In intervening in the conflict in the Georgian region of South Ossetia, Russia has asserted that its actions are justified in part on the legal precedent established by Kosovo's independence. But there is no "Kosovo precedent." Every international situation must be considered individually on the basis of its history and the circumstances of the conflict, and sought-for solutions must best meet the interests of the peoples involved.
Although analogies may be drawn and arguments may be made for the existence of a precedent, they won't resolve the conflict in South Ossetia. In fact, such analogies actually underscore the differences between Kosovo and South Ossetia, rather than build a compelling case for precedent.
The treatment of ethnic Albanians in Kosovo over a 10-year period drew significant international attention to the region. At the hands of the Serbs, Kosovar Albanians were subject to repression that reached the point of ethnic cleansing. These offenses occurred in direct defiance of the UN Security Council.
By contrast, no similar atrocities have occurred in South Ossetia. Major conflict between Georgia and South Ossetia lasted only two years, from 1990-92. No compelling evidence has emerged that the recent actions of the Georgian government to reestablish constitutional order in South Ossetia reached the level of those undertaken by the Serbs in Kosovo. Russia's claims of genocide in South Ossetia appear wholly unfounded.
As a result, Russia's claims of humanitarian intervention in South Ossetia are likely unfounded as well, particularly as intervention has gone far beyond establishing order in the troubled region.
Under the 1974 Yugoslav Constitution, Kosovo was granted the status of an autonomous province with virtually the same rights and responsibilities as the six Yugoslav republics, granting Kosovo an implied right of secession. Kosovo's autonomy included its own identity, territory, international-relations powers, and representation in all organs of the Yugoslav Federation. As a result, Serbian actions to deprive Kosovo of its autonomy, beginning in 1989, were clearly inconsistent with the existing Yugoslav Constitution and law and with accepted international practice.
South Ossetia had no such right under the Soviet Union. According to Article 72 of the 1977 Soviet Constitution only the 15 republics possessed the right to secede from the union. Georgia emerged from the Soviet Union as an internationally recognized, independent state, and South Ossetia was considered part of its territory.
The 1933 Montevideo Convention on the Rights and Duties of States set forth the traditional criteria for international recognition. To receive international recognition, a state must have a permanent population, a defined territory, a government, and the capacity to conduct foreign relations. Kosovo's territory, permanent population, democratically elected government, and diplomatic representation abroad easily fulfilled these requirements.
Although South Ossetia has a defined territory within Georgia, its population has been in considerable flux and, as a result, cannot be considered permanent. South Ossetia's government is essentially a Russian puppet state, calling into question whether the region would support independence in democratic elections. Finally, South Ossetia's government has existed in international isolation and has not engaged with diplomatic relations with other states, except Russia.
The European Community has since elaborated on the standards set forth in the Montevideo Convention through the 1991 Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union. The requirements for state recognition include: respect for the UN Charter, guarantees for the rights of ethnic groups and minorities under the Final Act of Helsinki and the Charter of Paris, acceptance of all relevant commitments with regard to disarmament, nonrecognition for entities created through aggression, respect for the inviolability of frontiers unless changed peacefully and by common agreement, acceptance of commitments for regional stability and security, and a commitment to settle peacefully all questions of state succession. Under UN guidance, Kosovo met these considerations in the course of creating its own provisional institutions of self-government.
South Ossetia, however, has not satisfied the requirements of recognition under the EC's guidelines and has taken actions contrary to their letter and spirit, including forcible acquisition of territory and evident reliance on military, economic, and political support from third parties, namely Russia. In similar situations such as with the Republic of Northern Cyprus, the UN Security Council and the General Assembly have called on member states not to recognize such seceding states.
In Kosovo, the international community was left with no option but to intervene to stop the ethnic cleansing of Kosovar Albanians by the Serbian regime. Kosovo was recognized as an independent state given its status within the Yugoslav Federation and fulfillment of international criteria for recognition. By contrast, Russian involvement in South Ossetia over the course of the last decade, and in particular its intervention during this past week, has resulted in mass ethnic cleansing and a blatant violation of Georgia's territorial integrity.
Paul R. Williams is managing director of the Public International Law & Policy Group in Washington, D.C. Frederick M. Lorenz, Public International Law & Policy Group senior peace fellow and Lauren C. Baillie, senior research associate contributed to this commentary. The views expressed in this commentary are the author's own and do not necessarily reflect those of RFE/RL
For RFE/RL's full coverage of the conflict that began in Georgia's breakway region of South Ossetia, click here