Disintegration of the Soviet Union in 1991 sharply changed the political situation in the country and its statehood. The government of the USSR, understanding that an irreversible process had occurred under the influence of centrifugal forces and, aspiring to give it a civilised character, developed the law defining rules for the exit of republics from the structure of the USSR. The Constitution of the USSR provided such rules, but the method of implementing them had not been developed. The legalised method of exit of republics from the structure of the USSR applied to both union and autonomous republics which were a part of such union republics, and was regulated by the Law of the USSR from April 3rd, 1990 “About the order of decision of questions connected with an exit of a union republic from the USSR”.
“Article 3. In a union republic incorporating autonomous republics, autonomous regions and autonomous districts, a referendum is conducted separately for each autonomy. The people of autonomous republics and formations have the right to an independent decision on the question of staying in the USSR or remaining with a union republic leaving the USSR, and also on the question of the legal status of their states.
Article 6.... In a union republic incorporating autonomous republics, autonomous regions, autonomous districts or places of compact residence of national groups mentioned in the second part of article 3 of the present Law, referendum results are considered by the union republic Supreme Soviet together with the Supreme Soviet of the autonomous republic and corresponding Councils of People’s Deputies.
Article 9. Referendum results in a union republic about an exit from the USSR, and also opinions of the governments of union republics, autonomous republics, autonomous regions and districts, are considered by the Congress of People's Deputies of the USSR on presentation from the Supreme Soviet of the USSR, in coordination with the Supreme Soviet of the leaving republic. The Congress of People's Deputies of the USSR establishes a transition period not exceeding five years, during which time questions arising in connection with the exit of a republic from the USSR should be resolved.
Article 20. Upon termination of a transition period or at the prescheduled settlement provided by the present Law, the Supreme Soviet of the USSR convokes the Congress of People's Deputies of the USSR to make the decision confirming the end of the process, with agreement of interests and satisfaction of claims of the leaving republic, and also of the USSR, union republics, autonomous republics, independent formations and the national groups mentioned in the second part of article 3 of the present Law.
From the moment of acceptance of such a decision by the Congress of People's Deputies of the USSR the exit of a union republic from the Union is considered to have taken place, and People's Deputies of the USSR from the leaving republic lose their powers. The Congress of People's Deputies of the USSR makes corresponding alterations to the Constitution of the USSR”.
As follows from this document, all actions necessary for the achievement of sovereignty for each union or autonomous republic of the former USSR were specified. The resolution of the Supreme Soviet of the USSR on April 3rd, 1990 “About putting into action the Law of the USSR “About the order of decision of questions connected with an exit of a union republic from the USSR” was also accepted.
It should be explained that the exit of republics from the structure of the USSR or from union republics (with reference to autonomous republics) was possible before the commissioning of the specified Law, but only if the interests of the parties involved - the USSR and the union or autonomous republics – were not thereby harmed. If infringement of the rights or freedom of one of the interested parties occurred, or if there was an infringement of the required steps to exit from an agreed relationship by one of the subjects of international law, documents on the basis of which illegal actions were made were considered illegitimate and void from the very beginning. Georgian “law creations” concerned such cases.
On the basis of the Law relating to secession from the USSR, autonomous republics, in the case of an exit of the union republic from the structure of the USSR, possessed the right to independently solve the question regarding their remaining in the USSR, and the legal status of their republic. Georgia, having broken the Law of April 3rd, 1990 and having taken a unilateral decision for itself and for autonomous formations within its structure, left the Soviet Union. Leaving the USSR, it illegally included the independent state of Abkhazia in its area of interests, having broken Article 3 of the Law on secession from the USSR and having trampled on the basic norms of international law. At the same time, the government of Georgia denounced all legislative documents accepted since 1921 during the existence of the USSR and RSFSR.
The Abkhazian АSSR, which entered into the structure of the former Georgian SSR in 1931 as an autonomous republic, should have been excluded from this structure, especially as Abkhazia, following Item 3 of the Law on an order of secession from the USSR, made the decision to remain as a part of the Soviet Union. According to Item 2 the decision was taken in favour of the participation of Abkhazia in a referendum on March 17th, 1991 “about the necessity of preservation of the USSR as an updated federation”. In that referendum with 318 thousand people having the right to vote, more than 166 thousand people (52.3 % of the population) took part, and 164,231 people, i.e. 98.6 %, voted for preservation of the USSR. According to Item 24 of the Law of the USSR “About national voting (referendum) in the USSR” the Central Commission of a referendum of the USSR established that in the Republic of Abkhazia the majority of voices of the population had voted for preservation of the USSR, and accordingly for staying within its structure.
Here it is necessary to report that even without the Georgian enclave of Abkhazia, who did not accept participation in the referendum, 51.6 % of all citizens having the right to vote supported Soviet Union preservation.
It is known that before the disintegration of the USSR, Abkhazia put a question about restoration of its status as a union republic, which had been lost due to Stalin’s decision, and stated it was not going to leave the USSR, having voted for Union preservation. The Supreme Soviet of the Abkhazian SSR, realising the incompetence of actions by Georgia, accepted on August 25th, 1990 the Declaration on the state sovereignty of ASSR and the Resolution on legal guarantees of protection of the safety of Abkhazia.
