December 31, 2002

State-Legal Relations Between Abkhazia and Georgia

The Abkhaz, like many other numerically small peoples, have over the course of their history had to struggle for survival among their more numerous neighbours, and for the preservation of their national identity, culture, language, and statehood. The Abkhaz have consistently been the object of imperial ambitions due to their location between Europe and Asia at the crossroads of strategic and trade routes, and due to the favourable climactic and natural environment of Abkhazia. In the VIII century, the Abkhaz established one of the most influential states of the time - the Abkhaz Kingdom. In the XI century as a result of dynastic marriages, this state was transformed into the Georgian Kingdom, which lasted until the XIII century. From this time until the XIX century, Abkhaz and Georgians lived in two separate and independent state units. In 1810 Abkhazia, irrespective of Georgian feudal units, voluntarily became a protectorate of the Russian Empire. Until 1864 it preserved its statehood and system of self-governance in the form of a sovereign principality. In the nineteenth century, no longer threatened with invasion by Iran and the Ottoman Empire, Georgia turned to the relatively peaceful outlying districts of the Russian Empire, which provided favourable conditions for cultural progress and the development of socio-political ideas, and which allowed for a Georgian national intelligentsia to emerge. Georgian intellectuals began developing a new national idea based on the notion of reviving the state founded by David the Builder and Queen Tamara. Abkhazia was included within this somewhat mythologised notion of an "historical home". Hence some representatives of the Georgian intellectual elite considered Kartvelians to be the natural heirs of territory which the Abkhaz were forced to leave over the course of the Caucasian War.

Leading public and political figures in Georgia began a campaign to encourage mass migration to Abkhazia. Numerous publications argued the rights of Georgians to settle Abkhazia. This campaign lead to a firm conviction among all levels of Georgian society that any attempts by the Abkhaz to claim this land as their own should be quashed. It was no coincidence that soon after the disintegration of the Russian Empire in May 1918 the new Georgian Democratic Republic occupied and annexed Abkhazia. It is important to note that prior to this occupation an Abkhaz National Council had been formed which was active in the development of regional state institutions in the North Caucasus and Southern Russia. As a result of these processes, Abkhazia joined the Union of Mountain Peoples of the North Caucasus, and then the Mountain Republic and the south-eastern Union of Cossack Forces, Caucasian Mountain Peoples and Free Peoples of the Steppe. Hence, following the annexation of Abkhazia by Georgia, the leadership of the Mountain Republic issued a formal protest to the authorities of the Georgian Republic and Germany, whose troops had participated in the operation. During the period of Georgian Menshevik rule in Abkhazia what was in effect a military dictatorship was established. The bodies of the representative authorities were dissolved. Numerous instances of atrocities towards the civilian population of Abkhazia during this period under the command of General Mazniev (appointed Governor General of Abkhazia) have been recorded. On 4 March 1921 the authorities of the Georgian democratic republic in Abkhazia were overthrown by the "Kiaraz" detachment of Abkhaz rebels, with the support of Red Army troops of the Russian Soviet Federal Socialist Republic. An independent Soviet Socialist Republic of Abkhazia was proclaimed on 31 March 1921. On 21 May 1921, the Revolutionary Committee of the Georgian Soviet Socialist Republic recognised the independence of the Abkhaz SSR. In December 1921 the Abkhaz SSR, under pressure from Stalin who was developing nationalities policy in the RSFSR at the time, was forced into a Union Treaty with the Georgian SSR, which created the basis for state-legal relations between Abkhazia and Georgia. According to this treaty, the SSR of Georgia and the SSR of Abkhazia entered into a military, political and economic alliance. In order to achieve these aims, several areas of state activity were announced as common, and were conducted jointly. Thus state-legal relations between Georgia and Abkhazia were based on the treaty, and at the time of signing it the two states possessed equal rights. Following this the Abkhaz SSR took part in the establishment of the USSR and in December 1922 its representatives signed the USSR Treaty. In 1931 the Abkhaz SSR was forced to become an Autonomous Soviet Socialist Republic within the Georgian SSR. This violation of the sovereign rights of Abkhazia had grave consequences for the Abkhaz national consciousness. The reduction of its status to that of an autonomous republic resulted in a gathering of people from throughout Abkhazia over several days (18-26 February 1931), who expressed their distrust toward the government and Soviet authorities. This was the first such mass protest in defence of Abkhaz statehood and rights during the Soviet period. Subsequent Georgian policy was focused on creating a mono-national state. Meskhetian Turks, Greeks, Kurds, Khemshins, Laz and others were deported from Georgia. In Abkhazia a policy of altering the demographic balance was pursued, partly by means of forcible assimilation and partly by means of the mass settlement of Georgian nationals in Abkhazia. At the root of this