OREANDA-NEWS. May 6, 2008. The Georgian side and some of our other partners claim that the Russian Federation President’s April 16 instructions to the Government regarding protection of the rights and interests of the people of Abkhazia and South Ossetia run counter to the generally recognized principles and norms of international law and aim at “annexing” these regions. In this context we consider it necessary to give the following commentary.

The measures announced by Russia for the protection of the interests of the residents of Abkhazia and South Ossetia are due to the special situation in these regions. It is characterized by the fact that in view of the unsettledness of the armed conflicts Georgia does not fully exercise its jurisdiction on their territories; control is exercised there by the de facto power entities. Furthermore, residents of these areas are essentially deprived of the possibility to realize the most elementary human rights at times. This situation has now been around for many years. Yet life goes on in Abkhazia and South Ossetia: people are born; enter into marriage; study; work; trade and so on. They have basic, fundamental rights without which a normal human life is impossible. In fact, the residents of the unrecognized republics have all these years been hostages to the inter-nationality conflicts, which – let us not forget it – broke out after the Tbilisi authorities abolished the autonomy of Abkhazia and South Ossetia, and Georgian State Council troops marched on Sukhumi.

Today the exercise by the de facto Abkhaz and South Ossetian authorities of control and legal regulation on these territories allows for maintaining elementary order, for combating crime and for transacting commercial and consumer deals. The recognition of certain acts of these authorities does not involve a recognition of their status.

In respect of the concrete presidential instructions we would like to note the following.

1. Recognition of documents issued by the de facto authorities of Abkhazia and South Ossetia.

International law recognizes that the illegality of a specific body of authority does not automatically entail the invalidity of any and all acts of the body. It is held that those of its acts which are an inalienable condition of the exercise of basic human rights are valid. The registration of civil status certificates is a case in point. Their non-recognition would obviously entail highly adverse consequences for the people of the respective territory.

This thesis is supported by the judicial practice of states (including the US, Britain) as well as by that of international judicial bodies, including the United Nations International Court of Justice and the European Court of Human Rights (ECHR).

In this regard, the ECHR adduces some detailed arguments in its 2001 Cyprus v. Turkey decision regarding the acts of the authorities of the unrecognized “Turkish Republic of Northern Cyprus”: “For the Court, life went on in the territory concerned, for its inhabitants, and that life must be made tolerable and be protected by the de facto authorities, including their courts. It [the Court] considered that, in the interests of the inhabitants, the acts of those authorities could not simply be ignored by third states or by international institutions... To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they were discussed in an international context...“.

An English court in its 1978 decision in the Hesperides Hotels Ltd. V. Aegean Turkish Holidays Ltd. stated that the courts were „entitled to look at the state of affairs actually existing in a territory to see what law was in fact effective and enforced in that territory and to give effect to it in its impact on individuals as justice and common sense required“.

We will also mention the 1933 decision of a New York court in Salimoff & Co. v. Standard Oil of N.Y., in the context of the recognition of the legal acts of the USSR, whose government at the moment was not recognized by the United States. The court stated: “The courts may not recognize the Soviet government as the de jure government... They may, however, say that it is a government, maintaining internal peace and order, providing for national defense and the general welfare, carrying on relations with our own government and others. To refuse to recognize that Soviet Russia is a government regulating the internal affairs of the country, is to give to fictions an air of reality which they do not deserve“.

The 1971 Advisory Opinion of the UN International Court of Justice on the “Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276(1970)“ holds that “this invalidity [of the legal acts of South African authorities in Namibia] cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.“ This position of the Court, like many of its other decisions on specific matters, enjoys authority in examining other comparable situations.

It is these legal considerations that lie behind the Russian Federation President’s decisions to recognize certain types of documents issued to natural persons by the de facto Abkhaz and South Ossetian authorities.

