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NYC Bar Report Details International Law
Violations |
The New York City Bar Association’s Committee on European Affairs has
issued a report that says that
 Russia’s support of the separatist regime
in Moldova’s breakaway region of Transnistria leads to a serious claim
that Russia is violating international law, and illegally interfering in
the internal affairs of Moldova. The committee’s conclusion is one of
the results of a year-long study that included sending a mission to the
area and meeting with the leadership of both the Republic of Moldova and
the so-called Transnistrian Moldovan Republic (“TMR”), as well as
representatives of Russia, Ukraine, Romania and the U.S. State
Department.
The Association’s Delegation to Moldova was led by our colleague,
Mark A. Meyer, who is Chair of the Association’s Committee on
European Affairs. The other members of the delegation were: Robert
Abrams, former Attorney General of the State of New York; Barrington D.
Parker, Jr., a U.S. Circuit Court Judge in the Second Circuit; Elizabeth
F. Defeis, Professor of Law and former Dean of Seton Hall University Law
School; and Christopher J. Borgen, Assistant Professor of Law at St.
John's University School of Law. Professor Borgen was the primary author
of the report.
In preparation of the Report, the Mission met with many people
including, in Moldova, President Vladimir Voronin, Prime Minister Vasile
Tarlev, Foreign Minister Andrei Stratan, Minister of Reintegration
Vasilii Sova, Chairperson of the Supreme Court Valeria Sterbert,
Chairperson of the Constitutional Court Victor Puscas, Justice Minister
Victoria Iftodi, General Ion Ursu, Chief of the Information and Security
Services, leaders of all of the Parliamentary factions, US Ambassador
Heather Hodges, Russian Ambassador Nicolay Ryabov, Ukrainian Ambassador
Petro Cealyi, Romanian Ambassador Filip Teodorescu, OSCE Ambassador
William Hill, and farmers and local municipal and county leaders from
the Dubasari area; and in Transnistria, with President Igor Nikolaevich
Smirnov, Chairman of the Supreme Soviet Grigoriy Stepanovich Marakutsa,
Foreign Minister Valeriy Anatolevich Litskai, Minister of Justice Viktor
Balala, and Chairperson of the Constitutional Court Vladimir Grigoriev.
The new study concludes that Russia’s activities in Transnistria –
including the intervention of its 14th Army on behalf of the
separatists, the ongoing military assistance to the TMR, the economic
support of the TMR, and effectively bargaining on behalf of the TMR
using energy and other levers of power against Moldova – lead to
credible claims of state responsibility on the part of Russia for the
continuing separatist crisis and its proximate results, and violates
fundamental principles of international law. The New York City Bar
report also maintains that the TMR’s claims for sovereignty are without
merit under international law, and its sales of Moldovan state assets to
mostly Russian businessmen constitute a conversion of property that is
exceedingly difficult to justify under international law and in which
purchasers consequently act at their own risk.
The New York City Bar report concludes that Russia has illegally propped
up the viability of the TMR and made reintegration virtually impossible.
The report determined that the Russians also provide materiel,
expertise, and other support to the TMR on an ongoing basis. Similarly,
the Soviet-era arms stockpile under control of the 14th Army has been
used to support the TMR, both directly and as a source of revenue,
through joint Russian-TMR sales of army materiel on the world market.
Moldova wants the immediate removal of the weapons stockpiles. Russia
has so far refused to remove the stockpiles (or the troops).
Besides the use of the army to either hamper the Moldovans or assist the
TMR, the City Bar found that Russia has also used economic pressure and
economic assistance as a carrot and stick. Economic pressure is
generally not barred by international law. However, such pressure on a
state, or assistance to separatists, may make the third-party state
liable under the law of state responsibility if its pressure would
either frustrate the pressured state’s (in this case Moldova) sovereign
privileges or would breach one of the third-party’s pre-existing
commitments to the state being coerced.
In considering the present situation, the report found that there are
four areas of particular concern: (a) the use of energy prices as a
carrot or a stick; (b) the increased use of tariff barriers against
Moldovan goods; (c) economic assistance to the TMR; and (d) the shared
economic interests of Russian and Transnistrian elites. Taken as a
whole, the City Bar concludes that there is a significant intervention
on behalf of the TMR by Russia.
