Right to self-determination vs. inviolability of borders

As he stood in the hot sun in Tirana, Albania's capital, the self-styled leader of the free world undid the legacy of his predecessor Harry S. Truman and sixty-two years of world history.

" - At some point of time, sooner rather than later, you got to say: that’s enough – Kosovo is independent,” roared George W. Bush to the cheering Albanians who gave him a hero's welcome that splendid Sunday, on 10 June 2007.

With those words, the 43rd President of the United States of America put the final nail in the coffin of "the old world order" which was put together by Stalin, Truman and Churchill in Yalta in 1945. That year, the Big Three held two conferences – at Yalta (February) and Potsdam (July) – to try to sort out how they would organize the world after the war. The conferences at Yalta and Potsdam were the two most important peace conferences of World War II, setting up a system designed to be stable and to organize Europe around the principle of inviolable borders.

Years of Bush, Clinton, and then a Bush again, have eroded this system: The Yalta-Potsdam agreements, crowned by the 1975 Helsinki accords, have ceased to exist for all practical purposes. Now merely a legal fiction, international law has been taken over by new priorities in which the right to self-determination now matters more than territorial integrity.

After World War II the European status quo was reinforced, being later codified by the documents adopted at the 1975 Helsinki Conference on inviolability of state borders:
"The member states regard as inviolable the borders between themselves as well as the borders of other European states" and they “shall respect territorial integrity of each state.”

But the principle of territorial integrity, which was never solidly enforced to begin with, is now merely a blip in the timespan of world history. It was undermined by the very freedoms and human rights that the Helsinki accords upheld, with the undoing of the Cold War leading to the break-up of the territorial integrity of Yugoslavia, the Soviet Union, and Czechoslovakia ... all of them in Europe and all of them supposedly "protected" for eternity by the paper that the Helsinki Final Act was written on.

Historians have argued that those events were the consequences of the inner contradictory nature of the Yalta-Potsdam system. With Stalin's participation, the re-drawing the Europe's post-war map was carried out against the will of many smaller European nations and state borders were drawn regardless of the will of national communities.

In Helsinki in 1975 these World War II after-effects were supposedly made permanent when post-war borders were proclaimed inviolable. But of even more importance, the 1966 United Nations Covenant on Civil and Political Rights had stated boldly that "all peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development ... In no case may a people be deprived of its own means of subsistence."

This duality made it possible for countries to use “double standards”, treating some political movements as national liberation movements and others are separatists. On the flip side, some states opposed to breaking up were treated as imperialists while others were lauded for their desire to maintain their territorial integrity.

The territorial integrity argument is good ... to a point. It becomes flimsy when used to justify the supposed "integrity" of states which didn't even exist at the time at the 1975 Helsinki Final Act, or of states which itself broke the provisions of the act in order to come into being.
And the same argument becomes wholly indefensible when both of these conditions apply, as in the case of Moldova: A state which did not exist as a sovereign country at the time of Yalta, Potsdam or Helsinki – and which itself violated the territorial integrity of a Helsinki signatory in order to unilaterally declare its independence from the center.

In the process of the break-up of the Soviet Union, the Transdniester Republic refused to become part of the newly minted state of Moldova. From the point of view of international law, in defense of the territorial integrity principle, this could justifiably be interpreted as a legally valid act aimed at safeguarding the territorial integrity the USSR as a signatory to the 1975 Helsinki Final Act and a country which, at the time, existed both de jure and de facto. Put this way, who violated the principle of territorial integrity? And who defended the border inviolability principle?

On 3 April 1990, the USSR Supreme Soviet adopted a law according to which, in the event of the refusal of part of the territory seceding from the USSR to separate, such territory would remain part of the Union with the seceding territory losing it.

Moldova's leadership refused to ask for the will of the population: No referendum or democratic vote ever took place prior to declaring independence. Moldova did not allow the 17 March 1991 all-Union referendum to be held, in defiance of the legal government of the country at the time. The referendum, which could only go forward only Transdniester - by then already outside of the control of Moldova's authorities - asked voters whether the Soviet Union should be retained or dissolved.

Today, Natalia Narochnitskaya, a member of the International Affairs Committee of Russia's State Duma - its lower house - says that it is necessary “to review the inconsistency, on one hand, between the actual dismembering of the USSR and, on the other hand, the legal framework set out in the law on secession from the USSR.” She points out “the initially unlawful character of institutionalization of a number of former republics of the USSR into independent states” and as a consequence “incompletion of the current territorial status of Georgia and Moldova.”

Moscow has a legitimate interest in the process of settlement of Moldova's territorial claim. Out of geography alone, Russia is the closest and most centrally involved participant in developments on the post-Soviet space. Russia has an obligation to safeguard the large number of ethnic Russians, many of them Russian citizens, who were born in Transdniester and still live there with their families today. There is no shame in asking Moscow to take the initiative in proposing new ways for defusing the tense standoff in the current "frozen conflict." It is only right and logical that Moscow, not Washington, takes the lead in coming up with new initiatives and convene regional conferences with the participation of the neighboring countries.

In international law, there is an acknowledged right of secession of an individual territory from a state in the event of unlawful inclusion of such a territory into this state.

As Natalia Narochnitskaya points out, it is far from clear that Moldova had a lawful basis for forcing - against their will - the population of Transdniester into the composition of the self-proclaimed Republic of Moldova on 27 August 1991, the date when it unilaterally declared itself to be a country.

At no time, before or since, did Moldova ever hold a referendum to ask the people of Transdniestria if they wished to become a part of this new country. When it was clear what the answer was (a resounding "no, thanks") Moldova instead sent tanks and airborne troops to quell the "separatists" in Transdniester: For the most part, these humble people were just civilians who simply had no desire to live in a new state which, historically and ethnically, they had no logical ties to from the past.

" - A nation has no right to say to a province: You belong to me, I want to take you. A province consists of its inhabitants. If anybody has a right to be heard in this case it is these inhabitants," wrote the economist Ludwig von Mises in Omnipotent Government (p.90).

Ever since before it was founded, the alleged territorial integrity of the Republic of Moldova has existed exclusively on paper. It has never existed in the real world.

A 1992 war, initiated by Moldova to impose its uninvited rule on Transdniester, failed to change this. Will a new war in 2008 be able to change this?
And who, if anyone, desires such a war?

Columnist Michael Garner is a regular contributor to The Tiraspol Times & Weekly Review. Some of his writings published here include "Echoes from Kosovo reach Pridnestrovie, bringing new hope to status talks", "Rethinking America's Transdniester policy" and "No precedents in the unique case of Transdniester".