogous judgment for a group of men detained in the de facto state, although the court apportioned some responsibility to Moldova as well as to Russia. However, residents of these territories also have rights. Several international court judgments have reflected this by ruling that de facto states exercise legal and political authority over their own citizens in everyday matters.

British case law, for example, has established a precedent of recognizing the law of an unrecognized state when it comes to “private rights, or acts of everyday occurrence, or perfunctory acts of administration.” In a case concerning northern Cyprus in 1977, known as Hesperides Hotels v. Aegean Turkish Holidays Ltd., Lord Denning asserted, “I would unhesitatingly hold that the courts of this country can recognise the laws or acts of a body which is in effective control of a territory even though it has not been recognized by Her Majesty’s Government…: at any rate, in regard to the laws which regulate the day to day affairs of the people, such as their marriages, their divorces, their leases, their occupations, and so forth.”

This judgment is in line with the Namibia opinion issued by the International Court of Justice in 1971, the most comprehensive international ruling on this topic to date. The opinion recommended a posture of collective non-recognition of South Africa’s illegal seizure of Namibia, saying that countries should suspend international treaties with Namibia and have no diplomatic relations with the territory. However, the court also ruled that the policy should not disadvantage individuals living in Namibia:

“In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.” On the basis of this judgment, the UN encourages parent states such as Georgia and Ukraine to accept certificates issued in Sukhumi or Donetsk as grounds to give civil documents to the Abkhaz or Ukrainians from non-government-controlled regions. The Namibia opinion still leaves gray areas as to where responsibility lies for the actions of a de facto state. One such ambiguity covers economic relations with an unrecognized entity and the use of sanctions. The opinion declared there is an “obligation to abstain from entering into economic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the territory.” The recommendation was for economic punishment not of the de facto state but of the patron state; in the cases considered here, the de facto states have tended to be economically targeted, rather than their patrons.

BETTER ENGAGEMENT REQUIRED

The discussion above shows that the lawyers have left space for the politicians when it comes to dealing with de facto states. There is no legal bar to clear-eyed and constructive engagement with these territories.

But what does engagement mean? It is a capacious term. All international actors engage, to some degree, with territories they do not recognize. The spectrum is very wide: from fullscale business dealings with Taiwan, a member of the World Trade Organization, to very limited negotiations over hostages with extremist groups holding territory in the Middle East.

The phrase “nonrecognition and engagement” describes the European Union’s (EU) position on the post-Soviet breakaway territories. The two concepts are explicitly coupled and reinforce each other. Peter Semneby, who devised the European Union’s Non-Recognition and Engagement Policy for Abkhazia and South Ossetia, explained in 2011: “Non-recognition without engagement is sterile and counterproductive; engagement without a firm line
on non-recognition is a potential slippery slope.”

This framework leaves open many policy options. “Nonrecognition takes many forms,” notes Robert Cooper, a former EU diplomat who negotiated intensively with Kosovo and Serbia. He points to a wide difference in approach among the five EU countries who have not recognized Kosovo’s independence. On one side is Greece. It maintains a “liaison office” in Pristina through which it conducts bilateral diplomatic relations with Kosovo in all but name. On the other side is Spain, whose uncompromising line led it in 2018 to decline to invite weightlifters from Kosovo to its territory.

As a result, Spain forfeited its right to host a contest for the European Weightlifting Federation. When international engagement is pursued with an unrecognized entity, there are three recurring challenges, all of which demand great diplomatic skill and nuance. One is the degree to which an international actor coordinates policies with the government of the parent state. Naturally, there is a bias toward a recognized nation-state, which is a partner in many other policy areas. But coordination does not entail a full overlap of policies. This distinction is important because the international actors are also conflict mediators. They need to be able to maintain a critical distance and have the trust of both parties in a dispute.

These actors also have their own intrinsic interests in reaching across disputed borders to tackle transnational threats. As Semneby said in 2011, “The EU cannot afford white spots to develop on the map of its immediate neighborhood.” The territories are potential sources of security threats, and environmental threats also do not stop at recognized borders. Poor environmental regulation is acute in these regions and often affects their neighbors as well.

In Abkhazia, limited international access to the territory compounds contamination of the Black Sea due to poor environmental controls. Transdniestria’s large and aging industrial plants cause air and water pollution. In northern Cyprus, unauthorized building work has wrecked many beautiful spots, as tourist infrastructure has been built without checks or consideration for the environment.