“The declaration on the state sovereignty of the Abkhazian Soviet Socialist Republic is accepted by the tenth session of the Supreme Soviet of the Abkhazian АССР XI convocation on August 25th, 1990
... The Abkhazian Soviet Socialist Republic is a sovereign socialist state created on the basis of realisation by the Abkhazian nation of its inalienable right to self-determination, and leadership of the people in determination of their destiny. The sovereignty of the Abkhazian Soviet Socialist Republic extends across all territory of the Abkhazian SSR.
The Abkhazian Soviet Socialist Republic possesses all completeness of government power on its territory outside of limits of the rights voluntarily transferred by it to the USSR and the Georgian SSR on the basis of treaties concluded with them...”.
In the resolution of the Supreme Soviet of the ASSR “About legal guarantees of protection of the statehood of Abkhazia” from August 25th, 1990 facts confirming the illegitimacy of Georgian claims in relation to the territory and statehood of independent Abkhazia, based on the historical development of mutual relations between these countries, are given:
“1. To recognise that the Democratic Republic of Georgia, having broken the Treaty from June 11th, 1918, and also the Agreement concluded earlier between the Abkhazian National Council and the National Council of Georgia from February 9th, 1918, carried out military intervention in the second half of June 1918 for the purpose of the violent joining of the territory of Abkhazia and liquidation of the independence of the Abkhazian people.
This action, which broke an international legal principle forbidding the joining of other territories by force, was illegal.
2. To recognise as illegal and void the part of the Treaty between Georgia and RSFSR which concerns the territory of Abkhazia, because this treaty was concluded on May 7th, 1920 under conditions of military occupation of independent Abkhazia.
3. According to the Resolutions of the Supreme Soviet of the Georgian Soviet Socialist Republic from November 18th, 1989, March 9th and June 20th, 1990 all state structures, existing and having existed in Georgia since February 1921, are recognised as illegal and void, from which it logically follows that all agreed relations between Georgia and Abkhazia, concluded by former public authorities, are also illegal, and the situation of Abkhazia being within the structure of the Georgian Soviet Socialist Republic is deprived of legal validity. Hence, the lawful form of statehood of Abkhazia is the Soviet Socialist Republic of Abkhazia created by the free will of the people of Abkhazia and proclaimed on March 21st, 1921”.
Relations between Soviet Georgia and Soviet Abkhazia arose in a certain historical situation, and they naturally lost their force at the same time as the disappearance from the historical arena of the Soviet Union.
It is necessary to note one more essential factor defining the adherence of Abkhazia to the USSR – the citizenship of its people. To understand this, it is necessary to look back into history. It is known that Abkhazia, in the form of a district, department, or independent princedom, was a Russian province in Transcaucasia, along with Tiflis, Erivan and other provinces of the Russian Empire. The people of these territories were citizens of Russia and any question about citizenship of other countries or about double citizenship did not apply, and could not apply. However, the ethnic component of the people living there was preserved.
With the wreck of the Russian Empire and the creation of a new statehood i.e. the Russian Republic (which occurred on September 1st, 1917), the Provisional Government, being a legitimate body, introduced the institute of citizenship in the country, covering all territories of the former Russian Empire. This was the largest-ever change in legal regulations concerning citizenship. All former subjects of the Russian state, such as inhabitants of Transcaucasia, including Abkhazia, from this date obtained a new status as citizens of Russia. From this moment the principle of receiving Russian citizenship “by the right of blood” began to operate, i.e. if parents are citizens of Russia, the citizenship of those parents is automatically extended to children born to them.
After the October revolution, the reformed state was identified as the inheritor of both the Russian Empire and the subsequent Russian Republic, and retained the created institute of citizenship. The decree of November 11th, 1917 cancelled the division of inhabitants of Russia into ranks and estates, and the privileges corresponding to these categories were withdrawn. The same term was simultaneously confirmed for all inhabitants of the reformed state i.e. the Russian Federation, which was the name “citizen of RSFSR”. On July 10th, 1918 the Constitution of the RSFSR was accepted, which proclaimed all who earlier had citizenship of the Russian Empire as citizens of the new state. There was an identification of the new state which confirmed its continuity both from Imperial Russia, and from the Provisional Government. On October 25th, the very day after concluding the October Revolution, V.I.Lenin on behalf of Petrograd Temporary Revolutionary Committee appealed “To citizens of Russia”, confirming the continuity of the republican power of the Provisional Government.
Governors of separatist countries, in particular Georgia, which established sovereignty on May 26th, 1918 and created an independent state, refused Russian citizenship. At the same time, an agreement with Georgia which would have provided an option for creation of its own Georgian citizenship upon its secession of the Russian Republic, was not signed by the representatives of Georgia. Suitable treaties were signed only with Lithuania, Latvia and Estonia. They, under the conditions of the Brest-Litovsk treaty, were given independence. In this instance, Georgia broke the norms of international law concerning the method of exit of a country from the structure of another state.