policy were works by Georgian scholars maintaining that there was no Abkhaz nation as such, and that the Abkhaz were one of the Kartvelian tribes. In 1937-1953 in order to assimilate the Abkhaz, the Georgian government took measures which can only be considered criminal. The Abkhaz were deprived of the right to teach their children in their native language. All Abkhaz schools were closed, as were institutions preparing teachers of the Abkhaz language. In addition, Russian language schools were closed in all the villages of Abkhazia; contrary to the wishes of students and their parents, Abkhazian children were allowed to study only in Georgian schools. In spite of the fact that Armenians constituted a considerable proportion of the population, Armenian schools were also closed in Sukhum and other towns. Russian departments were closed in the Sukhum Teacher Training Institute, and also in the industrial and agricultural technical schools. The Russian section was also closed in the Sukhum State Drama Theatre. The Abkhaz script (originally based on the Cyrillic and then the Latin script) was altered, against the will of the Abkhaz people, to one based on Georgian characters. As a result, after 1938 the Abkhaz were deprived of the right to read newspapers, journals, and other literature in their native language. In the Abkhaz capital Sukhum, and in district centres Gudauta and Ochamchyra broadcasting in Abkhaz was abolished. Signboards and posters in the Abkhaz language were taken down. The toponymy of Abkhazia came under Georgian influence. In spite of the fact that more than 65% of the population did not understand Georgian, record-keeping was carried out in Georgian in almost all the regions and in Sukhum. The Abkhaz were not trusted and were persecuted, their rights infringed. Abkhazians were forced to alter their surnames into Georgian ones, and in the Gal district Abkhazians were given new passports in which their nationality was indicated as Georgian. From 1949 to 1953 Russians and Armenians could not find work or register in Sukhum. Many people were forced to leave Abkhazia due to their nationality. Over 1500 Armenian families left because living conditions became intolerable. In 1949 Greeks were deported from Abkhazia, and migrants from Georgia occupied the houses they had left. Large numbers of Georgian nationals moved to Abkhazia. In 1939 a migration department was established within the Council of People"s Commissars, together with a special office "Abkhazpereselenstroi". The activity of these structures became the primary indicator of the work of the bodies of state power. Thus Gosplan (State Planning Committee of the USSR) reported to the government that on the initiative of the beloved son of the Georgian nation, Comrade Beria, thousands of peasant households migrated to Abkhazia from Georgian districts lacking in arable land. As a result of the above, the demographic situation was artificially altered. Even in 1897 after mass migration to Turkey and other countries of the Middle and Near East the Abkhaz numbered 55.3%, whereas by the end of the 1990s they numbered only 17% (in other words they were a minority in their own country). Over this period, the Abkhaz population had increased by 1.5, while the Georgian population had increased ten-fold. According to international law, genocide constitutes the destruction of language, religion, culture, and the artificial alteration of the demographic balance. This was the policy of the Georgian authorities and Georgian nationals working in the Abkhaz leadership. After Stalin"s death this policy continued, though with some alteration. Under these conditions, Abkhaz statehood was reduced to a formality. According to the 1997 Constitution of the USSR, the autonomous republics were states with their own constitutions and supreme organs of government, legislative, executive and judicial. In it important to note that according to the Constitution of the USSR the autonomous republics had sole sovereignty over their territories. Moreover, according to the USSR Constitution, the autonomous republics participated in discussing and settling matters within the competencies of the USSR through the supreme organs of government, which means that they were units of the USSR. It should be noted that in the USSR law of 26 April 1990 "On the Differentiation of Power between the USSR and Units of the Federation" it is stated that "the autonomous republics - the Soviet socialist states which are units of the federation - of the USSR". Thus, in spite of the fact that Abkhazia was an autonomous republic within the Georgian SSR, they were both units of the USSR and thus the relationship between them was one between two states. During the last years of the USSR, the Georgian authorities began a process aimed at leading to their exit from the Union. This process was accompanied by nationalist propaganda. Leaders of the national movements in Georgia appealed to the public to abolish the autonomous statehood of Abkhazia. This lead to anxiety not only among the Abkhaz, but also among other non-Georgian people. Between 1989 and 1991 the Supreme Soviet of Georgia made a number of unilateral decisions according to which the organs of state power in the Georgian SSR and therefore state-legal acts adopted by them were proclaimed illegitimate and illegal. In turn, the Supreme Soviet of the Abkhaz ASSR adopted on 25 August 1990 its "Declaration on the state sovereignty of Abkhazia and resolution on legal guarantees for the protection of Abkhaz statehood". In this last document in particular it is established that as a result