The report concludes that the various activities described above – the
economic pressure, the military assistance to the TMR, and the energy
politics – need to be understood in light of the constant Russian
rhetoric in favor of the TMR and critical of Moldova. No single activity
described would likely lead to state responsibility (although the troop
situation may rise to that level). The report states that these acts
seen as a whole, combined with constant Russian statements supporting
the TMR and criticizing Moldovan efforts at reintegration, form a
compelling picture of inappropriate intervention by Russia into the
domestic affairs of Moldova. Copies of the full report are also
available at the New York City Bar Web site,
http://www.nycbar.org/pdf/report/NYCity BarTransnistriaReport.pdf. |
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Brief History of Situation |
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Moldova has been entangled in a seemingly intractable separatist
conflict involving ethnic tensions, Russian troops, Soviet-era arms
stockpiles, smuggling, money-laundering, and corruption. Bordering
Romania and Ukraine, with a majority of ethnic Romanians, it is a
country that has been largely overlooked by the West. At issue is who
should control a strip of land nestled between the Dniestr River and the
border of Ukraine. Transnistria is less than 30 kilometers wide, with
4,118 square kilometers in total area, making it roughly the size of
Rhode Island. It has a population of approximately 580,000, while the
rest of Moldova has 3.36 million inhabitants. Nonetheless, Transnistria
contains Moldova’s key industrial infrastructure, power plants, and,
importantly, a significant stockpile of Soviet-era arms. Since 1994, it
has been under the effective control of a separatist regime that calls
itself the Transnistrian Moldovan Republic and occupied by Russian
troops. |
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The Status of the TMR under International
Law |
A central question concerns the status of the TMR
under international law and, in particular, the evaluation of claims by
Transnistrian leaders that the TMR has a legal right either to autonomy within
Moldova or to secede. The New York City Bar found neither claim persuasive and
concluded that the TMR is best characterized as a “de facto regime.”
No Right to Autonomy.
Under international law there is no “right” to
fiscal or governmental autonomy within a state. While the TMR leadership may
make political arguments that one may or may not find persuasive, the report did
not find a legal basis for a claim of autonomy. The two strongest quasi-legal
arguments in favor of autonomy are: (a) that due to the denunciation by
the USSR of the Molotov-Ribbentrop Pact, which had established the modern
boundaries of Moldova, Transnistria should revert to an autonomous state; and,
(b) self-determination as a basis for autonomy. The denunciation
argument is a chimera. Simply denouncing a treaty does not revert the political
system to the status quo ante; it merely means that the treaty will not
be in force going forward. This is especially true in treaties that include
boundary delimitation provisions. The second argument made by the Transnistrians,
linking autonomy with the right of self-determination, opens up numerous complex
issues in public international law. One thing is clear: rather than a right to
autonomy—or even a specific set of characteristics that define this
term—international law in the last century has focused on the elucidation of the
norm of self-determination. Self-determination, and its relation to autonomy
and secession, is discussed at greater length below. In sum, the report finds
that international law has little to say as to any supposed “right” to autonomy,
and that grants of “autonomy” are largely issues of domestic law. In the
Transnistrian case, the Government of Moldova has proposed various plans that
are effectively grants of varying levels of policymaking and regulatory
autonomy; all have been rejected by the TMR. The report concludes that, based
on their words and deeds, the TMR’s leaders seem less interested in autonomy
than in full sovereignty.
Self-Determination, Sovereignty, and
Secession.
The norm of self-determination is not a general
right of secession. It is the right of a people to decide on their culture,
language, and government. It has evolved into the concepts of “internal
self-determination,” the protection of minority rights within a state, and
“external self-determination,” secession from a state.
