Abkhazia’s Statehood in the Post-Soviet Period, by T. M. Shamba, A. U. Neproshin
CONFERENCE
Abkhazia in the Context of Contemporary International Relations
Pitsunda, The Republic of Abkhazia: June 29 - July 1, 2004
Abkhazia’s Statehood in the Post-Soviet Period
T.M. Shamba, A.U. Neproshin
The break up of the Soviet Union in 1990 sharply changed the state system and political situation in the country. The government of the USSR, understanding that an irreversible process was taking place under the influence of centrifugal forces, and seeking to impart to it a civilized character, wrote a law defining an order to the exit of republics from the USSR (it must be remembered that the Constitution of the USSR was written with such events in view, but the order of their realization had not been worked out). The newly legalized standards for exit from the structure of the USSR were promulgated in union republics, as well as in autonomous ones that were part of union republics, and regulated according to the law of the USSR of 3 April, 1990 “On the procedure of deciding questions connected with the exit of united republics from the USSR”, (Vedomosti VC USSR, No. 15, April 1990, pp. 252).
Article 3. In a union republic, being composed of autonomous republics, autonomous regions and autonomous districts, a referendum is carried out separately in each autonomous body. The people of autonomous republics and autonomous formations have the right to independently decide the question of remaining in the USSR or of leaving, and also to raise the question of their state-legal status.
Article 6. In a union republic, being composed of autonomous republics, autonomous regions and autonomous districts or compact residence areas of national groups, mentioned in the second part of article 3 of the present law, the results of the referendum are considered by the Supreme Soviet of the union republic in conjunction with the Supreme Soviet of the autonomous republic and corresponding Councils of deputies.
Article 9. The Congress of the deputies of the USSR, by presentation of the Supreme Soviet of the USSR, in coordination with the Supreme Soviet of the exiting republic, considers the results of the referendum in the union republic on the question of exit from the USSR, and also the opinions of the highest organs of governmental power of the union, the autonomous republic, and the organs of governmental power of the autonomous regions and territories. The Congress of the deputies of the people of the USSR sets the exiting period, not exceeding 5 years, in the course of which questions arising in connection with the exit of the republic must be decided.
Article 20. Upon the conclusion of the transition period or in case of a long term settlement of questions, provided for by the present law, the Supreme Soviet of the USSR gathers the Congress of the deputies of the people to make a decision, acknowledging the completion of the process in accordance with the interests and to the satisfaction of the claims of the exiting republic on one hand, and of the USSR, the united republic, and also the autonomous republic, autonomous formation or national group, mentioned in the second part of article 3 of the present law, on the other.
From the moment such a decision is made by the Congress of the deputies of the people of the USSR, the exit of the union republic from the USSR is considered as having taken place, and the deputies of the people of the USSR from the leaving republic lose their power. The Congress of the deputies of the people of the USSR brings the corresponding changes into the Constitution of the USSR (3 April 1990, Vedomosti of the Congress of the deputies of the people of the USSR and the High Soviet of the USSR, m., 1990, No. 15, pp. 303-308).
As is proper every condition necessary for the granting of sovereignty of every union and autonomous republic of the former USSR was provided for in this document. A resolution was also passed by the Supreme Soviet of the USSR on 3 April 1990, “Regarding the bringing into action of the law of the USSR “On the procedures for deciding questions connected to the exit of a uniion republic from the USSR.”” (Vedimosti of the Congress of the deputies of the people of the USSR and the High Soviet of the USSR, 1990, No. 15, pp. 252-253.)
It is understood that the procedure of exit of republics from the USSR, or from the union republic (with regard to autonomous republics) is also possible up to the time of the effective legalization of the law, but only in the case where this does not violate the interests of the parties concerned – the USSR, union or autonomous republics. If a violation of the rights and freedoms of one of the interested parties occurs, or if violations of one of the subjects of international law are recorded in the procedure of the exit of a country from treaty relations, the legal documents, on the basis of which have been carried out illegal acts, are considered illegitimate and invalid from their beginning. Georgia”s actions represent one of such cases.
In accordance with the law of procedure of exit from the USSR, autonomous republics, in the event of exiting a uniion republic of the USSR, possessed the right to independently decide the question of remaining in the USSR, and its own state-legal status. However, Georgia, violating the law of 3 April, 1990, passing a unilateral resolution, and deciding the issue of exit also for autonomous republics within her, left the Soviet Union. Up to the break up of the USSR, as is well known, Abkhazia raised the issue of the restoration of her status of a union republic, lost by the will of Stalin. Abkhazia not only did not want to exit form the USSR, but it voted for the preservation of the Soviet Union.
The Supreme Soviet of the Abkhazian Soviet Socialist Republic, realizing the illegality of the acts of Georgia, passed, on 25 August 1990, a Declaration on the state sovereignty of Abkhazia and a Resolution on the legal guarantees of protection of the safety of Abkhazia (Journal “Soviet Abkhazia” No.164, 28 August, 1990):
“The Declaration on the governmental sovereignty of the Abkhazian Soviet Socialist Republic was adopted by the 10th session of the Supreme Soviet of the Abkhazia ASSR, 11th summoning, on 25 August 1990.
. . . The Abkhazian Soviet Socialist Republic is a sovereign socialist state, created on the basis of the realization of the Abkhazian nation of her inalienable right to self-determination, and the command of the people in the determination of their own fate. The sovereignty of the Abkhazian Soviet Socialist Republic extends on the entire territory of the Abkhazian ASSR.
The Abkhazian Soviet Socialist Republic possesses all fullness of state power on its territory, aside from the rights voluntarily handed over by it to the USSR and the Georgian SSR on the bases of the treaties concluded with them . . .”
