3.4. Statehood and the sovereignty of Abkhazia.

Statehood is a special feature by which historical development of a country is noted, with a people who were able to create their own state or to restore­ a state lost owing to various reasons. It not only the property of a society and an indicator of its development. It is an ideology, and the public, political ­ and cultural orientation directing the people towards development of the state, its protection, etc. As V.V. Ilyin notes in “Political science”, the basic ­ symbolic signs of statehood are the use ­ of an official state language, state emblems (the arms, a hymn, a flag) and ­ specific forms of the state (political) organisation of a society: forms of government, a political system, political relations, power structures etc. The problem of development of statehood is always acute, especially in transition periods of formation of  states that were connected with the disintegration ­ of empires and state unions. Abkhazia has already passed this way.

World experience in building states has revealed a number of the major factors in their legitimate formation and existence. These are: presence of a direct connection of the people with territory of residence,­  i.e. the right of the people to the given territory; aspiration of the people to ­ political self-determination, i.e. to the formation of public authorities; ability of the people to provide the functioning of the state. All these factors are present regarding the Abkhazian state. As S.Shamba states in his work “To a question on a legal, historical and moral substantiation of the right ­ of Abkhazia to independence”, the Abkhazian state – which existed for­ twelve centuries, and was recreated in the 1990s - is formed by the Abkhazian people on their native land, and it independently and successfully functioned under  various historical conditions. During its development the Abkhazian ­ statehood changed its form and content, at times ­ weakening to the lowest level and even being interrupted, but never disappearing ­ from the consciousness of the people.

The political desire of the Abkhazian people to maintain sovereignty, ­expressed in numerous actions throughout the centuries, always was and still­ remains the pledge of existence of their state. Acceptance by Georgia of decisions ­ which disavowed earlier operating official state ­documents has essentially facilitated work on demonstratively revealing   ­the presence of the necessary conditions confirming ­the statehood and sovereignty of Abkhazia. As was earlier noted, the documents accepted by Georgia during the period from May 26th, 1918 to the termination of the Georgian­ occupation in 1921, and also during the following years, were insignificant from the very beginning, invalid, and had no   legal power. They should be disavowed by the government of the Republic of Abkhazia, which would lead to the­ restoration of the initial status of the country (restitutio in integrum).

Abkhazia not only struggled for preservation of the USSR, and for its integrity, but wished to remain within it. This relationship was maintained up to the end, even when the Soviet Union was threatened with the danger of disintegration. But ­the centrifugal force of reorganisation and perestroika grew, and Abkhazia was the last to depart from the USSR. The forces which really united these countries were their proximity, both overland and by sea, the close unity of their Slavic horde and the Caucasian people, the historical association of their separate groups, their mutual gravitation to each other, and their interlacings of spiritual and economic interests. Too many vital threads, material and spiritual, were stretched between them.

The thesis about “the right of the people to self-determination” is constantly forgotten by ­ politicians and government officials. This firstly concerns the United Nations, the OSCE and so on, which define the development of interstate relations. Irrespective of any decisions made by different governments or international organisations, Abkhazia has every basis and right to insist on the restoration and recognition of its full ­ independence.

In fundamental research into the circumstances leading to loss of sovereignty, such as occupation and annexation of the state, V.Chernichenko shows that such characteristics as personality, the legal validity of the state, and sovereignty are closely connected with each other. Thus “the personality of the state” is understood as the role played by  government personnel in the country and their position in defining state policy i.e. the personality of the state is defined through the realisation of a vector of the wills ­ of separate representatives of the state and of social groups.

In a period of full occupation of the country, even if the state perishes, losing its personality, it keeps its legality, as the territory of the country and its population remain as subjects of international law, even after loss of statehood. If the people, being a source of the state sovereignty, remain, ­ it is considered that the state sovereignty, as well as its legality de jure also remain. In this case the state de facto loses only its capability to function, because  the society which generated this state remains, and upon the­ approach of favorable conditions the roots of the state will produce new shoots. It is easy to destroy state structures by occupation, more difficult to destroy economic ­ interrelations, and  impossible to destroy the spiritual aspect of a society and its culture. This thesis is confirmed in practice by the evolution of the Abkhazian state, which was subjected to  military, economic and other expansion by ­ Georgia during the period from 1918 to 1993. It testifies that even the long period of loss of the personality of the state and its international legal validity (as well as its “revival”) depends on both objective and subjective factors.

At the same time the fact of occupation does not mean, in the opinion of V.Chernichenko, any transfer of sovereignty to the occupying party. Moreover, the state whose territory is occupied is formally considered as keeping  its sovereignty de jure, as well as its international legality. This is the conventional position ­ of international law, i.e. the imperative norm. Loss of legality, according to classical international law, can take place only ­ after a formal acceptance of annexation. If a national liberation ­ struggle by the use of political means proceeds,­ the national resistance force and allies of the annexed country do not recognise ­ annexation, and continue the struggle for its liberation. The question can ­ remain in a condition of legal uncertainty for many years, as has taken place in the case of Abkhazia. As annexation is defined in current international law as an illegal action, any document supporting it, from the point of view of the international community, has no validity and does not lead to loss of the sovereignty of the state or to loss of its legality.