Abkhazia as an independent sovereign state through the institute of citizenship continued to remain as a part of the RSFSR, and its inhabitants possessed only Russian citizenship. This citizenship was retained during the period from 1918 to 1921, during the annexation and occupation of Abkhazia by Georgia, as inhabitants of Abkhazia during this period did not declare a refusal of the citizenship of the RSFSR or take Georgian as its basic citizenship (or double, along with Russian). If such a choice had been made, but had taken place under the conditions of annexation, it would have been legally insignificant.
In Abkhazia, Soviet power was established on March 4th, 1921, and at the same time the independent Soviet Socialist Republic of Abkhazia was proclaimed and formed at the 1st Congress of Councils of peasants’ and workers’ deputies. From the moment of releasing Abkhazia from Georgian occupation, i.e. March 1921, the country made a choice in favour of staying in the structure of the RSFSR as a Union Republic, thus keeping the status of “citizens of Russia” for the population of Abkhazia.
The sovereignty of the Soviet Socialist Republic of Abkhazia, in view of its voluntary joining the Transcaucasian Soviet Federal Socialist Republic (RSFSR) “is limited only by the subjects specified in Constitutions of these Unions”... Firstly, inhabitants of Abkhazia upon joining the RSFSR did not lose their Abkhazian citizenship and did not acquire Georgian, and secondly, voluntary membership on an equal rights basis provided the possibility, in case of need, of an exit of Abkhazia from this association, as defined by the equality of the parties.
The regulation about citizenship of the USSR from 1931 confirmed that each person who was in the territory of the USSR was recognized as a citizen of the USSR if not a subject (citizen) of a foreign state. The same document included the additional point that if a citizen firstly of the USSR was also a citizen of the union republic where he lived, the choice of citizenship of that union republic was a personal prerogative for each citizen of the USSR. The people of Abkhazia mainly made the choice in favour of: a) preservation of their citizenship of the USSR; b) receipt of citizenship of Abkhazia, which they possess hitherto.
The law on citizenship of the USSR from 1978 confirmed an accession to citizenship of the country, meaning Russian citizenship, for those persons who had it at that time, i.e. confirmed the citizenship principle “by the right of blood” and “by the right of birth”. Citizens of Russia by “the birth right” were the persons who were born in the territory of Russia until the moment of signing of the Treaty on the formation of the USSR (till December 30th, 1922), at which signing Soviet Abkhazia, as a sovereign state subject to the law, participated and thus was one of the founders of the USSR even if they have subsequently lost this status. The Law on citizenship from May 23rd, 1990 was also the same. Both of these laws accordingly confirmed the status of Russian citizenship for the people of Abkhazia.
Laws of 1978 and 1991 gave citizens of the USSR the right to reside in any part of it, i.e. in any union republic, whilst remaining a citizen of the USSR, and the right to have in addition an accompanying citizenship. These laws allowed for moving to and resettlement in union or autonomous republics with a special ethnic structure and their own republican citizenship by persons having an ethnic type unusual for these countries. Under these laws, immigrants to Abkhazia from regions of Georgia who had Georgian (additional) citizenship streamed in and created conditions there for the destruction of its ethnos and state structure. However it is necessary to note that legal registration of republican and autonomous citizenship in the country was formally absent, therefore throughout all the period of Soviet power only Russian citizenship existed in Abkhazia.
Citizenship is a legal condition. The uncontrollable change of a demographic situation connected with the settling in a country of persons of other citizenship, as events of the last decade of the 20th century have shown, leads to irreparable consequences, up to a change of the form of statehood, replacement of ethnic structure of the population of the country, genocide, and, most importantly, creation of a fifth column attempting the overthrow of the existing political system, as took place in Abkhazia.
The laws stated above, confirming Russian citizenship for the people of Abkhazia, officially did this by “citizenship acquisition in a procedure for registration”. The people of Abkhazia had the right to Russian citizenship, as did the population of other former republics of the USSR (nowadays the CIS), and were by definition citizens of the Russian Federation as no other option had been chosen in a referendum on March 17th, 1991. For reception of the document confirming Russian citizenship, a simplified procedure was introduced. Registration of this document is undertaken only by law-enforcement bodies.
By 1991 in the territory of the ex-GSSR which also included the Autonomous SSR of Abkhazia, there appeared two states not connected with each other: Georgia, which had declared its independence and secession from the USSR and refused Russian citizenship by this declaration, and Abkhazia, which continued to remain a subject of the USSR and whose citizens had kept Russian citizenship. Hence, the legal state relations between Abkhazia and Georgia, created and regulated by Soviet legislation, ceased also on the basis of Soviet legislation.
It is a fact that from the moment of acceptance by Georgia of “the Decree about Independence” on August 25th, 1990 till the moment of disintegration of the USSR on December 21st, 1991, Abkhazia remained a subject of the USSR, and in this capacity it participated in negotiations during which the question of reforming the USSR was being solved. During this period, the chairman of the Supreme Soviet of Abkhazia was a member of the Federation Council of the USSR (after its abolition - a member of the State Council of the USSR) and a member of the Supreme Soviet of the USSR.