Leaving the USSR, Georgia illegally included the independent state of Abkhazia as one of its constituents, violating article 3 of the law “On the procedures of exit from the USSR,” and defying the basic norms of international law. Taking into account, that at that time the government of Georgia denounced all legislative acts passed in the period of the existence of the USSR and the RSFSR, beginning from 1921, the Abkhazian ASSR, introduced into the structure of the former Georgian SSR in 1931 as an autonomous republic, naturally should have been excluded from its constituency. This dictated also that Abkhazia, in accordance with Article 3 of the law “On the procedure of exit from the USSR,” accepted the decision to remain as part of the Soviet Union. In agreement with Article 2 a decision was made about the participation in the referendum of 17 March 1991 concerning the necessity of the preservation of the USSR as a renewed federation. The Abkhazian ASSR participated in this referendum in which, from 318 thousand people having the right to vote, more than 166 thousand took part (52.3% of the population), with 164, 231 people voting for the preservation of the USSR, i.e. 98.6%.
In accordance with Article 24 of the law of the USSR “On a nation-wide election (referendum) in the USSR,” the Central Referendum Commission established that the Republic of Abkhazia, with a majority of votes of its population, voted for the preservation of the USSR, and, correspondingly, to remain as one of its constituents.
Here it is necessary to say that even though the Georgian enclave of Abkhazia did not participate in the referendum, 51.6% of all the citizens having the right to vote spoke for the preservation of the Union.
In the resolution of the Supreme Soviet, arguments were cited confirming the illegality of the claims of Georgia with respect to the territory and statehood of independent Abkhazia, based on the historical process of development interrelations between these two countries. A series of decisions were passed further:
“1. To recognize that the Democratic Republic of Georgia, violating the treaty of 11 June, 1918, and also the agreement concluded earlier between the Abkhazian People’s Soviet and the National Soviet of Georgia of 9 February 1918, exercised in the second half of June 1918, military interference with the aim of forceful annexation of the territory of Abkhazia and of liquidating the independence of the Abkhazian people.
This act, violating the principle of international law, which forbids the annexation of a foreign territory by the use of force, was illegal.
2. To recognize illegal and invalid the part of the treaty, concerning the territory of Abkhazia, concluded between Georgia and the RSFSR on 7 May 1920 under conditions of military occupation of independent Abkhazia.
3. By the resolutions of the Supreme Soviet of the Georgian SSR of 18 November, 1989, of 9 March and of 20 June, 1990, all governmental structures that had been and were existing in Georgia since February 1921 were recognized illegal and invalid, from which logically follows that all contractual relations between Georgia and Abkhazia concluded by the former organs of state power are also illegal and the entry of Abkhazia into the Georgian Soviet Socialist Republic lacked legal basis. Consequently, the lawful form of the state of Abkhazia is the Soviet Socialist Republic of Abkhazia, created by the free will of the people of Abkhazia and proclaimed on 21 March, 1921…”
The formal ties of Soviet Georgia and Soviet Abkhazia arose in a certain historical situation and in a natural way they lost their strength, together with the disappearance of the Soviet government from the historical arena.
It is necessary to note one more important factor, determining the membership and attachment of Abkhazia to the USSR – the citizenship of its people. For this it is necessary to address the historical background. It is well known that Abkhazia, as a region, department, or independent principality, was part of the Russian dominion in Transcaucasia, together with the Tiflis, Erivan, and other provinces of the Russian Empire. The peoples of these regions were subjects of Russia and there was no discussion of citizenship to other countries or double citizenship, and there could not be. The ethnicity of the peoples living there was retained.
With the collapse of yet another Empire and the rise of a new state – the Russian republic (this occurred on the 1st of September, 1917), her legitimate organ – the Provisional Government – introduced in the country, comprising all the territories of the Russian Empire, the institution of citizenship. These were large-scale changes in legal regulation, also with regard to the issue of citizenship. All the former citizens of the Russian state, including residents of Transcaucasia, which in it turn includes Abkhazia, from this date acquired a new status, they became citizens of Russia. From this moment the operation of a principle began – the attainment of Russian citizenship “by right of blood,” i.e. if parents who are citizens of Russia give birth to children, the citizenship of the parents is automatically extended to the children.
After the October revolution the newly formed state was identified as the lawful successor of the Russian Empire, and correspondingly of the Russian Republic, and retained the recently introduced institution of citizenship. By the Decree of 11 (24) November the division of residents into ranks and estates was abolished and the privileges corresponding to these categories were eliminated. At the same time, the title of “citizens of the RSFSR” was generally confirmed for all residents of the newly formed state – the Russian Federation. On the 10th of June 1918 the Constitution of the RSFSR was passed, proclaiming all those who were included earlier in the citizenship of the Russian Empire citizens of the new state, i.e., the identification of a new republic took place, confirming a lawful succession from tsarist Russia and from the Provisional government. However individuals of those states that hastened to be separated from the RSFSR (Ukraine, Belorussia, Georgia), in accordance with the law of citizenship, also continued to be considered her citizens. The governments of such countries – of separatists, in particular Georgia, having obtained sovereignty on May 26, 1918, and having established their own independent states, renounced Russian citizenship. At that time, not even an agreement with Georgia on the right of option was signed, an agreement which would have provided for the creation of a Georgian state on its exit from the Russian Republic, acknowledging the choice of this state by the population of Georgia. Similar treaties were signed only with Latvia, Lithuania, and Estonia, which, by the conditions of the Brest Peace, remained independent. Therefore also in this instance the norms of international law, concerning the procedure of exit of a country from another state, were violated by Georgia.