While self-determination is an internationally recognized principle, secession
is considered a domestic issue that each state must assess itself. Influential
decisions and reports concerning self-determination, such as the report
concerning the status of the Aaland Islands in 1921 and the Badinter Commission
opinions concerning the former Yugoslavia in the 1990’s, and other examples of
state practice have been consistent in the view that a successful claim for
self-determination must at least show that: (a) the secessionists
are a “people;” (b) the state from which they are seceding seriously
violates their human rights; and (c) there are no other effective
remedies under either domestic law or international law. None of these prongs
are satisfied in the case of Transnistria, with the possible exception of (a).
The term “people” has been generally used in recent state practice to refer to
an ethnic group, or a “nation” in the classic, ethnographic, sense of the word.
However there are some, such as the TMR’s leadership, who suggest the term
should mean something else, perhaps a group with common goals and norms. While
the norm of self-determination may evolve such that a people may be more readily
identified as merely a like-minded group, we do not find that current state
practice supports such a proposition. Regardless, deciding on a single
definition of the term “people” is not dispositive in this case, as none of the
other requirements for external self-determination are met. Concerning the
second prong, the existence of serious violations of human rights, the argument
of the Transnistrians can be organized into three main groupings: (a)
violations of linguistic, cultural, and political rights; (b) the
brutality of the 1992 War; and (c) the denial of economic rights. Taking
into account the significant changes in Moldova since 1992, none of these claims
is convincing today.
 The actual history of Moldova since the end of the
1992 War shows that the country has improved its respect of minority rights. In
contrast, the TMR has had a poor human rights record including a lack of due
process, persecution of religious minorities, and retaliation against political
dissenters. The 1992 War itself caused 1,000 deaths, but we found that. in light
of state practice, the events of the 1992 War in and of themselves do not make a
persuasive claim of secession as a legal right. If they did, the world would be
rife with secessionist conflicts. Similarly, the economic rights claim, which is
essentially about allocation of tax revenues, does not lead to a legal right to
dismember a state. This argument is really about policy, not the form of a
polity. Finally, the report noted that there is a general sense among
commentators, opinions, and decisions, that the human rights violations that are
cited in support of a claim of secession must be ongoing violations. Although
Moldova still has many possible pitfalls on its road to becoming a fully modern
democratic state, it is clear that it is nonetheless traveling the road in the
right direction, albeit with some fits and starts. Thus, the second
prong—ongoing serious violations of human rights—is not met. The third prong
asks whether there are any other options available besides secession. This
conflict has been frozen not so much because there are no other options under
domestic and international law besides secession, but because the separatists
have chosen to make the conflict seem intractable by repeatedly refusing
any options short of effective sovereignty for the TMR. For example, while
Moldova has sought to decrease ethnic tensions, the TMR has attempted to
exacerbate them and subsequently claim that separation is necessary in order to
avoid ethnic conflict and possibly genocide. Such “gaming the system” is
not persuasive. The report thus concludes that there is no solid basis for a
claim of secession under external self-determination. The most basic
requirements for a legal claim are not met.
The TMR as a De Facto Regime.
If Transnistria is not a state, then what is it? We considered two issues: (a)
the role of recognition in the process of state formation; and (b)
whether the TMR is a de facto regime. There is no obligation to recognize
the TMR, even if it does have effective control of territory. Rather, it is
likely that the forcible acquisition of territory, the ongoing objections by the
pre-existing state, Moldova, and the evident reliance of the TMR on military,
economic, and political support from Russia for its survival argue against
recognition and for nonrecognition in this case. In similar cases
the Security Council and/or the General Assembly call on UN member states not to
recognize such seceding entities. Inasmuch as the TMR has effective control
over Transnistria but is not recognized, the TMR can best be understood by using
the doctrine of de facto regimes. Such de facto regimes are
treated as partial subjects of international law. Their unique status does give
rise to certain rights and responsibilities, primarily related to acts required
for the support and well-being of the population. It may conclude agreements
that are held at a status below treaties. Besides the right to act in order to
support its population, a de facto regime may also be held responsible
for breaches of international law. While the de facto regime thus has
certain rights and responsibilities, the acts of de facto regimes have
uncertain legal effect. Acts of such a regime may become invalid with the
disappearance of the regime, for instance, if the territory is reabsorbed into
the parent state. However, the reintegrated state after a failed de facto
regime may be held liable for the acts of the de facto regime that were
part of the normal administration of the territory based on the assumption that
such acts were neutral and that the state would probably have undertaken similar
such acts. If, on the other hand, the de facto regime becomes a state,
then its acts will be binding on the new state. |
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The TMR and the Conversion of Property in
Transnistria |
At the heart of the dispute between the Government of Moldova and
the TMR’s leadership is the issue of the control of the economic assets of
Transnistria. Does the TMR have the right to convert the property in its area
of effective control? If the two parts of Moldova are reintegrated, must these
decisions of the TMR be respected? The report used two theoretical frameworks to
answer these questions. The first, the concept of de facto regime, was
discussed above. The second is an analogy to the international law of the administration of
occupied territories, the most complete statement of which is found in the
 Fourth Geneva Convention. The report used these rules only by analogy as one
might argue that the TMR actually is not bound by the Fourth Geneva Convention.
