No precedents in the unique case of Transdniester

As international recognition of Transdniester's independence nears, what implications will this have for international law in general and, more specifically, on other separatist movements in places like South Ossetia, Abkhazia and even Chechnya? If handled properly, the case of Transdniester will not create any precedents. It is a unique case for at least three reasons.

First, there is history ... or rather, lack thereof. Transdniester has never been part of Moldova at any time in history. Moldova, as an independent entity, was only created in 1991. By then, Transdniester had already left: It declared independence in 1990, one year earlier.

The two were together only for a brief period - less than fifty years - inside the Soviet Union, but there was never an independent Moldovan state in the Soviet Union. Whereas Belarus and Ukraine, as Soviet Socialist Republics, held U.N. memberships, the small Moldavian Soviet Socialist Republic had not even the semblance of sovereignty. When it was created, it did not adhere to any historical borders. Rather, Stalin chopped up bits and pieces of neighboring Romania and Ukraine to carve out a wholly artificial entity: Complete with an invented name for a new language, "Moldavian", for which he created a Cyrillic dictionary and a set of history books aimed to distinguish it from Romanian.

Transdniester has no historical ties with Moldova and was never at any time in its history part of an independent Moldovan state. Ever. Going back more than a thousand years, the Dniester river has traditionally formed an international border between the two. A claim by Moldova that would deny the right of Transdniester to independence is, quite simply, not supported by history.

Second, Moldova itself reversed the Molotov-Ribbentrop Pact. This pact, signed by the foreign ministers of Hitler and Stalin, enabled the only connection between Moldova and Transdniester: The forced 1940-annexation of Moldova by the USSR after the outbreak of World War II. In 1990, and then again in 1991, this annexation was declared null and void by Moldova itself. Upon seeking its own independence, Moldova claimed for itself a legal principle which is known in international law as "status quo ante bellum". This reversed the legal effects of the Molotov-Ribbentrop Pact, giving Moldova its freedom but also, automatically, voiding any claim to extra territory obtained as a result of the pact (in this case, Transdniester, which was never part of Moldova).

The territory to the East of the Dniester River - today Transdniester - never belonged either to Romania, nor to its predecessors, such as the Principality of Moldavia. This territory was split off from Ukrainian SSR in a political maneuver of the USSR to become a seed of the Moldavian SSR, in an action which Moldova itself was later to declare null and void from the start (in its own Declaration of Independence, no less).

Transdniester itself seceded from the Moldavian SSR before the dissolution of the Soviet Union. Since Moldova declared independence from the Soviet Union, all political arrangements made within the Soviet Union must be considered void, and - says Tiraspol - it is a bit rich for Moldova to pick and choose from Soviet laws as if it was a 'smorgasboard'. You can't have your cake and eat it too, is the message that Tiraspol sends to Chisinau: Once you leave the Soviet Union, political arrangements which you yourself denounced are no longer valid.

Specifically, legal experts from Tiraspol bring forth the manner in which the Republic of Moldova declared independence, namely by stating that it considers the Molotov-Ribbentrop Pact to be null and void. If this is so, then the Moldovans themselves have implicitly agreed to relinquish Transdniester since this territory never belonged to Moldova, nor to Romania before the signing of the pact.

Third, actual distinctiveness demonstrates that Transdniester has few things in common with Moldova. The majority of Transdniester's population are Slavs who speak Russian, in sharp contrast to Moldova where most of the population are ethnic Moldovans and speak Moldovan. Apart from languages and ethnicity, there are even a difference in the alphabet used. Even the ecomies are not integrated: Moldova represents just 1% of Transdniester's foreign trade.