Abkhazia did not accept participation in presidential elections in Georgia and in the work of its authorities, because it could not be a subject of the USSR and at the same time be a part of independent Georgia. Moreover, according to regulations about the exit of republics from the structure of the USSR, the Supreme Soviet of the USSR did not make a decision regarding the allocation of autonomous Abkhazia to the separated Georgia. After the termination of existence of the USSR the Supreme Soviet of Abkhazia on July 23rd, 1992, according to regulations about secession from the USSR, made the decision to cancel the Constitution of 1978 and revert to the Constitution of 1925, according to which Abkhazia was a sovereign state, the subject of international law.
It should be noted that actions of the Abkhazian SSR in this case were defined by the Law of the USSR “About differentiation of powers between the USSR and subjects of the federation” from April 26th, 1990, articles from which granted it the following rights:
“Article 1... Autonomous republics are Soviet socialist states, and are subjects of the federation of the USSR. Autonomous republics and autonomous formations enter into union republics on the basis of free self-determination of their peoples, and possess all completeness of state power in their territories outside of the limits of powers transferred by them to the USSR and union republics.
Relations of autonomous republics and autonomous formations with union republics into the structure of which they are included, are defined by agreements and treaties concluded within the limits of the Constitutions of the USSR, Constitutions of union and autonomous republics, and the present Law.
Article 6. The exclusive management of the Union of Soviet Socialist Republics in the name of its supreme bodies of state power relates to:
Item 2) acceptance into the structure of the USSR of new union republics, and confirmation of any new or amended status of existing autonomous republics, regions or districts;
Item 3) the resolution of disputes between union republics, or between union and autonomous republics or formations, if the question is addressed to bodies of the USSR;
Article 11.... In case of contradiction between the Constitution of a union or autonomous republic and the Constitution of the USSR, the Constitution of the USSR operates. In case of contradiction of laws and other decrees of the supreme bodies of state power of union or autonomous republics with the Constitution of the USSR, the laws of the USSR and other decrees of the supreme bodies of state power of the USSR, the decrees published by corresponding bodies of the USSR operate”.
The position of the Abkhazian side which had supported the creation of the updated Union, did not contradict either with international legal norms, or with the current legislation of the USSR. The Republic of Abkhazia at the moment of formation of the Georgian Democratic Republic (on May 26th, 1918) was a sovereign state. Whereas legal state relations between Abkhazia and Georgia had arisen from the Treaty of June 11th, 1918 and from some later treaties and agreements, Georgia could not unilaterally change the character of mutual relations with Abkhazia, and, especially, considered it as a vassal region dependant upon Georgia. It also contradicted the legislation of the USSR regulating the relations between union and autonomous republics. Thus, actions of the authorities of Georgia led to a rupture in legal state relations between Georgia and Abkhazia. The documents accepted by the Supreme Soviet of Abkhazia show that as a result of earlier decisions accepted by the Supreme body of the Georgian SSR, the entrance of Abkhazia into the structure of Georgia under any conditions lost its legal basis.
As a result of the denouncement by Georgia of all legislative decrees and other legal documents accepted during the period from 1921 to 1991, concerning mutual relations with Abkhazia, and also as a result of the unilateral acceptance of the decision by Georgia about secession from the USSR and creation of an independent state, the treaty about the entrance of Abkhazia into the structure of Georgia automatically lost its validity. It contradicted agreed relations between Abkhazia and Georgia. Occurrence of the Abkhazian SSR in the structure of the GSSR started under the conditions of Georgia entering into the structure of the TSFSR and the USSR. As Abkhazia continued to remain as a part of the Union, it accordingly continued to also remain a sovereign state within its 1918 borders as a part of the USSR, and the subject of international law.
In historical and political literature covering the period of the exit of Georgia from the structure of the USSR, reference is made to documents denouncing legal decrees and mutual relations of the specified states. Originals of these documents are not always accessible, however we will dare to give excerpts from them and to give short comments about their contents.
One of the documents which led to the cancellation of all mutual relations between Georgia and the countries which were in the USSR included the decision of the Extraordinary 13th Session of the Supreme Soviet of the GSSR on March 9th, 1990 “About guarantees of protection of the State sovereignty of Georgia”. On the basis of the resolution of the committee of the Supreme Soviet of the GSSR, a conclusion was reached about infringement of the treaty of May 7th, 1920 by Soviet Russia, which had allowed troops to enter into the territory of Georgia. This troop movement was classified by Georgia thus:
“…from the legal point of view as military intervention and occupation... and from the political point of view as actual annexation. Condemning the occupation and annexation of Georgia by Soviet Russia as an international crime, Georgia aspires to the cancellation of consequences of infringement of the Treaty... and to restoration of the rights of Georgia recognised by Soviet Russia in this Treaty. The Supreme Soviet of the Georgian SSR declares illegal and void the Alliance Workers' and Peasants' Treaty between the GSSR and the RSFSR from May 21st, 1921 and the Alliance Treaty on the formation of the Federal Union of the SSR of Transcaucasia from March 12th, 1922”.