A second challenge for international actors is the issue of not just what to engage with but who - in other words, how to interact with de facto authorities. The recognized states generally urge against formal cooperation on the grounds that this legitimizes authorities they regard as illegitimate. Many projects focus only on civil society partners. However, some kind of contact and coordination is inevitable with the de facto masters of these territories.

There is an international consensus that the de facto authorities are to be treated as partners in negotiations on conflict resolution. The main negotiations in Cyprus take place between the Greek and Turkish Cypriot leaders and their representatives. In the Transdniestria conflict, Tiraspol is accepted as one of the two sides with Chișinău. The Abkhaz authorities are signatories to ceasefire agreements, thus endowing them with certain responsibilities. After the 2008 war with Russia, the Georgian authorities sought to reframe the conflicts over Abkhazia and South Ossetia as being Georgian-Russian conflicts.

Yet they continue to talk to the Abkhaz and South Ossetians at the last remaining international forum on the conflict, the Geneva International Discussions. There are big differences in approach, however, on the issues of elections and legitimacy. The leader of northern Cyprus is accepted as the “head of the Turkish community” and therefore treated as an elected official. So on April 28, 2015, Jean-Claude Juncker, president of the European Commission, publicly congratulated Mustafa Akıncı on his victory in the Turkish Cypriot presidential election, albeit in language that avoided the words “election” or “president.” Juncker wrote, “I would like to congratulate you for your success in becoming the new leader of the Turkish Cypriot community.”

This is done with the consent of the Greek Cypriots. In 2015, Greek Cypriot President Nicos Anastasiades also congratulated his Turkish Cypriot counterpart (Anastasiades used the word “selection” rather than “election” in his congratulatory tweet). Support for the legitimacy of Akıncı and his predecessors was also framed as contributing to the negotiations. In Abkhazia and Transdniestria, as well as South Ossetia, a precedent has been set and is unlikely to change the fact that most of the world does not regard their elections as legitimate.

As Donnacha O Beachain and others have recorded, these elections are often well-organized and competitive, but that is not a mitigating factor for the international community, which routinely denounces them as invalid. Following the parliamentary elections in Abkhazia in 2017, for example, the European External Action Service commented, “In view of the reports about the so-called ‘elections’ that took place on 12 March in the Georgian breakaway region of Abkhazia, we recall that the European Union does not recognize the constitutional and legal framework within which these elections have taken place.”

International officials acknowledge in private that the issue of who is in power in a de facto state is an important consideration for them. One such official expressed frustration that, following the 2004 elections in Abkhazia, there was no latitude to reward the victor, Sergei Bagapsh, for his conduct—“He has behaved impeccably but I have no way of thanking him!”

When internationals are seen to have stepped over a line, they suffer a backlash. In 2017, reporters heard then European Union special representative for the South Caucasus and the crisis in Georgia Herbert Salber congratulating South Ossetian leader Anatoly Bibilov on being elected to his post. The brief comment was seized on.24 South Ossetians welcomed Salber’s words while some Georgian officials called for Salber’s resignation, and he did indeed step down earlier than anticipated.

The EU could frame its response to elections in Abkhazia or South Ossetia as it does those in Cyprus, by welcoming the choosing of a “leader of the Abkhaz (or South Ossetian) community” - without implying that the person was elected to a state structure. This would incentivize those leaders to work more constructively with the international community. However, a precedent has been set and is unlikely to change.

A third challenge is how and where international assistance should be provided in unrecognized states. Parent states frequently raise the objection that international aid must not contribute to capacity building as this amounts to de facto state building. (In a more polemical tone, some warn internationals against funding criminal activity or funding separatism.) As a result, the consensus is that international aid to de facto states should be solely directed only to civil society and business as well as to humanitarian purposes. This issue is especially vexing in Cyprus, where the EU has a mandate to prepare the northern part of the island for the acquis communautaire.

In practice, it is hard to draw the line between what is governmental and what is nongovernmental, especially in a small society where individuals move between the two sectors. Foreigners cannot avoid doing business with de facto officials on matters of substance as they require permission to enter and work in a territory and nongovernmental projects require official authorization on the ground.

Transdniestria provides the most positive model. Many issues are resolved behind the scenes, and status disputes are avoided. Yet even here progress is very slow. Seemingly small problems are politicized, become currency in negotiations, and take years to overcome. Efforts have failed to secure a single mobile phone roaming network in Cyprus, to combat the stink bug in Abkhazia and western Georgia, or to protect a water filtration plant in eastern Ukraine. With goodwill and creativity, most conflicts can begin to be resolved - but unfortunately these are usually lacking. Outsiders must keep trying.

Prepared for publication by Fuad Muxtar-Aqbabali.
 

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