Looking for a Solution Under International Law for the Moldova – Transnistria Conflict

[Todd Carney is a student at Harvard Law School. He holds a Bachelor’s degree in Political Science and Public Communications. He has also worked in digital media in New York City and Washington D.C.]

Though most of the headlines regarding disputed territory in Eastern Europe focus on Crimea and Kosovo, there is another region in Eastern Europe that continues to be in question, Transnistria. This blog has been one of the few outlets to consistently pay attention to the conflict. While the conflict has remained cold for quite some time, there are still uncertainties that could impact Moldova’s chance to join the EU. This piece evaluates whether international law can realistically resolve the dispute between Transnistria and Moldova.

Background on the Conflict

During the 1800s, the Russian empire controlled Moldova. After the Russian Revolution of 1917, Moldova seceded and joined Romania. The USSR refused to recognize Romania’s control of Moldova. In 1924, the USSR took control of land in Moldova’s eastern region and established the “Moldavian Autonomous Soviet Socialist Republic,” which today is Transnistria. During World War II, the USSR took complete control of Moldova.

As Soviet control of Moldova weakened, Moldova held its first free elections in 1990. The Popular Front of Moldova (PFM), an extreme nationalist party, won. The PFM discriminated against the Moldovans who had Russian ethnicity within the region by demoting the status of Russian as a language of Moldova and seeking to force Moldovan-Romanian culture as the only culture to live by. PFM’s policies caused Transnistria to declare its independence from Moldova, but Transnistria still considered itself part of the USSR. The move for independence led to armed conflict as the PFM sent armed militants into Transnistria. Moreover, incidents of Moldovan citizens attacking Transnistrians broke out and the Moldovan government declined to prosecute the attackers. In 1991, Moldova declared itself independent from the USSR, and Transnistria followed suit and declared itself an independent nation with Tiraspol as its capital.

As tensions escalated, Moldova kept sending its military and police into Transnistria to try to take control, but each time Transnistria’s militia pushed back. An armed conflict broke out in March 1992, when a group of Moldovans allegedly murdered a Transnistrian militia leader. In response, Transnistrians held 26 Moldovans hostage. Russia started to aid Transnistrian militias and Russia threatened to invade if Moldova did not stop fighting Transnistrians. Russia’s threat led to a ceasefire in July 1992. Though the international community universally recognizes Transnistria to be part of Moldova, Transnistria effectively operates as an autonomous region.

The ceasefire has been enforced by Russian military forces. There have been continuous talks facilitated by the Organization for Security and Cooperation in Europe (OSCE) since the ceasefire. In the early 2000s, signs of reconciliation appeared, with both sides being open to a plan that would give Transnistria a federal government within Moldova and let Transnistria take a role in establishing a new Moldovan constitution. However, Russia intervened and tried to push the Kozak Plan, which would have made a permanent situation of the status quo, with Transnistria remaining an autonomous state within Moldova. The Kozak Plan would also keep Russian troops in the region. The West balked at the Plan, and much of Moldovan society opposed it as well because of the fear that Russia would have greater powers. As a result, the Moldovan government rejected the plan last minute, which angered Russia.

In 2006, Transnistria held a referendum over whether to merge with Russia. Ninety-two percent of Transnistria’s citizens voted in favor of merger, but Moldova and the rest of the international community rejected the referendum’s legitimacy because Transnistria is not a recognized political entity, which meant it had no right to demand independence. Since then, Russia has kept its troops in Transnistria and has conducted military exercises despite Moldova’s objections. Peace talks have also largely stalled, although there is hope that Moldova’s new government will be able to restart talks.

Is Transnistria a State?

The first international law question regarding this conflict is whether Transnistria is a state. No recognized state has acknowledged Transnistria as such. Only three “states,” all of which are themselves not recognized by the international community – Abkhazia, South Ossetia, and Nagorno-Karabakh – have recognized Transnistria. As a result, it is clear that that Transnistria fails to meet Art. 1(D) of the Montevideo Convention, which requires a state to have the “capacity to enter into relations with the other States.”  Constitutive Theory further makes the case that Transnistria is not a state because it stresses the need for recognition from other states in order to achieve statehood, something that Transnistria has clearly failed at. Though it is important to note that Constitutive Theory is not a commonly accepted position

Transnistria could claim it is a state because it meets several of the criteria for statehood under the Montevideo Convention. Transnistria has a defined territory and a permanent population. However, Transnistria arguably fails to meet the element of having its own government. Though Transnistria technically has a functioning government, there is a real question of whether the Transnistrian government would be considered to be fully independent because it receives all of its support from Russia and is being used as a pawn by Russia against Romania. Transnistria fails the criteria of having the capacity to enter relations with other countries because Transnistrians cannot even do basic tasks such as travel to other countries without a passport from another nation.