of decisions taken by the Supreme Soviet of the GSSR, the inclusion of Abkhazia within Georgia had no legal basis. In view of the fact that state-legal relations between Abkhazia and Georgia were established according to a treaty agreement, Georgia could not unilaterally alter the nature of its relationship with Abkhazia. In addition, altering the relationship was in contradiction of USSR legislation regulating the relationship between Union and autonomous republics. Thus the activities of the Georgian authorities led to the breaking-off of state-legal relations between Georgia and Abkhazia. When Zviad Gamsakhurdia came to power towards the end of 1990 the Supreme Soviet declared a transitional period with the aim of eventually restoring Georgian independence. Then on 28 February 1991, a referendum on the question of restoring Georgian independence according to the Act of Independence of 26 May 1918 was announced. This referendum was essentially posing the question of secession from the USSR. In accordance with the USSR law of 3 April 1990 "On the issue of Union Republic secession from the USSR", a law which was adopted when Georgia was still part of the USSR, autonomous republics had the right to consider independently whether to remain within the USSR in the case of their Union Republic seceding. Accordingly, Abkhazia took part in the referendum of 17 March 1991 in which the majority of the population voted for the preservation of the USSR. The Central Commission of the USSR Referendum officially confirmed the results of the referendum in the Abkhaz ASSR. Georgia, having declared its intention to build an independent state, did not participate in the referendum. On 31 March 1991 a referendum on the restoration of Georgian independence was held on the territory of Georgia, in which Abkhazia did not participate. On 9 April 1991, in accordance with the outcome of this referendum, The Georgian Supreme Soviet adopted an act on the restoration of Georgian independence, which Georgia saw as the successor of the Georgian Democratic Republic of 1918-1921. From this moment, the GSSR ceased to exist de-jure. As a result, there were two unconnected states existing on the territory of the former GSSR - Georgia, which had declared its independence and exit from the USSR - and Abkhazia, which remained a subject of the USSR. Consequently, the state-legal relations between Abkhazia and Georgia, which were created and regulated by Soviet legislation, were also brought to an end. Abkhazia continued to be a subject of the USSR until its collapse on 21 December 1991, and in this capacity participated in the negotiations on reforming the Soviet Union. The Chair of the Abkhaz Supreme Soviet remained a member of the Soviet Federation of the USSR and a member of the Presidium of the Supreme Soviet of the USSR until its collapse. At the same time, Abkhazia did not take part in the presidential elections in Georgia, or in the activity of its official structures. It was obvious that Abkhazia could not be both a subject of the USSR and of an independent Georgia. Its follows that prior to its admission to the UN, Georgia had had no relationship with Abkhazia, and hence that the recognition on 21 December 1991 by the UN of Georgia"s territorial integrity within the borders of the former GSSR had no legal basis. On the eve of Georgia"s admission into the UN the Chair of the Supreme Soviet of the Abkhaz ASSR, Vladislav Ardzinba, informed the Secretary General of the UN in a letter that there were no state-legal relationships between Abkhazia and Georgia, and that therefore the admission of Georgia into the UN was not legal. In February 1992, following the collapse of the USSR, the Provisional Military Council of Georgia which had seized power in a coup d"etat took a decision concerning the adoption of the constitution of the Georgian Democratic Republic of 1921, in which relations with Abkhazia were not defined. At the same time, the Georgian authorities declared that pending the elaboration of a new model, relations with Abkhazia would for the time being be based on previous principles. However, at the time this decision was taken there existed no state-legal relations between Abkhazia and Georgia, and thus the resolution was not applicable to Abkhazia. Taking into consideration the political situation at the time, Abkhazia, in an effort to avoid military confrontation, offered to restore state-legal relations with Georgia on new equal grounds. On 23 July 1992, the Supreme Soviet of Abkhazia decided to abolish the 1978 Constitution and adopt instead the 1925 Constitution, according to which (in article II) Abkhazia was a sovereign state and subject of international law. At the same time, the Parliament of Abkhazia addressed the Georgian leadership with a proposal to begin negotiations on the establishment of equal relations within the framework of a federative treaty. However, the Georgian authorities opted to use force rather than political dialogue with Abkhazia, and armed aggression began on 14 August 1992. Having made this decision, the Georgian leadership set out to destroy Abkhaz statehood and suppress the aspiration of the Abkhaz people toward self-determination. G. Karkarashvili, Army Commander of the State Council of Georgia, said openly on 24 August 1992 that "I assure Mr. Ardzinba"s supporters in particular, and warn them, that from today the Georgian side will be prohibited from taking Prisoners of War ? and those armed men who confront our governmental troops will be directly affected by the order not to take prisoners. If negotiations prove to be