We cannot dispute the actions of the Georgian side, although it is necessary to note that:
a) Russia did not legally recognise the annexation of Georgia, or therefore their denouncement of the specified treaties, which is why the actions of Georgia were unilateral;
b) discussion of any question of the legitimacy of the above treaties is groundless, as they were concluded between Russia and the legitimate Government of Georgia which ruled the country for a long period from 1921 to 1991;
c) the recognition of the legitimacy of those or other treaties in the case of a change of political system of the country is its right. However, this action inevitably involves a chain of political and legal consequences, including mutual relations with neighbouring and other countries. By its actions, Georgia broke the confidential additional item of the Treaty from May 7th, 1920, containing the demand about the right of existence of the Communist Party in Georgia. Furthermore, the previously-mentioned facts about the wrongful inclusion of the territory of the independent sovereign state of Abkhazia into the structure of Georgia allow the right of revision and denouncement of this treaty.
In the amendment to the specified Resolution from March 9th, 1990 the Supreme Soviet of the GSSR decided on June 20th, 1990:
“To add the following paragraph to the Resolution:
... The Supreme Soviet of the GSSR declares illegal and void all the documents abolishing political and other institutes of the democratic Republic of Georgia, and also replaces all political and legal establishments which were supported by an external force”.
This amendment together with the basic document from March 9th, 1990 confirmed (according to the modern Georgian government and parliament) the non-legitimacy of all ruling bodies of Georgia working in its territory from February 1921 to March 9th, 1990, without any exception. It also disavowed all decisions of those "illegal", "illegitimate" authorities in its territory. This means that documents about the conclusion of treaties with Abkhazia are illegal, namely: the Alliance Treaty from December 16th, 1921 about association on an agreed basis of the Soviet Socialist Republic of Abkhazia and The Georgian Republic, and inclusion through it of Abkhazia in the Transcaucasian Federation (ratified by 1st Congress of Councils of Abkhazia on February 17th, 1922); items of the Constitution of Abkhazia from April 1925; Constitutions of Georgia, the Transcaucasian SFSR and the USSR, concerning the inclusion of Abkhazia in these structures on any basis; the decree about transformation of the Abkhazian Soviet Socialist Republic to an autonomous republic in the structure of the GSSR from February 19th, 1931 and all subsequent decrees, resolutions and decisions of state, party and other authorities at all levels.
It is especially necessary to underline the illegality and illegitimacy of all decrees and actions of the government of Georgia regarding the resettlement of the ethnic Georgian population from areas of the administrative territory of Georgia to Abkhazia during this period. This action was no more than a purposeful anti-Abkhazian policy of the GSSR management co-ordinated with the Georgian management in Abkhazia, which led to a change in the demographic situation in Abkhazia, by a replacement and destruction of the Abkhazian ethnos.
The legitimacy of our conclusion is confirmed by the termination on January 2nd, 1992 of the Constitution of Georgia which had legal force during the period from 1921 to 1992, defining the political and statehood status of Georgia as a part of the USSR and Abkhazia as a part of the specified states. This fact is underlined in the Declaration of the Supreme Council of the Republic of Georgia on February 21st, 1992 which put a definitive end to the definition of its mutual relations with Russia and Abkhazia. This declaration underlines that the Republic of Georgia is the legal successor to the only Democratic Republic of Georgia of 1918-1921 under its Constitution of February 21st, 1921.
Having liquidated all legal bases defining its mutual relations with neighbours, the government of Georgia, from the moment of its declaration of independence, confirmed the absence of its legal state relations with Abkhazia, i.e. the absence of legal state continuity. Firstly, in connection with its infringement of conditions of the aforementioned alliance law on the exit of a union republic from the structure of the USSR; secondly, because although in the 1921 Constitution of Georgia Abkhazia also appeared as a subject, this document had been developed and accepted by the Constituent Assembly of Georgia unilaterally without any agreement from the Abkhazian side. It had not been ratified by the Abkhazian parliament, and therefore did not come into force; thirdly, the Alliance Treaty with Abkhazia from December 16th, 1921 lost its legal force by the Georgian denouncement of all legal documents concluded after April 25th, 1921 and with infringement by Georgia of all aspects of the Treaty.
Drafts of the new Constitution were prepared and published in Abkhazia. They were discussed by the public in the mass media. For August 14th, 1992 a Supreme Soviet session was appointed where discussion of these drafts and of a Treaty about mutual relations between the Republic of Abkhazia and Georgia was planned. This Treaty was developed by one of the authors of the present work, and presented as a draft13. These documents might or might not be accepted. But it was the civilised, parliamentary way - not only non-aggressive, but also non-separative. Georgia answered it with an escalation of violence.
An eyewitness of these events describes them so:
“Having answered by aggression and genocide an appeal by the Abkhazian party to solve a problem within the limits of political, parliamentary discussion, Georgia trampled on the main principles of international law. And one can hardly believe that one hundred thousand Abkhazian people were interested in this unequal war, or that violent actions by Georgian invaders from the first minutes of their intrusion into Abkhazia would force everybody to take up arms. Perhaps the people of Abkhazia taking weapons in their hands to protect themselves is called aggressive separatism?” 14.
