Following up on my earlier posts on the separatist crisis in Moldova (see chain of links below), here is my summary of the legal issues that we considered in preparing the NY City Bar’s report on the on the Transnistrian conflict. While a blog post can’t go into great detail due to length, I hope this may at least set out the rough outline of the issues we considered.
The report focuses on three main questions: (a) whether the so-called Transnistrian Moldovan Republic or “TMR” has a right under international law to sovereignty; (b) whether the “privatization” of property by the TMR’s leadership was legally binding on Moldova; and, (c) what role “third-party” States have in the ongoing conflict and, in particular, the international legal implications of Russian economic pressure and military presence in Transnistria. In assessing these issues we looked to diplomatic practice, cases before international courts, treaties, declarations, and other examples of state practice.
Concerning the status of the TMR, we examined cases of successful and failed secessions as well as cases of state dissolution. The attempted secession of the Aaland Islands from Finland in the 1920’s, and that of Biafra from Nigeria in the 1970’s as well as the dissolution of Yugoslavia, and the separation of Cyprus, were among the cases we used as optics into the current situation. The use of historical analogy was helpful because the situation in Transnistria—where the separatists have held on to territory for fifteen years but no other state has recognized them—is somewhat unusual and so a careful reading of history helped us tease out the state practice concerning the underlying law.
We found there has been a consistent view that there is no general right to secession—or “external self-determination”—under international law. Attempted secessions are largely viewed as domestic affairs that need to be resolved by the state itself. As a matter of international law, a successful claim for external self-determination must at least show that: (a) the secessionists are a “people;” (b) the state from which they are attempting to secede seriously violates their human rights; and (c) there are no other effective remedies under either domestic law or international law. As is explained at length in the report, not a single one of these factors are clearly satisfied in the case of Transnistria. We concluded that in light of these rules the TMR had not made a legally sufficient case that it has a right to external self-determination/ secession.
But, if the Transnistrians did not have a legal claim for external self-determination, what are we to make of the TMR and the various contracts and agreements they have signed and the acts they have undertaken? We argued that, although the TMR had actual control of Transnistria, it had not attained juridical or legal control and, as such it is a de facto regime and may be viewed as analogous to an occupying power. The TMR is thus limited as to what it may legally do with the territory it administers.
The law of occupation recognizes that the occupying power may, as a matter of fact, control the economic resources within a territory but, as a matter of law, the rightful owners are the previous owners. The final disposition of the property is not decided by the current effective control by the occupier and as such, the occupier has the legal duty not to destroy the economic value of the property. Any economic activities undertaken jointly between the separatists and another party are at the peril of that party. There is no comfort that such activities will be sanctioned after the final resolution of the separatist conflict and these transactions may, in fact, be “unwound.” Thus, in light of the rules governing de facto regimes and also the law of occupation, the TMR’s privatization program can leave investors with no confidence that these transactions would be enforced if the TMR is reintegrated into Moldova.
Finally, we considered the issue of Russian involvement in the crisis. Interventions by third parties are not favored and are assessed in relation to the norms of non-intervention set out in numerous global and regional treaties and legal documents. Sovereignty requires that a state’s policies concerning affairs within its own territory be respected up to the point that some other core interest of the international system is implicated. Russia’s activities concerning the Transnistrian situation, particularly the intervention of the 14th Army on behalf of the separatists, the ongoing military assistance to the TMR through the presence of Russian troops in Transnistria despite Moldovan objections, the economic support of the TMR with below-market energy prices and technical assistance, and effectively bargaining on behalf of the TMR using energy prices, trade embargoes, and other levers of power against Moldova, leads to credible claims of state responsibility on the part of Russia for the continuing separatist crisis and its proximate results.
Similarly, in light of the experience with Russia, Ukraine’s increased participation in the conflict should also be monitored by the international community.
At the end of the day, though, why are the separatists trying to secede and what is Russia’s stake? My own personal guess is that there is no single reason but a different reasons that motivate different groups. The chief concern of the secessionist leadership, as I mentioned in a previous post, likely stems not from any nascent Transnistrian nationalism but rather from the lucrative smuggling, money-laundering, and “privatization” rackets run by them. As far as they are concerned, the longer they can keep their schemes and ventures away from monitoring the better.
Some Russians may be motivated by an honest desire to support a Russian ethnic population that was once part of the same country as them (the USSR) but now finds itself in a different country (Moldova). The protection of minority rights is of great importance in international law, but the default rule is called “internal self-determination,” that is, the provision of cultural and linguistic rights within an existing sovereign state. While one may want to safeguard the rights of ethnic Russians in Moldova, that does not lead to assisting a secessionist movement.
Others have argued that Russian support may in part be driven by concerns over prestige: Russian leadership does not want to preside over any more of the erstwhile Russian empire tilting towards the West. Gorbachev and Yeltsin saw the end of Russian hegemony over Eastern Europe and then the dissolution of the USSR. Now former members of the Warsaw Pact and of the USSR are members of the EU. There are many Russian legislators—and perhaps even Putin himself—who have decided “enough.” According to commentators who focus on this aspect, Russia will support the ethnic Russian leadership of Transnistria for two reasons: (a) so they are not seen as abandoning a Russian ethnic community (although Transnistria is actually as multi-ethnic as the rest of Moldova); and (b) to keep Moldova entangled in a separatist conflict that will force Moldova to have to deal with Russia first and foremost, as opposed to turning to the EU and the U.S.
The financial or psychological reason or reasons driving this conflict may not be completely clear but the law is: the dismemberment of sovereign states is not something lightly undertaken in international law and the Transnistrians have not met the legal requirements for secession.
Though not mentioned explicitly in your blog post, I think a helpful case for readers on the point on the international law of sovereignty is the Quebec Secession case from the Canadian Supreme Court, available here. The Quebec Secession case gives credence to the test you outlined above.
“The chief concern of the secessionist leadership, as I mentioned in a previous post, likely stems not from any nascent Transnistrian nationalism but rather from the lucrative smuggling, money-laundering, and ‘privatization’ rackets run by them.”
One might have been able to say that about some of the smugglers who led our Revolution here in the U.S., Chris!
Nonliquet:
Thanks for noting the Quebec secession case. As it turns out I used it a great deal (and also the report of the panel of experts that was commissioned to analyze the issue) in the report’s discussion of self-determination. I agree with you: it is very clear and useful.
As for our own founding fathers: well there are bound to be some rascals, I guess, at just about every founding. The question, though, is whether there are any credible for claims secession besides get-rich-quick schemes.
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