Vienna, September 17 – Moscow has a law on the books that would allow it to include South Ossetia in the Russian Federation, but such an action, given the lack of international recognition of South Ossetia, would constitute a unilateral act of annexation, an act of aggression, and a threat to Russia’s interests with its other neighbors and at home.
In an article entitled “A Caucasus Anschluss” that appeared this week on the Fontanka.ru portal, legal affairs analyst Anton Odynets describes both the legal arrangements Vladimir Putin put in place in 2001 for absorbing another country into the Russian Federation and the history of this question since that time (www.fontanka.ru/2008/09/15/075/).
According to the Federal Constitutional Law adopted in 2001, Odynets writes, “the acceptance of a foreign state or part of it as a new subject of the Russian Federation can take place [only] on the basis of a mutual agreement of both countries” and only if the unit that wants to be absorbed makes a specific request.
Once that request is made, the commentator says, there is a specific procedure which must be followed, and “it cannot be called simple.” After “negotiations and consultations,” he adds, “an international treaty must be concluded that defines how the residents will acquire Russian citizenship, legal succession issues, property questions and so on.
Such a treaty “can also establish the transition period in the course of which the new subject should be integrated into the economic, financial, credit and legal system of the Russian Federation and also in the system of the organs of state power.” And the two sides may decide to sign additional “special protocols” as well.
Any treaty that is signed must first be reviewed by Russia’s Constitutional Court and then if the justices find no reason for concluding that it is in violation of the country’s basic law approved by “not less than two-thirds of the total membership of the State Duma and not less than three quarters of the members of the Federation Council.”
Odynets’ recollection of this legislation, of course, was prompted by the declaration, quickly withdrawn, of South Ossetian leader Eduard Kokoity last week that he would like to have his republic become part of the Russian Federation. But the commentator reminds that this is the second time this issue has come up.
In July 2004, Duma deputy Andrey Kokoshin raised the question “about the legal aspects of the inclusion of South Ossetia in the Russian Federation as a new subject” in a query to the Constitutional Court. “According to unofficial information,” Odynets says, the Court replied that this was “possible but only with the agreement of Georgia.”
Then in 2006 Kokoity announced that he was appealing to the Russian court with a request that it agree to include his republic in the Russian Federation not on the basis of the 2001 law but rather on the Kuchuk-Kainardzhi treaty of 1774 between the Russian and Ottoman Empires which called for the “inclusion of ‘a single Ossetia’ in Russia.”
The problem with that appeal, as Odynets points out, is that “contemporary Russia is in no way the legal successor of the [Russian] Empire.” Intriguingly, the legal commentator adds, there is no record in the official data base of the Russian Constitutional Court of either Kokoshin’s query or Kokoity’s appeal.
Now, of course, “the legal situation has changed: the official powers that be of Russia have recognized Abkhazia and South Ossetia as independent states, thus confirming the legitimacy of [their] rulers.” And consequently, the Constitutional Court would have the right to re-examine this issue “from the point of view of Russian legislation.”
If the court does not “veto” such moves, Odynets says, then “the process of integration would not seem to be a legally complicated as for example the unification of Germany or the transfer of Hong Kong [from Great Britain] to China. But that narrowly legal view ignores two things, he points out.
On the one hand, “except for Russia and Nicaragua, the entire world still consider South Ossetia part of the territory of Georgia, and thus its unification to Russia is nothing other than an annexation, a forcible joining by a state of all or part of the territory in a unilateral way.” Under international law, that is “one of the forms of aggression.”
And on the other, “if the Russian authorities now were to agree to recognize the [Russian-Ottoman] treaty of two centuries ago, then it would be completely legal to raise the question about the return to Estonia of Ivangorod, the Pechora region of Pskov oblast and part of the Kingesepp district of Leningrad oblast.”
In addition, Finland should get back part of Karelia, he writes, and Japan “not only the several Kurile islands but also half of Sakhalin.” As a result, “practically all the peaceful borderfs of Russia could be under threat” if Moscow were to make a move to annex South Ossetia anytime soon.
Moreover, although Odynets does not address this problem, such an annexation would likely have an impact on both how the international community would vie Russia and how some of Russia’s non-Russian republics and even more distant predominantly ethnic Russian regions would view Moscow.
All this makes it unlikely that the Russian government would take this step and helps to explain why Odynets used the ideologically loaded word “Anschluss” in his title: a German word that people in Russia and elsewhere will immediately recall was most famously used to describe Hitler’s absorption of Austria into the Third Reich.
But if Moscow is not about to take that step formally, it is working hard to integrate these regions into the Russian economic space and, because it is demanding certain guarantees, is promoting their inclusion in a common legal space as well, something that could constitute annexation in all but name (www.caucasustimes.com/article.asp?id=16663).
Indeed, the only institution in the Russian Federation that has taken a clear stand against such creeping annexation is the Moscow Patriarchate of the Russian Orthodox Church. Its leaders at least so far do not want to absorb the Orthodox congregations there, some of whom have already asked for that, for at least two reasons.
The Moscow church clearly does not want to offend the Georgian Orthodox Church, one of its historically closer allies in the Orthodox world, and even more important, it does not want to appear to a precedent that canonical borders should follow political ones, lest that be used against the Moscow church in Ukraine (www.portal-credo.ru/site/?act=news&id=65353&cf=).