Abkhazia, as an independent, sovereign state, through the institution of citizenship, continued to remain in the RSFSR and her residents had only Russian citizenship. This citizenship was retained in the period from 1918 to 1921, the time of the annexation and occupation of Abkhazia by Georgia, as residents of Abkhazia in this period made no claims about refusing the citizenship of the RSFSR, or about acquiring Georgian citizenship, either in the capacity of primary or dual, together with Russian. Moreover, if such a fact had also taken place, in the conditions of annexation it would have been juridically insignificant.
Soviet power was restored in Abkhazia on the 4th of March, 1921, which is confirmed by the radiogram to V.I. Lenin, I.V. Stalin and G.V. Chicherin of 31 March, at which time the independent Soviet Socialist Republic Abkhazia also was proclaimed and formed at the first Congress of the Soviet of peasants and workers. From the moment of liberation of Abkhazia from Georgian occupation, i.e. from March 1921, the country makes a choice in favor of remaining in the RSFSR in the capacity of a Union Republic, preserving by this action Russian citizen status for the population of Abkhazia.
As subjects of international law, on the 16th of December, 1921 the SSR Abkhazia and the SSR Georgia signed a Union treaty, in agreement with which a union was concluded with the Georgian Republic on federated contractual bases. Part of responsibilities of the Republic of Abkhazia was given over into joint competence with Georgia. At the same time the sovereignty of the SSR of Abkhazia as well as her territorial integrity were preserved, and this had no effect on the citizenship of Abkhazians or other ethnic groups in the republic. The peoples of Soviet Abkhazia continued to possess Russian citizenship. At the moment of signing of the mentioned Union treaty Abkhazia and Georgia enjoyed the rights of equal states, not connected with one another in a legal relationship. They continued in such equality after the signing of the mentioned treaty until February 1931.
The union of the sovereign republics of Abkhazia and Georgia (which at that time was part of a federation of Transcaucasian states) on an equal bases was secured also in the Constitution of the SSR of Abkhazia (April, 1925), Article 5 of which reads: “the SSR Abkhazia is a sovereign state, bearing state power on its own territory independently from other powers. The sovereignty of the SSR of Abkhazia, in view of her voluntary entry into the Transcaucasian Soviet Federated Socialist Republic (TSFSR) was restricted only in the limits and by the articles indicated in the constitutions of these Unions. . . .” Firstly, the residents of Abkhazia, from the realization of this unification, did not lose Abkhazian citizenship and did not obtain Georgian, and secondly, the voluntary entry on an equal basis provides also for an equal possibility of the exit of Abkhazia from this union.
The statute on citizenship of the USSR from 1931 acknowledged that each individual living on the territory of the USSR is recognized to be a citizen of the USSR if he does not have the citizenship of a foreign country. The same document included an additional decision that if a citizen of the USSR (that citizenship being primary) is also a citizen of the united republic where he lives, then the choice of citizenship of the united republic is only the prerogative of each citizen of the USSR individually. The people of Abkhazia on their own basis made a decision in favor of: a) the preservation of citizenship of the USSR; b) the acquisition of the citizenship of Abkhazia, which is possessed to the present day.
The law on citizenship of the USSR of 1978 defined as belonging to the citizenship of the country, and, correspondingly, to Russian citizenship, those people who had such citizenship on that date, i.e. it acknowledge the principle of citizenship “by right of blood” and “by right of birth.” Individuals born on the territory of Russia up to the signing of the treaty of the formation of the USSR up to the 30th of December, 1922, (in the signing of which Soviet Abkhazia participated as a sovereign state, one of the founders of the Soviet Union) are recognized as citizens of Russia “by right of birth,” even if they afterwards lost this citizenship. The Law on citizenship of 23 May 1990 went in the same way. Both of these laws, accordingly, acknowledged the people of Abkhazia as having Russian citizenship.
The laws of 1978 and 1991 gave citizens of the USSR the right to live in any of its parts, in any union republic, remaining, by that, citizens of the USSR, and to have the additional accompanying citizenship. This principle of republican citizenship made possible the migration to union and autonomous republics with special ethnic composition and character, for people having an ethnicity unusual to these countries. Under this principle, emigrants possessing Georgian (supplementary) citizenship headed to Abkhazia from the regions of Georgia, and by their entrance created conditions that lead to the destruction and devastation of the ethno-politcal structures there. It is necessary to note, however, that the juridical legalization of the union republic’s and autonomous republic’s citizenship did not formally exist, and for this reason, during the existence of Soviet power only Russian citizenship applied in Abkhazia.
The practice of the last decade of the 20th century showed the following: as citizenship is a legal issue, uncontrolled changes of a demographic situation through the resettlement of people of a different citizenship in a country, leads to irrevocable consequences, even to the changing of the political status of a country, as well as to the replacing of the ethnic composition of the population of a country, or genocide, or the creation of the fifth column, setting as its task the overthrow of the existing political structures in a state, as it happened in Abkhazia.
The above principles, reaffirming the possession of the people of Abkhazia of Russian citizenship, became in the present time the basis for its official confirmation by means “of the acquisition of citizenship in the order of registration.” Since the peoples of Abkhazia like the populations of other former republics of the USSR (nowadays – CIS), not only had the right to Russian citizenship, but were by definition citizens of the Russian Federation, as nothing to the contrary was stated in the referendum on 17 March, 1991. In order to receive a document acknowledging the Russian citizenship a simplified procedure was introduced. The legalization of such a document is executed only by organs of internal affairs.