2. Contacts with the de facto authorities of Abkhazia and South Ossetia.

The possibility of contacts with the de facto authorities of the unrecognized republics flows from the same norms of international law. In particular, the ICJ Advisory Opinion points out: “The non-recognition … should not result in depriving the people … of any advantages derived from international cooperation.”

Contacts will be directed, first and foremost, at the protection of the rights, freedoms and lawful interests of the Russian citizens in Abkhazia and South Ossetia and will be maintained in the trade-and-economic, social, scientific-technical fields and in the spheres of information, culture and education. This list shows the preeminently humanitarian character of the proposed ties. It generally conforms to the practice of cooperation with unrecognized entities which other states, in particular the US, use. By the way, under Russian legislation international cooperation in these spheres can be maintained at the level of subjects of the Federation as well.

In UN Security Council resolutions on Georgian-Abkhaz settlement, it is stressed that “economic development is urgently required in Abkhazia, Georgia.” We presume that in the conditions of the line which Tbilisi actually, not in words pursues towards Sukhumi, this provision of the resolution can be fulfilled only in direct contacts with the Abkhaz authorities.

It should also be noted that the ability of the Abkhaz authorities to take legally valid decisions is also indirectly recognized in the resolutions of the UN Security Council. They regularly contain some or other appeals to the “Abkhaz side,” whose fulfillment without effecting legal regulation are hardly possible.

3. The recognition of the legal personality of Abkhaz and South Ossetian legal entities.

This decision has been prompted by the same considerations. It is understandable that cooperation in the interests of the people of the unrecognized republics will find its concrete filling in direct dealings between individuals and legal entities. Without recognition of the latter such cooperation is hardly feasible.

4. Legal assistance in civil, family and criminal matters.

Russia and Georgia are parties to the 1993 Convention on Legal Assistance in Civil, Family and Criminal Matters concluded by the CIS member states, as well as to the Council of Europe’s Conventions on Extradition of 1957, on Legal Assistance in Criminal Matters of 1959 and on the Transfer of Sentenced Persons of 1983.

At the same time the Georgian authorities’ inability to fulfill their provisions in respect of Abkhazia and South Ossetia is recognized by Georgia itself. The fact of the formulation by the Georgian side of the respective reservations to some conventions concerning their non-application to the territories of Abkhazia and South Ossetia is a confirmation of this. Such reservations have been made by Georgia to the above European Convention of 1957, as also to the Convention relating to the Status of Refugees, the European Convention on the International Validity of Criminal Judgments, the European Convention on the Suppression of Terrorism and others.

For example, 35 Russian citizens serving imprisonment sentences in Abkhazia expressed a wish to be transferred to Russia to serve the rest of their terms. Taking this into account, the Russian side asked the Georgian side for its consent to the realization of the provisions of the 1983 Convention (in respect of which the Georgian side did not make the above reservation) by way of direct cooperation with the authorities of Abkhazia. It was proposed to inform the competent bodies of Georgia about progress in such cooperation. In response, however, came not merely a refusal, but a selection of incomprehensible charges against Russia. This, however, left unclear just how Georgia perceives its fulfillment of the international obligations under this and other above-mentioned Conventions.

Under these conditions, direct contacts with the de facto authorities remain the only way out by which the observance of the rights and lawful interests of Russian citizens and the inhabitants of Abkhazia and South Ossetia as a whole can be ensured. In the absence of a possibility of rendering international legal assistance substantial detriment may be inflicted upon the rights of these people. By and large Russia’s position on this issue helps to achieve the objectives of the Conventions in question, not destroy the regimes created by them.

5. The performance of consular functions.

What this is about is that the territorial bodies of the Russian Ministry of Foreign Affairs in Krasnodar Territory and in North Ossetia will, if necessary, perform consular functions in the interests of residents of Abkhazia and South Ossetia. We presume that Russia has the right to independently determine the functions of its own bodies of power within its own territory.

Thus, it is abundantly clear that the Russian steps are meant to ensure the fundamental rights of the people of Abkhazia and South Ossetia, not establish any control over the territories of these unrecognized republics.