Nonetheless, the New York City Bar found the rules concerning the administration
of occupied territories and those concerning de facto regimes to be
useful, especially as they are also remarkably consistent as they both draw from
the same root concepts of property rights that tap all the way down to the Roman
law of usufruct, use of property by one who does not own that asset.
Applying the international law of de facto
regimes, the TMR does not have the right to sell-off Moldovan state assets or
any private property. Any such sales face possible challenge and repudiation
should Transnistria become reintegrated into Moldova. By not
only applying the conception of the TMR as
a de facto regime, but also by analogizing to the international law of
the administration of occupied territories, the City Bar found that an occupying
power or its analog: (a) may confiscate state property, other than real
property, if it is usable for military purposes or in the administration of the
territory; (b) may only administer non-military state real property
without destroying or otherwise converting the economic value of the property;
and (c) may not confiscate private property unless it is war materiel.
Based on the foregoing, the TMR’s privatization program is thus exceedingly
difficult to justify. Any private party taking part in this program as a
purchaser consequently does so at its own risk. |
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Third-Party States and Secessionist
Movements |
The third and final main legal issue the New York
City Bar considered was the role of “third-party” states. States have a basic
duty not to intervene or otherwise interfere with the resolution of an internal
conflict within another state. Under circumstances where self-determination or,
more clearly, external self-determination is implicated, or where the Security
Council finds that a conflict has become a threat to international peace, then
third-party states may have more freedom of action concerning the conflict. This
fundamental norm of non-intervention is linked with concepts of sovereignty,
self-determination, and peaceful coexistence. The role of third-party states is
especially important in this case as Russia and Ukraine have taken on the role
of “guarantor” states, states that have a special interest in ensuring an end to
the conflict and formally commit to devoting resources to conflict resolution.
Being a guarantor puts a state into a position in which it becomes involved in
an ongoing crisis in another country, but that state must nonetheless respect
international law in its actions. The report considered the actions of Russia
and Ukraine in light of these rules of conduct.
Russia
Russia, not least because it maintains troops in
Transnistria, is not only a guarantor, but a key player in the conflict. The
City Bar considered four main issues: (a) the activities of the Russian
Army and other organs of the Russian Federation in Transnistria; (b)
economic pressure by the Russian Federation on Moldova; (c) ties between
the TMR leadership and Russian leadership; and (d) the general diplomatic
stance of the Russian Federation. The role of the Russian Army can be split into
two phases: assistance during the 1992 War and ongoing activities, including
maintenance of arms stockpiles in Transnistria. The Russian 14th Army
played a decisive role in the 1992 War by intervening in the fighting on behalf
of the separatists. Despite treaty promises to demobilize and repeated Moldovan
requests that Russia remove its troops from Transnistria, the troops remain.
Consequently, they prop up the viability of the TMR and make reintegration more
difficult. They also provide materiel, expertise, and other support to the TMR
on an ongoing basis. Similarly, the Soviet-era arms stockpile under control of
the 14th Army has been used to support the TMR both directly and as a
source of revenue through joint Russian-TMR sales of army materiel on the world
market. Moldova thus wants the immediate removal of the weapons stockpiles.