By 1991, on the territory of the former GSSR, which also had included the Autonomous SSR of Abkhazia, two independent of each other states appeared – Georgia, claiming its independence and leaving the USSR, and Abkhazia, continuing to remain a subject of the USSR. Consequently, the state-legal relationships between Abkhazia and Georgia, that had been created and regulated by the soviet legislation, were discontinued, also on the basis of soviet legislation.
It is a fact that from the moment of the adoption by Georgia of the Act on independence on 25th August 1990, and from the moment of the breakup of the USSR on 21st December 1991, Abkhazia remained subject of the latter, and in this capacity participated in the negotiations in which the question of the reformation of the USSR was decided. The Chairman of the Supreme Soviet of Abkhazia in that period was due to his position also a member of the Soviet of the Federation of the USSR (after its abolition – a member of the State Soviet of the USSR) and a member of the Supreme Soviet of the USSR.
Abkhazia did not take part in the elections of the president of Georgia or in the work of its organs of power and consequently was not able simultaneously to be a subject of the USSR and part of independent Georgia. Further, in accordance with the conditions for the exit of republics from the USSR, the Supreme Soviet of the USSR did not make decisions about the exit of autonomous Abkhazia together with Georgia. After the cessation of the existence of the Soviet Union, the Supreme Soviet of Abkhazia, on 23rd June, in accordance with the conditions of the procedure of exit from the USSR, made a decision about the abolition of the Constitution of Abkhazia of 1978 and about switching over to the Constitution of 1925, according to which Abkhazia was a sovereign state and a subject of international law.
It is necessary to note that actions of the Abkhazian SSR were determined by the law of the USSR “On the division of power between the Union of SSRs and subjects of the federation” of 26 April 1990 (Vedomosti of the Congress of the Deputies of the People of the USSR and the Supreme Soviet of the USSR, 1990, No. 19, pp. 429-433), the articles of which gave right to the following:
Article 1. “… Autonomous republics – soviet socialist states, are subjects of the Federation – the USSR. Autonomous republics and autonomous formations enter into union republics on the basis of the free self-determination of the people and possess all authority of state power on their territory, aside from responsibilities given over by them to the charge of the USSR and union republics.
The relations of autonomous republics and autonomous formations with respective union republics, are determined by the agreements and treaties concluded in the frames of the Constitution of the USSR, the constitutions of union and autonomous republics and the present law.
Article 6. To the exceptional charge of the Union of Soviet Socialist Republics represented by its highest organs of state power and government, the following competences are attributed:
2) Acceptance into the USSR of new union republics, the confirmation of the formation of new, and changes of status of existing autonomous republics, autonomous regions, and autonomous districts.
3) Resolution of disputes between union republics, between union and autonomous republics, and autonomous formations in the case of their appeals on this question to the organs of the USSR:
Article 11. … In case of contradiction of the constitution of union and autonomous republics and the Constitution of the USSR, the Constitution of the USSR takes supremacy. In case of contradiction of laws and other acts of the highest organs of state power of union and autonomous republics and to the Constitution of the USSR, to the laws of the USSR and other acts of the highest organs of state power of the USSR, those acts are in effect, that are issued by the organs of the USSR.”
The position of the Abkhazian side, that had spoken for the creation of a renewed Union, did not come into contradiction either with international norms or with the then acting legislation of the USSR. Taking into account that the Republic of Abkhazia, at the moment of the formation of the Georgian Democratic Republic (26 May 1918) was already a sovereign state, and in view of the fact that the state-legal relations between Abkhazia and Georgia arose on the basis of the treaty of 11 June 1918 and a series of treaties and agreements of later dates, Georgia was not supposed by unilateral action to change the character of interrelations with Abkhazia and, still more, to consider it as its vassal. Besides that, this contradicted the legislation of the USSR regulating relations of union and autonomous republics. Therefore, the actions of Georgian leadership resulted in the breakup of state-legal relations between Georgia and Abkhazia. The documents passed by the Supreme Soviet of Abkhazia establish that as a result of the decisions of the Supreme Soviet of the Georgian SSR, mentioned earlier, the entry of Abkhazia into Georgia in any capacity was devoid of legal basis.
As a result of the denunciation by Georgia of all legislative acts and legal documents passed in the period from 1921 to 1991, including those concerning the mutual relations with Abkhazia, and also as a result of the unilateral adoption by Georgia of the decision to exit the USSR and create an independent state (which is contradictory to the treaty relations between Abkhazia and Georgia in accordance with which the entry of the Abkhazian SSR into Georgia was determined by the entry of the latter into the TSFSR and USSR), the treaty concerning the entry of Abkhazia into the Georgia automatically lost power. As Abkhazia continued to remain in the Union, correspondingly, it continued also to remain a sovereign independent state in the USSR in the borders of 1918 and subject to international law.
In the historical-political literature, covering the period of exit of Georgia from the USSR, reference is made to the documents denouncing the legal acts and mutual relations of indicated states. The primary sources themselves, of the documents, are not always accessible, for which reason we permit ourselves to bring in excerpts of such and will give a short commentary on their contents.
One of the documents leading to the cancellation of all mutual relations between the countries within a common sate- the USSR and Georgia, was the decree of the extraordinary 13th session of the Supreme Soviet of the Georgian SSR “On the guarantees of the protection of the State sovereignty of Georgia” of 9 March 1990. On the basis of the conclusions of the Commission of the Supreme Soviet of the Georgian SSR, it was decided that Soviet Russia violated the treaty of 7 May 1920 by bringing in military forces into the territory of Georgi. This was classified “from a legal point of view as military intervention and occupation” … “and from a political point of view – actual annexation.”