“The war in Abkhazia began with invasion there by the Georgian army on a day when the parliament of this republic planned to discuss the above-named draft of the federal treaty which would be presented to the Georgian party. Georgia brought down to Abkhazia all the power of its military potential, including fighting aircraft and armoured units. In reply to the standard civilised, parliamentary methods of settlement of mutual relations which were offered by Abkhazia, Georgia applied brute force. For thirteen months the people of Abkhazia were exposed to destruction, monuments of culture were ruined, and all the economic infrastructure of the republic was completely destroyed and plundered. During the occupation of most of Abkhazia, hundreds of thousands of people were compelled to flee the country, including Jews whose evacuation was organised by the government of Israel, and Greeks by the government of Greece. Abkhazia was reduced to a condition when the only possibility of self-preservation was armed resistance to an aggressor”15.
This military intrusion was undertaken to put into practice the proclaimed slogan “Georgia - only for the Georgians” using the force of a weapon, though, as is known, Abkhazia is not Georgia.
Initiated by the government of Georgia, the rigid policy of Russia in relation to Abkhazia was to urge and compel it to reunite with Georgia. However a blockade of Abkhazia by Russia which proceeded for some years did not serve the interests of the Russian or Abkhazian people and did not given the expected results. The people of Abkhazia incurred, in the war imposed upon them, incalculable destructions and were victims subjected from outside to anti-humane deprivations. They did not show the slightest wish to associate with Georgia. At the heart of this modern social and political reality lies the historical experience of relations between Abkhazia and Georgia which in many respects apportion forces and interests in the formed geopolitical triangle.
After the war the parliament of Abkhazia, taking into account the above-stated, accepted the new 1994 Constitution which proclaimed the Republic of Abkhazia to be a sovereign, democratic, legal state, historically affirmed in 1917 by the right of the people to self-determination, and confirmed the present-day sovereignty of the country by putting the new Constitution into action.
With the question of the sovereignty of Abkhazia there was an unsolved problem - namely, its recognition by the world community - which required examination of the legal situation connected with the claim of Abkhazia to its statehood and sovereignty. The necessary documents were sent to the specialised international non-governmental organisation “Commonwealth of lawyers for cooperation in АТR”. This organisation executed an independent expert appraisal and prepared the following document: “The conclusion from a legal estimation of the essence of “Statements about measures towards a political settlement of the Georgian-Abkhazian conflict”. As a result of this analysis of the legal situation in Abkhazia and its mutual relations with the world community, authors of the Statement reached the following conclusions:
“Statements about measures towards a political settlement of the Georgian-Abkhazian conflict” is the international (interstate) treaty.
Both conflicting parties act in it with equal rights as subjects of international law who have not been connected with each other in legal state relations.
In content, the Statement testifies to the intention of the parties to establish relations which are formulated as confederative.
The professor of international law R.A.Tuzmuhamedov”.
13 Shamba T.: The draft of a treaty about mutual relations between the Republic of Abkhazia and the Republic of Georgia. Abkhazia, June 1992, №23.
14 Shamba S.: To a question on the legal, historical and moral substantiation of the right of Abkhazia to independence. International law, 1999, № 4, p.225.
15 Shamba S.: The negotiation process: hopes and disappointments. Abkhazia - Georgia: Obstacles in the way of peace. Sukhum, 2000, pp. 4-12.
The results of the present authors’ consideration of the latest period of existence of Abkhazia are the following:
1) In connection with the apparent disintegration of the USSR, Georgia, declaring independence of the state, left the structure of the Soviet Union, unilaterally having broken off all bilateral, multilateral and international treaties defining its stay in the Union structure.
2) During the period since 1989 Georgia has accepted a number of state documents denouncing all international treaties and agreements with both Russia and Abkhazia which came into force since February 24th, 1921.
3) Georgia, on leaving the structure of the USSR, unilaterally made the illegal decision to include Abkhazia in this action, which was, on the basis of the documents presented above, a sovereign and independent state having the right to an independent decision of the question of staying in the USSR; on the right to be defined as an independent state or to remain as a part of the union republic leaving the USSR. Therefore, contrary to international law, the current legislation of the USSR and the obligations taken up according to the treaties signed by it, Georgia illegally declared Abkhazia to be within the state structure of its own territory.
4) The Supreme Soviet of the ASSR and the Abkhazian government, not concordant with this illegal decision, made a decision to remain as a part of the USSR, as the Constitution of the USSR of 1977 allowed, and the Law of the USSR from April 3rd, 1990 confirmed the right of autonomous republics to independently solve the question about the destiny of the sovereignty of their country.
5) According to the Law of the USSR dated April 3rd, 1990, the Supreme Soviet of Abkhazia defined the statehood of the country - since August 25th, 1990 Abkhazia has been proclaimed as a sovereign state.
6) Abkhazia, being under the jurisdiction of the USSR, held a referendum on March 17th, 1991 according to the legislation, which confirmed that the majority of the population of the country expressed a will to remain as a part of the USSR. Since September 1st, 1917 the Abkhazian people have had Russian citizenship which has never been interrupted. The population of Abkhazia have never refused this citizenship officially, through a referendum or in any other way, and have never accepted citizenship of another country.
7) According to referendum data, being based on the decision of the people about the declaration of Abkhazia as a sovereign state and on the basis of the people of the country belonging to Russia through a citizenship institute, the Supreme Soviet of Abkhazia accepted the decision about cancellation of the 1978 Constitution of Abkhazia and about temporary use of the 1925 Constitution of Abkhazia.