unsuccessful, I can assure these separatists that if out of the sum total of Georgians 100,000 perish then all 97,000 of you who support Ardzinba will perish?" There was no doubt as to the goals of the occupying forces after such statements. In order to achieve its aims, the Georgian leadership was ready to wipe out the entire Abkhaz people. Could this have been the opinion of Karkarashvili alone? No - immediately following this statement Shevardnadze, the head of Georgia, appointed Karkarashvili "knight of the Georgian people". The activities of the Georgian troops showed this to be far from an empty declaration. To date the Procurator General"s Office of the Republic of Abkhazia has more than five thousand volumes of criminal cases which bear witness to the fact that during the war in 1992-3 the Georgian leadership was engaged in a policy of genocide against the Abkhaz people. Some of this evidence was published in a report by the Procurator General of the Republic of Abkhazia: "Preliminary materials in the investigation of cases of mass murder, genocide and other grave crimes carried out by the Georgian authorities and its armed formations during the period of occupation of Abkhazia in 1992-1993". After the cessation of armed conflict, Georgia and Abkhazia entered into negotiations facilitated by the UN and Russian Federation and with the participation of the OSCE. One of the key issues for negotiation was that of future relations between Georgia and Abkhazia. On 4 April 1994 a "Declaration on measures for a political settlement of the Georgian-Abkhaz conflict" was signed which noted the absence of state-legal relations between Abkhazia and Georgia. A similar assessment is made of the above-mentioned declaration in the Report of the Secretary General of the UN on 3 May 1994 (S/1994/529) and in "Proposals relating to political and legal elements of the comprehensive settlement of the Georgian-Abkhaz conflict" (Annex II of the report of 3 May 1994). These state that "Abkhazia will be a subject with sovereign rights within the framework of a union state, which will be established by negotiation following the settlement of contentious issues. The name of the union state will be determined by the sides during the course of further negotiations. The parties will recognise the territorial integrity of the state created within the boundaries of the former Georgian Soviet Socialist Republic as of 21 December 1991". Thus the UN proposed that Abkhazia and Georgia create a new union state and then agree on its name. Moreover, on the initiative of the Abkhaz leadership, the international non-governmental organisation "Commonwealth of Lawyers for Asian-Pacific Co-operation" conducted an independent evaluation of the Declaration of 4 April. In its "Findings of the evaluation on the "Declaration on measures for a political settlement of the Georgian-Abkhaz conflict" it is noted that the declaration establishes the absence of state-legal relations between the parties. It is also stated that "as is evident from the text of the declaration, the parties have reached an agreement on joint activity in the spheres of foreign policy, border and customs services, energy, transport, communications, ecology, and human rights. These spheres of activity are the preserve of a sovereign state. Accordingly, the parties recognised that both had such rights." It is worth noting that not only the Georgian side but also the UN, R ussia and the OSCE, all signatories of the declaration of 4 April, recognised that Abkhazia possessed the competencies characteristic to a sovereign state. The expert evaluation thus concluded that the declaration of 4 April was an international (interstate) agreement. Dr. B Drissen, a specialist in international law from Brussels, came to the same conclusion. In his "legal evaluation of the validity and interpretation of the agreement signed in 1994" he writes that the declaration of 4 April is an international legal treaty signed by two states.

For three years following the signing of the 4 April declaration, the parties negotiated the question of restoring state-legal relations. In June 1997 a draft "Protocol on the Georgian-Abkhaz settlement" was prepared, in accordance with which two equal parties would create a single state based on equal foundations. However, the Georgian side declined from signing this document. This can be explained by the fact that the Georgian position has the support of the UN, OSCE and other parties involved in the settlement of the conflict, who consistently seek to predetermine Abkhaz status as an autonomy within the state of Georgia. At present, on the initiative of the UN, representatives of the group of friends of the Secretary General are working on the document "The basic principles for the distribution of competencies between Tbilisi and Sukhumi" which proposes the inclusion of Abkhazia within Georgia with autonomous rights. This approach is in violation of the principles for settlement set out in the declaration of 4 April. In arguing their position, UN representatives state that the 4 April declaration talks of a temporary breakdown in state-legal relations between Abkhazia and Georgia which came about as a result of the war. Yet war leads to a factual breakdown in relations, not a legal one. State-legal relations are regulated by corresponding legislation which, as shown above, was unilaterally abolished by the leadership of Georgia prior to the outbreak of the Georgian-Abkhaz war. And it is this circumstance which is recorded in the declaration of 4 April.

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