“Condemning the occupation, and, in fact, annexation of Georgia by Soviet Russia as an international crime, aiming towards the annulment of the effects of the treaty … and towards the restoration of the rights of Georgia recognized by the Soviet Union according to this treaty, the Supreme Soviet of the Georgian SSR declares illegal and invalid the union worker-peasant treaty between the Georgian SSR and RSFSR of 21 May1921 as well as the Union Treaty on the formation of the Federated SSR Transcaucasia of 12 March 1922” (Vedomosti of the Supreme Soviet of the Georgian SSR, Tb., 1990, No. 3, pp. 38-40; Regional conflicts in Georgia – South Ossetia autonomous region, Abkhazian ACCR (1989-2001).Vol. political-legal acts. Tbilisi, 2002, p. 225).
We cannot dispute the acts of the Georgian side, however it is necessary to note that: a) Russia did not recognize the fact of the annexation of Georgia, therefore, the denunciation of the indicated treaties and actions of Georgia are de facto unilateral; b) raising the issue of the allegedly illegal character of the above mentioned treaties is groundless, as these treaties were concluded by Russia with the then legitimate Government of Georgia, which had led the country for many decades – from 1921 to 1991; c) a country has a right to recognize the illegality of these or other treaties in the case of the change of the country’s state system. However this inevitably leads to a chain of political and legal consequences, including those that affect interrelations with neighboring and other countries. Georgia, with this act, violated an additional secret provision of the Treaty of 7 May 1920 according to which the Communist party had the right to be functioning in Georgia, not to mention the fact we noted earlier that the inclusion of the territory and statehood of the independent sovereign state Abkhazia in Georgia was illegal. This gives the right to review and denounce this treaty.
By its supplement to the mentioned Resolution of 9 March 1990, on the 20 June, 1990 the Supreme Soviet of the GSSR decided “to add to the resolution a paragraph of the following contents: “ … the Supreme Soviet of the GSSR declares illegal and invalid all acts that had abolished the political and other institutions of the Democratic Republic of Georgia and had replaced these institutions with political and legal establishments dependent on outside power (decision of the so called Revkom – Revolutionary Committee of Georgia of 16 and 26 February, 24 March 1921 and others).” (Vedomosti of the Supreme Soviet of the GSSR, 1990, No. 6, pp. 39-40. Regional conflicts in Georgia – South Ossetia autonomous region and the Abkhazian ASSR (1989-2001). Vol. Political and legal acts. Tbilisi, 2002, p. 229).
The present addition, together with the basic document of 9 March, 1990, acknowledges in the opinion of the contemporary Georgian leaders, the illegitimacy not only of the governing organs of Georgia which had been working on its territory from February 1921 to 9 March 1990, but also disavows all decisions of these “illegal,” “illegitimate” organs of power on its territory. But this, in its own way, signifies that the conclusion of all treaties with Abkhazia was illegal: the Treaty of unification of 16 December 1921 on the federated, contractual basis of the SSR of Abkhazia and of the Georgian Republic and the inclusion through it of Abkhazia in the Transcaucasian Federation (History of Soviet Communism in documents, 1917-1956, M. 1957, p. 339), ratified by the first Congress of the Soviet of Abkhazia on the 17th of February, 1922; articles of the Constitution of Abkhazia of April, 1925, and of Georgia, by the Transcaucasian SFSR and USSR, concerning the entry of Abkhazia in these structures (the Constitutions of Abkhazia and Georgia were confirmed in the congresses of these republics in 1927); the act of reorganization of Abkhazia into an autonomous republic in the composition of the GSSR on 19 February 1931 and all following acts, resolutions, and decrees of states, parties, and other organs of power of all levels.
It is especially necessary to stress the unlawfulness and illegality of all laws and acts of the Government of Georgia concerning the emigration in this period of ethnically Georgian populations from administrative regions of the territory of Georgia into Abkhazia, being none other than a purposeful policy of the Georgian leadership of the GSSR, agreed with the Georgian leadership in Abkhazia, as this inevitably led to the alteration of the demographic situation in Abkhazia, and the replacement and annihilation of the Abkhazian ethnos.
Our conclusion is supported by the fact of the cessation from 2 January 1992 of the Constitution of Georgia, which had had legal power from 1921 to 1992, and had determined the political and state policy of Georgia in the USSR and of Abkhazia in the indicated states. This fact is underlined in the Declaration of the Military Council of the Republic of Georgia of 21 February 1992, which became the final point in the determination of mutual relations between Russia, Georgia, and Abkhazia. This declaration emphasizes that the Republic of Georgia is the only legal successor of the Democratic Republic Georgia 1918-1921 by the command of its Constitution of 21 February 1921. (Journal “Sakartvelos Republic,” No. 36, 25 February 1992, in Georgian language; Regional Conflicts in Georgia – South Ossetia autonomous region and Abkhazia ASSR (1989-2001). Vo.l of political and legal acts. Tbilisi, 2002, pp. 269-270).
By liquidating the legal basis determining its interrelations with its neighbors, the government of Georgia, confirmed the absence of state-legal relations with Abkhazia from the moment Georgia declared its independence. Firstly, because of the violation of the conditions of the above-mentioned union law on the exit of a union republic from the USSR, secondly, because although Abkhazia was mentioned as a subject in the 1921 Constitution of Georgia, this document was worked out and passed by the Constituent Assembly of Georgia unilaterally without the consent of the Abkhazian side, therefore it was also not ratified by the Abkhazian parliament and, correspondingly, did not come into power. Thirdly, the Union treaty with Abkhazia of 16 December 1921 lost its power because of the denunciation by Georgia of all legal acts concluded after 25 April 1921, and because of Georgia’s violation of the conditions of the treaty.