8) During the moment when discussion of the Treaty on the basis of mutual relations between the Republic of Abkhazia and the Republic of Georgia, prepared by one of the authors of this book should have begun, Georgia started a military expansion against Abkhazia, proceeding from August 1992 till September 1993.
9) After the war the Supreme Soviet of the Republic of Abkhazia, according to the will of its people, accepted the Constitution on November 26th, 1994 in which article 1 says: “The Republic of Abkhazia (Apsny) – a sovereign, democratic, legal state which has historically affirmed the right of the people to free self-determination”. Since this moment the people of the country have confirmed their second citizenship - Abkhazian.
The Georgian side has refused to recognise decisions of the government of Abkhazia, directed towards confirmation of its sovereignty belittled because of Georgia, and opposes the existence of the Republic based on the Constitution of 1925 in all possible ways. The question is, why is Georgia permitted to return to its 1921 Constitution proclaiming its sovereignty and independence, but Abkhazia cannot return to its 1925 Constitution? It appears that the reason is that the Constitution of 1925 provides the SSR of Abkhazia with independence and sovereignty, i.e. the usual double standards are being applied.
It is necessary to consider this problem from the point of view of current Georgian legislation in respect of the examination made of it by the Institute of State and Law of the Russian Academy of Sciences. The full text of “An expert judgement about current legal state relations between Georgia and Abkhazia” is given in one of our works16.
Quotations from this document are given below:
“... According to the 1995 Constitution of Georgia, Abkhazia is a territorial unit of Georgia (part 3, article 4) with undefined status, and the status of Abkhazia will be defined after “full restoration of the jurisdiction of Georgia in all territory of the country” (part 3, article 2). At the same time it is necessary to remember that the specified Constitution of Georgia was accepted when Abkhazia already actually was not in the structure of Georgia, and the overwhelming majority of citizens of Abkhazia, either directly or through their representatives, accepted no participation in production or acceptance of the Constitution of Georgia. World history knows separate examples of attempts to decide through a constitution the destiny of a people who were not accepting participation in the process of approval of such a constitution; however, as a rule, similar attempts have ended without results. For example, in the 1958 Constitution of France, the section devoted to the Commonwealth which France hoped to create under its aegis from its former colonies in the process of their receiving independence. But the young independent states were rather cool concerning the given unilateral initiative of France, and statements in the corresponding chapter of the French constitution remained invalid until at last they were cancelled in 1995.
In the same way, the Constitution of Georgia has an item about “jurisdiction restoration in all territory of the country”...
16 Shamba T. : National relations and the state-legal policy of Russia. Мoscow, 1999, p. 121.
Note that at the moment of acceptance of the Decree about the independence of Georgia on May 26th, 1918, Abkhazia was a sovereign state and was not within the structure of Georgia. It was occupied by Georgian troops later, at the end of June 1918. Moreover, in February 1918 an agreement was concluded between the authorities of Georgia, preparing for the declaration of state independence, and the authorities of Abkhazia. In this agreement, the existence of uniform and inseparable Abkhazia, with limits from the river Ingur to the river Mzymta, was admitted.
However, Georgia believes in the infringement of all international rules of law, and that it has the right to accept in relation to Abkhazia unilateral documents dictating the conditions of its existence, as is occurring against the background of the international community and the indifferent attitude of the former Soviet republics. Considering the situation, the authors of “the Expert judgement...” make the conclusion that “from the point of view of the legislation of Georgia which was accepted in 1989-1991 and has received amendments in the latest documents, Abkhazia cannot be considered as a subject defined in legal documents as a part of Georgia, and the legal state relations between Abkhazia and Georgia have stopped”.
In 1995 Georgia accepted a constitution in which the legal registration of the development of its statehood, formed from the Constitution of 1921, set the legalised inclusion of Abkhazia in the structure of Georgia as its purpose. This was despite the existing rule of law that unilateral acceptance by any state of a constitution fixing laws about the occurrence in the structure of the given state of any territory without the approval of the population of this territory, having its own authorities, cannot have any legal consequences. In the same way, conclusions by other states of treaties with a state considering any territory as its own (without the approval of the population of this territory) does not mean that the population of this territory cannot carry out the right to self-determination and separate from the structure of the given state. So, international treaties concluded, for example, with Great Britain or France before the disintegration of their colonial empires did not prevent the creation of new independent states in place of their colonies. International treaties (only if they did not exclusively concern colonies) did not automatically stop their validity after liquidation of British or French colonial domination, though it is obvious that the territory under the control of British and French governments was reduced. These governments cannot have responsibility for the execution of treaties in the territory of former colonies. It is impossible to solve the destiny of the population of any territory without considering the opinion of the population. The will defined by representatives of this population has found expression in the fact that a Russian military contingent with a peace-keeping function is located in Abkhazia, under the tripartite decision of the governments of Russia, Georgia and Abkhazia.
In a legitimate attempt to consider Abkhazia as a part of the territory of the Georgian state, the Georgian side refers to the Russian-Georgian treaty of May 7th, 1920 recognising the border between the RSFSR and Georgia on the river Psou, with inclusion in the structure of Georgia of the Sukhum district. But from an international legal position the fact of its signing was an infringement of the international rules of law, and its content from the legal point of view is insignificant.