In our work we have shown that all activity of the Georgian government regarding mutual relations with Abkhazia has always been directed towards the destruction of the stability and integrity of that state. These ­ actions concern: military expansion of Georgia into Abkhazia, occupation of the country, the attempt at annexation proceeding throughout more than 70 years, illegal ­ resettlement of the Georgian population from the mother country into Abkhazia, and genocide ­ in relation to Abkhazians. The purpose of these actions has been to create a superiority in strength of the Georgian enclave by changing the demographic situation in Abkhazia, having carried out the conversion of the indigenous population of Abkhazians into a small nationality, with appropriation of their territory and ­ its inclusion within the structure of Georgia.

The retrospective recognition of the annexation of Abkhazia as void and wrongful means that although it was not earlier considered illegal, it is now recognized as legally nonexistent, and so are its legal consequences, so its actual   consequences should be removed. But for many countries, subject to annexations, the full and real implementation of this postulate is impossible. As for Abkhazia, its life, development and the evolution of history promoted its exit from the condition of annexation. The reason for this was first of all the disintegration of the Soviet Union, and then the legal actions of the country’s  leaders to create an independent state – ­ the Republic of Abkhazia.

The essential basis for recognition that the annexation of Abkhazia by Georgia was illegal is that, as shown in our work, the annexation of the country occurred after legal confirmation of the fact of formation ­ of the Abkhazian nation, people and national state, which had already been recognised by the Russian empire in 1810, and this fact is confirmed by the corresponding international agreement.

We believe, that the listed facts, supported by legal documents (facta concludentia), are enough to draw a legal ­ conclusion.

Attempts to solve the problem of restoration of the sovereignty of Abkhazia began at once after the termination of the occupation of Abkhazia by Georgia in 1921­. A partial success was achieved. Abkhazia was an independent republic until 1922, and then again started to lose its sovereignty. Work on the restoration of its sovereignty was especially intensive upon termination of the Georgian-Abkhazian war of 1992-1993, followed by termination of the Georgian annexation. Though Abkhazia established its own Constitution declaring its sovereignty, the international ­ community and neighbours in the CIS did not support such a decision and did not recognise ­ it. The General Assembly of the United Nations accepted on November 17th, 1989 the resolution 44/23 about the declaration of the 1990s as “Decade of international law”, but during all this time it could not or did not want ­ to solve the question of the sovereignty of Abkhazia, or to punish Georgia for continuous actions of military extremism and aggression in relation to Abkhazia.

The reason for that is the superficial approach to the problem of mutual relations between Abkhazia and Georgia. The history of Abkhazia, as well as of other countries ­ which were or are in a similar situation, confirms that ­ the decision of the problem rests with the granting of sovereignty to countries dependent on other states. As for Abkhazia, as shown ­ in our work it has historically remained an independent state throughout two ­ millenia, possessing   all the necessary features and attributes of sovereignty ­ recognised today by the world community. It demands only one thing, that the international community should confirm and legitimise this sovereignty in the same way as it has done for other states in a similar situation. It is also necessary to remember that Russia, leaving the structure of the USSR having accepted its debts and obligations, has left alone all ­ states within the administrative structure of the USSR, having given them the opportunity to develop and build their countries in their own way, and thus having confirmed that the territory of the USSR is not the territory of Russia. Also, the independent Georgian ­ state became the successor to the Georgian Soviet Socialist Republic, having forgotten that its assignment extends only to territory which is actually Georgia. Abkhazia,­ which entered the Soviet state under special conditions as a part of the Georgian SSR, is not a part of Georgia, either in an ethnic, territorial, or administrative capacity. The territory ­ of the Georgian Soviet Socialist Republic and the territory of Georgia are different concepts. International law in this situation has a firm position - nemo ex suo delicto meliorem suam conditionem fasere potest - nobody can improve their position by breaking laws.

Hence, the sovereignty of Abkhazia was defined and confirmed as a result of the disintegration of the USSR and its reallocation, together with further steps towards finding independence, including the self-determination of the country on the basis of a referendum. Due to the form of recognition, Abkhazia de facto and de jure ­ is the subject of international law, and we hope that time will put everything in its right place.

Being the subject of international law, Abkhazia has restored its sovereignty ­ as a state formed as a result of the division of the Soviet Union,­  leaving it with its indigenous population of Abkhazians living in the territory historically belonging to them. Thus all ­ states of the world have been notified of the assignment of the government and the people of Abkhazia ­ to the state and the territory.