Drafts of a new Constitution were prepared and published in Abkhazia. They were discussed by the public through mass media. A session of the Supreme Soviet of Abkhazia was scheduled for the 14th of August, 1992. The session was convened specifically to discuss these draft documents as well as the draft Treaty on the relationship between the Abkhazian Republic and the Georgian Republic, prepared by one of the authors of the given article (T. Shamba, Draft Treaty on the relationship between the Republic of Abkhazia and the Republic of Georgia. Abkhazia, 1992. No. 23 (June)). These drafts could have been adopted or rejected. But it was a civilized, parliamentary way of dealing with these issues – it was neither aggressive, nor separatist in nature.
Eye witnesses of those events describe them in the following way: “Responding by aggression and genocide to the appeal of the Abkhazian side to solve the problem politically through parliamentary discussions, Georgia defied the fundamental principles of international law. And hardly anyone will believe that a hundred thousand strong Abkhazian nation was interested in having this unequal war. The actions carried out by the Georgian occupants from the first minutes of invasion into Abkhazia would force anyone to take up arms and defend oneself. Is it aggressive separatism that the people of Abkhazia took up arms to defend themselves?” [Shamba C. On the question of the legal, historical and moral basis of the right of Abkhazia to independence. International law, 1999, M. No. 4, p. 225].
“The war in Abkhazia began with the introduction of Georgian forces in Abkhazia on the day when the parliament of the republic was supposed to discuss the afore-named plan of the federal treaty, which should have been presented to the Georgian side. Georgia brought down on Abkhazia all the might of its military potential, including combat aviation and armored tank forces. In response to the generally accepted, civilized, parliamentary methods of resolving problems, proposed by Abkhazia, Georgia used brutal force. In the coarse of thirteen months the people of Abkhazia were subjected to extermination, the cultural monuments of the nation where destroyed, and all the economic infrastructure of the republic was completely destroyed and ransacked. During the Georgian occupation of a large part of Abkhazia thousands of people were forced to flee the country. The governments of Israel and Greece organized evacuations of Jews and Greeks. Abkhazia was put in a situation when the only possibility of self-preservation became armed resistance to the aggressor” [Shamba S. The negotiation process: hopes and disappointments. Abkhazia – Georgia: Obstacles on the path to peace. Sukhum 2000. pp. 4-12).
This military intervention was undertaken with the aim to put in practice by the force of arms the slogan “Georgia - only for Georgians,” even though, as is well known, Abkhazia is not Georgia.
Inspired by the Georgian leadership Russia’s tough politics in relation to Abkhazia was aimed at forcing the latter to reunite with Georgia. However, the several years blockade of Abkhazia by Russia, which did not serve the interests of the Russian or Abkhazian people, did not give the expected outcomes. The people of Abkhazia, having suffered innumerable losses and destruction in an unwanted war, and being subjected to inhuman deprivation by the outside world, did not display the slightest aspiration towards an association with Georgia. The basis of the contemporary socio-political reality lies in the historical background of Abkhazian- Georgian relations, which to a large extent explains the distribution of powers and interests in this geopolitical triangle.
Already after the war in 1994 the parliament of Abkhazia, considering all the above, adopted a new Constitution, that proclaimed the Republic of Abkhazia a sovereign, democratic, state, based on law. This state historically since 1917 was legal according to the right of the people to self-determination, and in modern times its sovereignty was reconfirmed by bringing of the new Constitution into action.
Since several problems on the question of the sovereignty of Abkhazia remain unclear, in particular – the recognition by the world community – legal expertise of the juridical situation, in connection with the claims of Abkhazia to independence and statehood, was required. The necessary documents were submitted to a specialized non-governmental international organization “Community of Lawyers for Cooperation” (СЮСАТР), which performed an independent expertise and issued the following document:
“Conclusion on the legal appraisal and nature of the “Declaration on measures for political settlement of the Georgian-Abkhazian conflict.”
As a result of the analysis of the legal situation of Abkhazia and its interrelations with countries of the world community, authors of the Declaration make the following conclusions:
“The Declaration on measures for political settlement of the Georgian-Abkhazian conflict is an international (inter-state) treaty.
Both conflicting sides appear in it as equal subjects of international law, not connected with one another through state-legal relationships.
By its content the Declaration attests to the intention of each side to set up confederative relations.
Professor of international law R.A. Tuzmukhamedov.”
The following comes out of the study of the latest period of the existence of Abkhazia:
1. In connection with the imminent breakup of the USSR, Georgia, by declaring the independence of its state, left the Soviet Union in a unilateral action, breaking off all bilateral, multilateral, and international treaties which determined itsbeeing within the USSR.
2. In the period since 1989 Georgia passed a series of state acts, denouncing all international treaties and agreements with Russia and Abkhazia, which had applied since 24 February 1921.
3. Leaving the USSR in unilateral action, Georgia made an unlawful decision about the exit from the Union also of Abkhazia, which on the basis of the above documents, was a sovereign and independent state. Abkhazia had the right to decide independently of whether to stay in the USSR, and had the right to self determination as an independent or to remain in the composition of a union republic that was exiting the USSR. Therefore, illegally and in violation of the international law, the acting legislation and the liabilities in accordance with the signed treaties, Georgia declared Abkhazia to be territory under Georgia’s jurisdiction.