Further, in “the Expert judgement...” it is written:
“As Georgia (as can be seen from the legislative acts of 1989-1991 given above) does not simply put into question all the decisions concerning itself during the existence of the USSR, but legislatively disavows them, there appeared a question of the legitimacy of the territory of Georgia under Soviet power, including a question on the legitimacy of the occurrence of Abkhazia in the structure of Georgia. International law recognises the transformation of administrative borders into state borders in the situation of any definitely isolated part of the state existing at some borders, and transformed into a new independent state. However, world history knows a lot of examples when at the transformation of any part of the state into an independent state new borders appeared. For example, Ireland, both before its gain by England and as a part of the British Empire, was understood to be a territory of the whole island. But when Ireland was granted the status of a dominion (officially called The Irish Free State) in 1920-1922, and then at the declaration of the independent Irish Republic in 1937, the northern part of Ireland remained as a part of the United Kingdom of Great Britain and Northern Ireland. At the disintegration of the Austro-Hungarian Empire in 1918-1920 a number of independent states were formed. In particular, Czechoslovakia appeared. Meanwhile Czechia before its occurrence in the structure of the state of the Hapsburgs was an independent state, but as a part of the Empire had certain administrative borders. Slovakia was included administratively into Hungary before the formation of the Austro-Hungarian Empire, and, as a part of that Empire, was also considered as a part of Hungary. At the same time Transylvania, which had traditionally been a part of Hungary, was transferred to Romania under peace treaties. From more recent examples it is possible to mention the Dayton agreements which provided for the creation in the territory of Bosnia and Herzegovina of the Republic of Serbia and the Muslim Croatian Federation. Thus between them appeared practically new borders not existing previously... World history knows the division into independent states of any part of a state which was a uniform administrative and territorial unit. So, India was under the sovereignty of the British Crown from 1877 to 1947, and then at the declaration of its independence three states were formed in its place: Burma, the Indian Union and Pakistan (later, the state of Bangladesh was separated from Pakistan). There is no basis to the belief that international law guarantees the preservation of uniform states formed from ex-union republics after the disintegration of the Soviet Union, contrary to the will of the people living in them. The presence of settled administrative borders of Abkhazia allows the belief that it can form an independent state in these borders. Usually, the right to self-determination of the people in the form of an independent state is easier to realise and quicker to organise if the people, within the limits of the territory which is a part of another state, already having self-government, have formed effectively operating power structures. As already mentioned, independent power structures in Abkhazia began to be formed in December 1917 (let alone during the centuries-old history of Abkhazian statehood), and again after Abkhazia became an autonomous republic as a part of Soviet Georgia within the Soviet Union. In particular, under the Constitutions of the USSR of 1936 and 1977 and under the Constitutions of the Georgian SSR of 1937 and 1978, the Abkhazian ASSR, as well as other autonomous republics, had a variety of attributes of the state: its own Constitution, legislation, state symbols, etc.”.
Today historical justice is restored. The Abkhazian people have a state with strictly outlined territory, the Constitution, a government system and political power, legislation, concrete national interests and priorities in foreign policy. De jure the sovereign Republic of Abkhazia is independent. It asks nothing from anyone and does not restrain anyone's interests. It insists only on recognition by the world community of its de facto natural right to exist and to be included in the system of normal international relations.
It is necessary to consider one more question. After the exit of Georgia from the structure of the USSR and restoration of its own statehood, Georgia has refused Russian citizenship and has restored its own Georgian citizenship. Abkhazia, having found, on the basis of the circumstances given above, its independence, sovereignty and own statehood, has kept Russian citizenship and has introduced the institute of Abkhazian citizenship. Attempts to restore the sovereignty of Abkhazia always caused military aggression from Georgia, and only the victory of Abkhazians in 1993 has radically changed the political situation and ethnic structure in the country. Military actions in a conflict zone compelled a considerable number of Abkhazians, Armenians, and Russians to leave Abkhazia. Considering the question of the population composition in Abkhazia with respect to international law, it is necessary to note that only Abkhazians, Abazinians and other representatives of the indigenous population of countries possessing both Russian and Abkhazian citizenship are citizens of the state by right of birth, plus right of blood, plus right of soil.
However, in the territory of the independent sovereign state of Abkhazia, there appeared persons of Georgian nationality with Georgian citizenship, who refused Russian citizenship and did not wish to receive Abkhazian citizenship. A similar situation took place in practically all states in post-Soviet territory. The problem was solved everywhere thus: persons who do not have the host state’s nationality should define their citizenship themselves, without dependence on their number in the newly-formed sovereign state. This proves to be true in practice in the state of Kazakhstan where representatives of that nation make only 40% of the population. Possible variants are acceptance of citizenship of the country of residence; departure to the country of one’s own citizenship; further residence in the country without its citizenship, like apartheid (with a number of restrictions to one’s rights). It is a problem which Abkhazia should have solved a long time ago, as arrival to the country of persons of other nationality, in particular Georgian, without their acceptance of Abkhazian citizenship, is fraught with new excesses and problems.