Lawyers, Guns, and Money: International Law and the Secessionist Conflict in Moldova

As I mentioned in a previous post, one of the issues that Russia did not want discussed at the G-8 summit was the status of the “frozen conflicts” in the former Soviet Union. I have spent the last year and a half researching and writing a report for the New York City Bar on one such conflict in Moldova. Last week I was in Chisinau, Moldova, for a Parliamentary conference on the report and its results.

Moldova is the poorest country in Europe and it is enmeshed in a seemingly intractable separatist conflict involving ethnic tensions, Russian troops, Soviet-era arms stockpiles, smuggling, money-laundering, and corruption. Bordering Romania and Ukraine, with a majority of ethnic Romanians, it is a country that has been largely overlooked by the West. The report examines the key legal issues of this “frozen” conflict and assesses the legal or quasi-legal arguments made by the Government of Moldova and the separatists.

At issue is who should control Transnistria, a strip of land roughly the size of Rhode Island nestled between the Dniestr River and the border of Ukraine. Transnistria contains Moldova’s key industrial infrastructure, power plants, and, importantly, a significant stockpile of Soviet-era arms. Since 1992, it has been under the effective control of a separatist regime that calls itself the Transnistrian Moldovan Republic (“TMR”).

In late May 2005 the NY City Bar sent a mission (of which I was a member) to assess the international legal issues raised by the attempted secession of TMR from the Republic of Moldova. The other members of the mission were Barrington D. Parker, Jr., a United States Circuit Court Judge in the Second Circuit; Robert Abrams, a partner at Stroock & Stroock & Lavan LLP and former Attorney General of the State of New York; and Elizabeth Defeis, Professor of Law and former Dean of Seton Hall University Law School. It was led by Mark A. Meyer, a member of Herzfeld & Rubin, P.C., and the Chair of the European Affairs Committee of the NY City Bar.

(For those of you wondering why the NY City Bar would send a legal assessment team to Moldova, I note that the NY City Bar’s work historically has not been confined to New York. In fact, the Transnistria mission is not the first foreign mission by a committee of the City Bar. Over the past twenty-five years, it has had missions to places as diverse as Cuba, Singapore, Malaysia, Turkey, Hong Kong, Argentina, Uganda, Northern Ireland, and, most recently, India.)

In preparing the report we met not only with U.S. Government specialists and members of the diplomatic community, but also traveled to Moldova (including Transnistria) and met with the key policy leaders in Moldova and in the breakaway region, including the President of Moldova and the leader of the Transnistrian separatists, as well as the senior advisers to both leaders. We also met with members of civil society groups.

The resulting report considers three key legal questions. The main issue, of course, is whether the TMR has a right under international law to autonomy or possibly sovereignty. This turned on an examination of what “self-determination” means in modern international practice. Beyond this, however, we realized there were two other issues that were central to the conflict.

One had to do with money. The leadership of the TMR, although it is not recognized as a state by any other country in the world, nonetheless has effective control of Moldova’s main industrial assets and it has decided to undertake what it calls a privatization program. In other words, it is taking the steel mills, electrical plants, and other assets under its control and selling them off to foreign companies. This is extremely lucrative. At issue: if Transnistria is formally reintegrated into Moldova is the government of Moldova required to respect the privatization contracts? Some of the foreign companies have “owned” and used these assets for years at this point. (There is actually another “money issue” related Transnistria’s use of the long border with Ukraine and proximity to the Black Sea port of Odessa for smuggling, but I’ll set that aside for now.)

The last major issue related to guns. In part this had to do with the guns of the Russian 14th Army. In 1992 the Russian 14th Army intervened on the side of the Transnistrian separatists in their battles with the Moldovan government and since then it has been garrisoned—over the objections of the Moldovan government—in Transnistria. There are also the guns of an aging Soviet-era arms stockpile in Transnistria that Russia has not withdrawn or destroyed. These “guns” issues—along with other actions ranging from energy politics to trade embargoes to providing expert assistance to the separatists—relate to the broader question of whether Russia is improperly influencing the domestic politics in Moldova to the extent that it is violating international law.

In other posts I’ll discuss a bit more about how we analyzed these questions and describe other impressions from the project. For now, the full report (including executive summary) and an abstract are available here. The NY City Bar’s press release is available here.