What the Tagliavini Report Fails to Consider

Having recently written about Russia's legal case for intervention in Georgia in the Fordham International Law Journal (volume 32, #5, May 2009), I would like to share some thoughts I have on the recently released Tagliavini Commission's report on last year's conflict in Georgia.

(1) “According to the overwhelmingly accepted uti possidetis principle, only former constituent republics such as Georgia but not territorial sub-units such as South Ossetia or Abkhazia are granted independence in case of dismemberment of a larger entity such as the former Soviet Union.”

Russia did, in fact, apply this principle, in the face of multiple efforts by the regions of South Ossetia and Abkahzia to secede, as well as throughout the regional military conflicts that have lasted the better part of the past two decades. In 2004, then Russian president Putin certainly followed this principle when he helped the newly minted president Saakashvili peacefully reintegrate the rebellious region of Adjaria.

But, in light of the persistent demands by South Ossetia and Abkahzia for full independence, it behooves us to ask at what point we begin to take Georgian sovereignty seriously; i.e., when ute possidetis begins to apply to the rebellious provinces vis-à-vis Georgia, as the larger sovereign entity, rather than to the USSR, which has been defunct for nearly two decades?

(2) “Among major powers, Russia in particular has consistently and persistently objected to any justification of the NATO Kosovo intervention as a humanitarian intervention. It can therefore not rely on this putative title to justify its own intervention on Georgian territory. And as a directly neighboring state, Russia has important political and other interests of its own in South Ossetia and the region. In such a constellation, a humanitarian intervention is not recognized at all.”

Both of these arguments, that Russia should not have intervened because (1) it does not acknowledge such a justification in Kosovo; and (2), it has significant other interests in the region, strike me as weak.

Surely, it is not hard to conceive of circumstances where a state might advocate humanitarian action in one region, while opposing it in another. This is so commonplace as to be considered intrinsic to the behavior of states, and therefore hardly a viable criterion.

On the second point, nations will define their interests as they see fit, and very often their most intense expression of them is manifested toward their neighbors. Indeed, proximity has typically been an argument in favor of humanitarian intervention, though rarely more explicitly than in Theodore Roosevelt's December 1904 annual message to Congress:

"If a nation shows that it knows how to act with reasonable efficiency and decency in social and political matters, if it keeps order and pays its obligations, it need fear no interference from the United States. Chronic wrongdoing, or an impotence which results in a general loosening of the ties of civilized society, may in America, as elsewhere, ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, however reluctantly, in flagrant cases of such wrongdoing or impotence, to the exercise of an international police power."

While such brazen indifference to the distinction between morals and interests may sound jarring to us today,that does not mean that no meaningful distinction between the two can be drawn.

An appropriate standard might be this: Does the intervening power subsequently take advantage of its intervention to advance previously held specific non-security and non-humanitarian interests? I believe that this can be determined relatively objectively, with the greatest controversies most likely arising from preferential treatment accorded to the trade and commercial interests of the intervening state, particularly if these are made at the expense of non-belligerent third parties.

(3) “Former Soviet citizenship is not considered sufficient grounds, since this status had already been translated into Georgian citizenship at the time of independence. . . . They were still citizens of Georgia at the time of the armed conflict of August 2008, and in legal terms they remain so to this day unless they had renounced or lost their Georgian nationality in regular ways.”

The report suggests that Russian citizenship, even though freely chosen by the majority of South Ossetians and Abkhaz should be considered invalid and, as a result, its use as a justification for military actions rejected.

When the fighting between Georgia and these two enclaves erupted in 1991, however, all its inhabitants were Soviet citizens. This is the only thing commonly acknowledged by all sides. Many Abkhaz and South Ossetians further argue that they were never Georgian citizens because their armed struggle for independence began before Georgia declared its own independence from the USSR.

To subdue these regions, Georgia has several times attempted to impose economic sanctions against these regions, including the denial of Georgian passports. Without a valid passport, local residents could not travel abroad, could not collect their pensions, and could not access any social or public medical services. As living conditions in these regions deteriorated, Tbilisi reasoned that the local residents would have no choice but to relocate to Russia, or submit to Georgian authority. Needless to say, this did not endear them to the local residents.

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