Transdniester has the right to self-determination, stemming from egregious human rights violations perpetrated against its people by Moldova in a short but very bloody war in 1992. The war, initiated by Moldova against civilians on the other side of the Dniester river, ultimately failed to subjugate the independent-minded people but not before it left over a thousand dead. On June 28-29, 1993, the International Tribunal on the violation of norms of humanitarian law in the military conflict in Transnistria concluded that "Moldova committed serious and outrageous violations of the Geneva Conventions of 1949 relating to the Victims of War and Additional Protocols of 1977", as well as other international legal norms in the following respects: Intentional killing of civilians, including women and children; torture of civilians; raping of women and girls, assault and battery; coercion of civilians to serve in Moldova's military; civilian hostage taking; international killings, torture, and inhumane treatment. In the circumstances of apparent violation of international law by Moldova of a war of aggression against Transdniester and its citizens, international law clearly states that Transdniester has the right to self-determination.

Finally, a strong argument can be made that Transdniester's de facto independence has set a legal precedent which can not be turned back. Now going on 17 years, its government has a monopoly on the exercise of effective authority, known in international law as the principle of effectivités. This principle has been called the crucial element for successful settlement of disputes over acquisition of territorial sovereignty. The Permanent Court of International Justice stated that “the actual continuous and peaceful display of state functions is in case of dispute the sound and natural criterion of territorial sovereignty.” Setting a precedent, this ruling has been echoed in other cases, with judges of the International Court of Justice (ICJ) making "the exercise of jurisdiction and state functions" the determining factor for sovereignty over territory.

Transdniester's ability to successfully defend its borders against attack adds to the evidence. In international law, recognition is generally only given to the government which exercises effective control over a territory. This is directly tied to the effectivités, the “principle of effectiveness” of government. With respect to effective but unrecognized governments in situ, it is not recognition that makes the government a government in the sense of international law but that the government is a government in international law because it is effective, i.e. fulfills the main criterion for governmental status. Therefore, what matters most is not a territorial claim or who draws the maps, but rather the actual situation on the ground - even to the point of normally being the “sole criterion” under international law. All other considerations are either non-existent or of secondary nature. Quoting from its official state policy, Switzerland’s foreign ministry sums up this universal practice as follows: "The formal recognition of a state presupposes that the state in question truly meets the requirements of international law in the matter of statehood. The prevailing doctrine imposes three requirements: a national territory, a citizenry and a state authority, i.e. an internally and externally effective and independent government embodying the sovereignty of the state. The sole criterion for assessing the quality of statehood in this context is the actual situation on the ground ('principle of effectiveness')."

Centuries of international practice, codified in charters like the Montevideo Convention, repeats that principle, listing the applicable criteria for statehood as being: a permanent population; a defined territory; a government; and capacity to enter into relations with other states. Transdniester now meets all of these requirements.

But international law is evolving. Lately, more and more emphasis has been placed on democracy, and on following the will of the people as expressed in a free and fair referendum. A former United States president said that "No people must be forced under a sovereignty under which it does not wish to live." The majority of the countries which are in existence today were founded on the principle of democratic self-determination. To deny this right to the people of Transdniester would be akin to denying the same birthrights that Moldova, the United States, and indeed the majority of the nations in the world today have used when they were created.

Can Transdniester work as an independent entity? It would seem so -- based on a decade and a half of available evidence, it is already working. Transdniester has a stable currency and inflation is under control. Tiraspol privatized major public assets and is emerging as a multi-party democracy with a press which independent observers see as being more free than in Moldova.

Moldova doesn't need Transdniester. The best interests of the international community, including the European Union, at this point lie in providing a quick fix and regional economic vitality. Moldova will be in a much better position to take advantage of the economic opportunities available in Transdniester if the two are separate and able to manage their own development strategies. Only if Transdniester and Moldova are separated politically can they establish a meaningful economic partnership.

Europe has all the room and every reason it needs to be pragmatic on the question of Transdniester. Europe has an interest in ensuring that Transdniester's transition to a free and open democracy takes place, and that the new country becomes integrated as a responsible partner in the international community. A flexible and pragmatic European approach to the issue of Transdniester's final status would enhance peace, stability and development in the region. And due to the uniqueness of the special history of both Moldova and Transdniester, the case would not set precedents which the international community would rather avoid.

Columnist Michael Garner is a regular contributor to The Tiraspol Times & Weekly Review. He recently published "Echoes from Kosovo reach Pridnestrovie, bringing new hope to status talks"