Russia has so far refused to remove the stockpiles (or the troops) until there
is a comprehensive political settlement and has also argued that the
Transnistrians will not let them remove the arms.
Besides the use of the army to either hamper the
Moldovans or assist the TMR, the second main issue is that Russia has also used
economic pressure and economic assistance as a carrot and stick. Economic
pressure is generally not barred by international law. However, such pressure on
a state or assistance to separatists may make the third-party state liable under
the law of state responsibility if its pressure would either frustrate Moldova’s
sovereign privileges or would breach one of the third-party state’s pre-existing
commitments to Moldova. In considering the present situation, there are four
areas of particular interest: (a) the use of energy prices as a carrot or
a stick; (b) the increased use of tariff barriers against Moldovan goods;
(c) economic assistance to the TMR; and (d) the shared economic
interests of Russian and Transnistrian elites. Taken as a whole, there is a
significant intervention on behalf of the TMR. On the third issue, the ties
between TMR and Russian leadership, there is ample circumstantial evidence.
Smirnov, Minister of Justice Balala, and Chief of Internal Security Vladimir
Antufeyev all arrived in Moldova at the start or since the start of the
separatist crisis. The TMR’s ruling elite is largely Russian and, to a lesser
extent, Ukrainian, and have Russian citizenship. They have been granted Russian
nationality. Certain members came to the TMR from senior positions in the
Russian government, particularly the Russian parliament (the “Duma”) and the
Russian Army. Finally, the various activities described above—the economic
pressure, the military assistance to the TMR, the energy politics—need to be
understood in light of the constant Russian rhetoric in favor of the TMR and
critical of Moldova. While the report does not contend that any single activity
described could lead to state responsibility (although the troop situation may
rise to that level) the New York City Bar believes that these acts seen as a
whole, combined with constant Russian statements supporting the TMR and
criticizing Moldovan efforts at reintegration, form a compelling picture of
inappropriate intervention by Russia into the domestic affairs of Moldova.
 Ukraine
Due
to its common border with Moldova—and particularly with Transnistria—as well as
the significant ethnic Ukrainian population in Transnistria and throughout
Moldova, Ukraine is a key stakeholder in the Transnistrian conflict. Ukraine has
been critical of Transnistrian separatism and has advocated the complete
withdrawal of Russian troops, but has also been perceived (rightly or wrongly)
as allowing smuggling through its territory and possibly being open to relations
with the TMR. Although Ukraine
has acted in many ways as a counterbalance to Russian influence in Transnistria,
its attentions have often been viewed by the Moldovans with a mixture of hope
and suspicion. Ukraine has made what may be a good faith effort at plotting a
path towards a solution of the crisis; however an actual final plan needs to be
seen before its legal implications can be assessed. The stricter border controls
that are currently being implemented are a necessary, though not conclusive,
step in resolving the Transnistrian crisis. Now that Ukraine has become a more
active participant in the Transnistrian crisis, its actions will need to be
monitored, as have those of Russia and Moldova, by the various stakeholders. |
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Conclusion: Will the Fund get off the
Ground? |
Concerning the Status of the TMR.
Attempted secessions are largely viewed as domestic affairs that need to be
resolved by the state itself. There is no right to secede as a general matter.
At most, secessions may be accepted in cases where a people have been oppressed
and there is no other option for the protection of their human rights. In light
of these rules, the TMR has not made a legally sufficient case that it has a
right to external self-determination or secession. Consequently, the effective
control of the TMR of the Transnistrian part of Moldova is that of a de facto
regime and may be viewed as analogous to control by an occupying power. The TMR
is thus limited as to what it may legally do with the territory it administers.
Concerning the Conversion
of Property by the TMR. 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 with the separatists or insurgents by
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 they may, in fact, be “unwound.” 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.
 Concerning the Responsibilities of Third-Party
States. 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
wishes concerning affairs within its own territory be respected up to the point
that some other core interest of the international system is implicated. Thus,
for example, the garrisoning of troops on foreign soil is not allowed if the
host state requests that the troops leave. 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,
the economic support of the TMR, and effectively bargaining on behalf of the TMR
using energy process 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 be monitored. |
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