Does Transnistria have a right to self-determination?

Regardless of whether Transnistria is its own state, it is clear the long-term goal of Transnistria is to join Russia. The 2006 referendum highlights this notion. Transnistria’s desire to join Russia raises another international law question: namely, whether Transnistria has the right to merge with Russia. Though the International Court of Justice’s Advisory Opinion on Kosovo’s Declaration of Independencedid not provide a clear indication of what international law allows in terms of self-determination, Russia’s occupation of Crimea provides a clear comparison. The international community has widely condemned Russia’s occupation of Crimea as violation of international law because the occupation violates Ukraine’s sovereignty. Like Transnistria, Crimea voted overwhelmingly in a referendum over whether to join Russia. Moreover, Crimea has a significant Russian population, as Transnistria does, but again that does not make Crimea part of Russia. There is no basis under international law for Transnistria to join Russia without Moldova’s permission and Moldova would of course never allow that.

Is Russia violating international law?

Though Russia has served as one of the mediators in the conflict, Russia has continually kept its troops in Transnistria despite Moldova’s demand for Russia to withdraw. The situation is similar to Crimea in that Russia has troops stationed in an area of another country that borders Russia and has a large Russian population. However, this situation differs from the Crimea conflict because in this case Russia was brought in to help bring peace to the region instead of just invading on its own. Nevertheless, despite this excuse, it is clear that Russia is defying international law. The international community has repeatedly condemned Russia’s occupation of the region. Moreover, since Transnistria is considered part of Moldova, Russia’s choice to remain in Moldova to support Transnistria’s independence, even after Moldova has requested that Russia leave, means that Russia is violating Moldova’s territorial integrity because Russia is promoting a border change in another state – exactly what Russia is doing in Ukraine in regards to Crimea.

What solutions are there?

Under international law, Russia technically could face sanctions from the UN Security Council. Article 39 of Chapter VII of the UN Charter permits Security Council sanctions when there is a “threat to the peace, breach of peace, or act of aggression.” Though the conflict has not resulted in violence for some time, Russia’s occupation could still be considered an act of “aggression.” In 1967, the UN passed a non-binding resolution, known as Res. 3314, which stated expanded the definition of aggression to include many uses of armed forces, including “[t]he use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.” Although this resolution was not binding, it still reflected what many states considered to be international law. Regardless, Russia would veto any sanction aimed at itself, so UN Security Council sanctions are not an option.

Alternatively, members of the international community could implement unilateral sanctions. The EU has issued sanctions against Transnistria because Transnistria let Russia ship items through Transnistria to bypass EU sanctions. However, no sanctions have been issued against Russia itself for its involvement in Transnistria. A possible reason for this is that there have already been a myriad of sanctions against Russia for its actions in Crimea, a situation where Russia had no right to be in that region and has been more aggressive, yet the West’s sanctions against Russia in response to the Crimea situation have not put an end to the dispute in Crimea. Sanctions are no more likely to end the Transnistria conflict. Moreover, if sanctions were applied exclusively to Transnistria, it could further isolate the region and antagonize it against the West.

A final and controversial option would be to let Transnistria join Russia. Transnistria clearly wants to be part of Russia. International law would not permit forcing Moldova to give Transnistria to Russia because doing so would be a violation of Moldova’s territorial integrity. However, Moldova could always come to an agreement with Russia and Transnistria. Past talks have focused on having Moldova retain some control over Transnistria and these talks have gone nowhere. If Moldova is willing to give up Transnistria, that could put a swift end to the conflict and allow Moldova to focus on joining the EU. However, giving Russia Transnistria would be considered a reward to Russia for its violations of international law in Transnistria, even as it is committing more flagrant international law violations in Crimea. Giving Russia Transnistria could encourage Russia to further advance into other parts in the region, which would threaten international stability.

With these realities in mind, the best solution might be to maintain the status quo until either Transnistria is willing to accept Moldova’s control or Russia has a government willing to abide by international law. Though this conflict is currently not creating any mass atrocities, the situation impedes Moldova and Transnistria’s ability to continue to develop and prosper. Long-term, there needs to be a solution – whether it comes from the international community or Moldova itself.