4. The Supreme Soviet of the ASSR and the Abkhazian government, not agreeing with these illegal decisions, made a decision to remain in the USSR, as the Constitution of 1977 allowed. Furthermore, the Law of the USSR of 3 April 1990 acknowledged the right of autonomous republics to decide independently the question about the fate of the sovereignty of their own country.
5. On the basis of the Law of the USSR of 3 April 1990, the Supreme Soviet of Abkhazia took a decision on the statehood of the country – from 25 August 1990 Abkhazia was proclaimed a sovereign state.
6. Abkhazia, being in the legal framework of the USSR, in accordance with legislation held referendum on 17 March 1991, which acknowledged that the majority of the population of the country expressed a will to remain in the USSR. Furthermore, since 1 September 1917 the Abkhazian people obtained the citizenship of Russia, which has not been broken up to the present time. The population of Abkhazia never officially refused this citizenship (through referendum or other means) and never accepted the citizenship of another country.
7. Being founded on the decision of the people in accordance with this referendum, through the fact of the declaration of Abkhazia as a sovereign state, and on the basis of the belonging of the people of the country through the institute of citizenship to Russia, the Supreme Soviet of Abkhazia passed a resolution on ceasing the action of the Constitution of Abkhazia of 1978 and at the same time on provisionally using of the Constitution of Abkhazia of 1925.
8. At the moment when discussion of the Draft Treaty, prepared by one of the authors of this book, on the fundamental relations between the Republic of Abkhazia and the Republic of Georgia should have begun, Georgia began military intervention against Abkhazia, which continued from August 1992 to September 1993.
9. After the war the Supreme Soviet of the Republic of Abkhazia in accordance with will of its people, on 26 November 1994, passed a Constitution, article 1 of which reads: “The Republic Abkhazia (Apsny) is a sovereign, democratic, legal state, historically confirmed by the right of people to free self-determination.” From this moment the people of the country obtained a different citizenship – Abkhazian.
The Georgian side does not accept the decisions of the government of Abkhazia, which are directed toward the acknowledgement of the sovereignty, which historically was diminished through the fault of Georgia. Georgia counteracts through all possible means the functioning of the Republic of Abkhazia on the basis on the Constitution of 1925. The question arises: why does Georgia has the right to return to its Constitution of 1921, proclaiming sovereignty and independence, and Abkhazia is not allowed to return to its own Constitution of 1925 ? Obviously the reason is that the Constitution of 1925 considers Abkhazian SSR independent and sovereign. This demonstrates Georgia’s double standard.
This problem should be considered from the points of view of the research on the acting legal norms of Georgia performed by the Institute of State and Law of the Russian Academy of Sciences (RAC). The full text of the “Expert opinion on the state-legal relations between Georgia and Abkhazia at present ” is given in one of our works (Shamba T.M. National relations and the state-legal politics of Russia. M., 1999, p. 121). Below we introduce excerpts from this work.
“…In agreement with the Constitution of Georgia of 1995, Abkhazia is a territorial unit of Georgia (Part 4, Article 3) with undetermined status, while the status of Abkhazia will be determined after “the full restoration of the jurisdiction of Georgia over all territories of the country” (Part 3, Article 4).”
It is necessary to remember that the indicated Constitution of Georgia was passed when Abkhazia already was no longer within the territory of Georgia, and the overwhelming majority of the citizens of Abkhazia did not directly or through their representatives take any part in the working out or the adoption of the Constitution of Georgia. There are examples in international practice of attempts to decide the fates of peoples through the adoption of a constitution without people’s participation and ignoring their opinion. However such attempts finish without results. For example, the 1958 Constitution of France contained a section devoted to the Commonwealth of states, France hoped to create under its aegis from its former colonies from the time of their acquisition of independence. However, young independent states treated this unilateral initiative of France, and conditions of the main French Constitution without enthusiasm and the respective provisions of the French constitution stayed inactive until finally they were abolished in 1995.
At the same time the Constitution of Georgia speaks about “the restoration of the jurisdiction over all territories of the country.” We will note that at the time of adoption of the Act on the independence of Georgia of 26 May 1918, Abkhazia did not enter into the composition of Georgia, and was occupied by Georgian forces– at the end of June 1918. Further, in February 1918, between the authorities of Georgia, preparing for the declaration of state independence, and the authorities of Abkhazia, an agreement was concluded in which the existence of a single, undivided Abkhazia was recognized on the territory from the Ingur river to the Mzymta river.
However Georgia, in violation of all international legal norms, thinks that it is right to pass unilateral acts and decisions with regard to Abkhazia and to dictate the conditions of her existence. This is in practice what Georgia is doing with the support of the international community and indifferent attitudes of the former soviet republics.
Developing this idea, the authors of the “Expert opinion…” make the conclusion that “from the point of view of the legislation of Georgia, passed in 1989-1991 and developed in the form of amendment in later acts, Abkhazia cannot be considered as a subject of legal relations within Georgia, and state-legal relationships between Abkhazia and Georgia were ended.”
The adoption in 1995 of the Georgian Constitution, in which the legal framework, laid by the Constitution of 1921, is further developed and aims at the legalization of the inclusion of Abkhazia in Georgia. This happens despite the existing legal norm according to which unilateral adoption by any state of a constitution, providing for the inclusion of a given territory that has its own bodies of power, into this state without registering the opinion of the population of this territory, cannot have any legal ramifications. In just the same way, conclusion of treaties by third states with the state that considers a given territory to be under its jurisdiction, disregarding the opinion of the population of this territory, (treaties, in which claims to the indicated territory are not doubted), does not mean that the population of this territory cannot realize its right to self-determination and separate itself from the composition of this state. For example, international treaties, concluded with Great Britain and France before the break up of their colonial empires did not at all interfere with the appearance of new independent states that replaced their colonies. Moreover, the international treaties (only if they did not concern exceptionally colonies), did not automatically cease to act after the liquidation of British and French colonial rule, even though it is evident that territories under the control of British and French governments were reduced. These governments were not able to carry responsibility for the execution of treaties on the territory of their former colonies. It is impossible to decide the fate of a population of any territory without considering the opinion of the population itself; the will expressed by elected representatives of this population is reflected in the fact that a Russian military contingent is located with a peacemaking mission in Abkhazia according to a tri-lateral decision of the governments of Russia, Georgia and Abkhazia.
To give legal grounds for considering Abkhazia as part of its territory, the Georgian side refers to the Russian-Georgian treaty of 7 May 1920, which recognizes the river Psou as the border between the RSFSR and the Democratic Georgia, while the Sukhum district is included in Georgia. However, from the point of view of international law, the fact itself of its signing is a violation of international norms, and its contents from a legal point of view is insignificant.
Further in the “Expert opinion…” it is stated: “As Georgia (as is seen from the aforementioned legislative acts of 1989-1991) not only puts to question all the decisions and relations with regard to Georgia in the period of the existence of the USSR, but even legislatively disavows them, it is quite logical that the question of the legitimacy of the territory of Georgia under soviet power remains open, as remains open the question of the legitimacy of Georgia’s jurisdiction over Abkhazia. International law recognizes the change of status of borders from administrative into state as a result of exit from the state of its composite entity with its own borders, and the reorganization of this entity into a new independent state. However universal practice has many examples when as a result of the reorganization of some entities within a state into independent states new borders were drawn. For example, Ireland was understood both before it was conquered by England and when it was within the British Empire, as stretching over the territory of the whole island. However, at the time of the granting to Ireland of the status of a dominion (officially called The Free Ireland State) in 1920-1922, and then at the time of the declaration of independence of the Irish Republic in 1937, the northern part of Ireland remained within the United Kingdom of Great Britain and Northern Ireland. At the time of the breakup of the Austro-Hungarian Empire in 1918-1929, а series of independent states were formed. In particular, Czechoslovakia appeared on the map. Meanwhile Czechia before the entry into the state of the Habsburgs was an independent state, and within the Empire it had administrative borders. On the other hand, before the formation of the Austro-Hungarian Empire Slovakia administratively was part of Hungary, and within the Empire also it was considered as part of Hungary. At the same time, Transylvania, which traditionally was part of Hungary, was given over to Romania as a result of peace treaties. More recent examples are the Dayton agreements, which provided for the creation of a Serb Croat-Muslim Federation on the territory of the Bosnia and Herzegovina Republic. Completely new borders that had not existed before, were introduced in the region.”
Further, the authors note that “in universal practice there are examples of a division into several independent states of one administrative-territorial unit, as soon as it leaves the composition of another state. For example, the Indian Empire was under the dominion of the English crown from 1877 to 1947, and then upon declaration of independence, three states emerged in its territory,: Burma, the Indian Union, and Pakistan (later the state of Bangladesh was separated from Pakistan). There are no grounds to insist that international law guarantees, in violation of the will of the people living in former Soviet union republics, the preservation of unitary states, formed on the basis of former union republics as a result of the break up of the Soviet Union. The existence of the present administrative borders of Abkhazia makes it possible to believe that an independent state could be formed within the same borders. As a rule, the right to self-determination of people in the form of an independence state is easier to realize if the people in a specific territory within a state, already haves self-government and effective institutions of power. It has already been discussed that the independent institutions of power in Abkhazia were already beginning to be formed in December 1917 (not to speak of the centuries-old history of Abkhazia’ statehood), as well as after Abkhazia became an autonomous republic in Soviet Georgia within the Soviet Union. In particular, according to the Constitutions of the USSR of 1936 and 1977 and to the Constitutions of Georgia of 1937 and 1978, the Abkhazian ASSR as well as other autonomous republics had the attributes of a state: their own Constitution, legislature, state symbols etc.”
Today historical justice has been restored. Abkhazia is a state with a clearly demarcated territory, Constitution, system of government and political power, legislature, concrete national interests and priorities in external affairs. De jure the sovereign Republic Abkhazia is independent. It does not ask anything from anyone or infringe on anyone’s interests. It insists on only one thing: on the recognition by the world community de facto of its natural right to existence and on its inclusion in the normal system of international relations.
It is necessary to mention one additional question. After the exit of Georgia from the USSR and the reconstruction of its own statehood, it gave up Russian citizenship and restored its own. Abkhazia, on the other hand, having obtained independence, sovereignty, and its own statehood on the basis of the listed above circumstances, retained Russian citizenship and instituted Abkhazian citizenship as well. However, on the territory of the independent sovereign state of Abkhazia, there are Georgians with Georgian citizenship. They refused to take Russian citizenship and did not wish to receive the Abkhazian one. A similar situation took place in practically all the states of the post-soviet space. This problem was decided everywhere in a simple way: people of a non-titular nation should decide on their citizenship regardless of their number in a new sovereign state, which was the case, for example, in Kazakhstan, where representatives of the titular nation represented only 40 percent of the population. There were various possibilities for solving the problem such as: accepting the citizenship of a country of residence; resettlement in a country of one’s citizenship; residence in the country without citizenship with limited rights (a number of limitations, including the voting system). This is a problem that should have been decided in Abkhazia long ago, since the migration into the country of different people, in particular those of Georgian nationality, without their acceptance of Abkhazian citizenship, is fraught with new problems.