The success of the Helsinki process in the 1970s was possible due to a willingness to accept the territorial status quo in Europe. By contrast, the end of the Cold War and the dissolution of the Soviet Union has led to the creation of a territorial reality characterized by new states with uncertain security status, separatist armed conflicts and ethnic strifes.
Territorial disputes in Eastern Europe and the South Caucasus have poisoned relations between states and devastated the lives of people for already a generation. They have hampered the implementation of international agreements on arms control and confidence- and security-building measures (CSBMs) in areas under the control of de facto regimes. At the same time, disagreements over the status of these regimes have obstructed the development of pan-European arms control mechanisms, particularly the Conventional Armed Forces in Europe (CFE) Treaty and the Adapted CFE Treaty.
In these contested areas status-neutral confidence-building and arms control measures can play an important role as a tool for both conflict prevention and conflict resolution. There is no question that status-neutral arms control is difficult. Arms control agreements are usually concluded by governments that represent internationally recognized states. Yet many international lawyers take the position that joint activities and even treaties with de facto regimes are possible, if there is the political will to do so. Historical examples are the 1963 travel permit agreement between the two German States and the 1963 Limited Test Ban Treaty, but also the names and the functioning of a number of United Nations and OSCE field operations, including their respective missions in Kosovo, or the Geneva International Discussions that bring together participants from Tbilisi, Tskhinvali, Sokhumi, Moscow and Washington.
An almost forgotten OSCE document
The OSCE is perhaps the only regional security organization that possesses an agreed document on status-neutral steps to be taken in conflict situations. It is the almost-forgotten document, “Stabilizing Measures for Localized Crisis Situations”, adopted in 1993. There we read: “The parties involved in a particular crisis situation will be identified in each case in accordance with the relevant norms of international law and OSCE provisions. When such parties are not states, their identification and subsequent participation in a crisis prevention, management and/or settlement process does not affect their status.” In other words, states and other parties can collaborate in crisis prevention and management processes irrespective of their status – if all sides agree to such an approach.
The document offers a rich menu of possible options for action. Under the heading “Measures of Transparency”, we find “extraordinary information exchange” or “notification of certain military activities”. The section entitled “Measures of Constraint” contains proposals such as “treatment of irregular forces” or “constraints on certain military activities”. The “Measures to Reinforce Confidence” are particularly interesting, including proposals for “liaison teams”, “establishment of direct lines of communication”, “joint expert teams in support of crisis management” and “joint co-ordination commissions or teams”.
The measures outlined in this document aim at improving security in and around disputed territories without detriment to status-related positions of principle by the parties involved and without pre-empting the outcome of conflict settlement processes, which will ultimately define the political status of such territories.
Difficult to achieve
In reality, it has been difficult to achieve status-neutral arms control solutions. In fact, there are almost no examples of successful approaches. De facto regimes categorically reject the right of central governments’ right to act as host states on the territory they control for the purposes of implementing arms control or confidence-building agreements. They typically either want to exercise such rights themselves or deny that the disputed territory belongs to the area of application of the agreement in question. Third states that have not recognized a de facto regime are not permitted under international law to cede host state functions – determining the points of entry/exit, providing escort teams or signing inspection reports – to that regime.
If a breakaway region has foreign armed forces stationed on it, states that recognize its independence might claim that the de facto regime has provided host nation consent, whereas the state from which it claims to have seceded will hotly dispute such an interpretation, regarding stationing forces in disputed territories as unlawful occupation in violation of their sovereignty.
In order to link these deliberations to the real world of conflicts, it is useful to analyse the four conflict settings in Europe, where the OSCE is involved in the management of protracted conflicts.
In the case of Nagorno Karabakh, there are no relations between the state (Azerbaijan) and the de facto regime. The only form of exchange is by firing weapons. The situation could be improved by the introduction of transparency measures and an incidents prevention mechanism. The current increase in the number of monitoring visits is a small step in the right direction.
In the cases of Abkhazia and South Ossetia, limited relations between the state and the de facto regimes do exist. Although the latter are not formally recognized as negotiation partners by Georgia, the Geneva International Discussions bring together participants from Tbilisi, Tskhinvali and Sokhumi, Moscow and Washington under the joint chairmanship of the United Nations, the OSCE and the European Union. The Incidents Prevention and Response Mechanisms for South Ossetia and Abkhazia initiated by the Geneva International Discussions deal with concrete problems on the ground. Although they do not currently include arms control agreements, they could be a framework for discussing and implementing such measures.
In the case of eastern Ukraine, the de facto authorities of Donetsk and Luhansk are not part of the official mediation format of the Trilateral Contact Group, but they frequently negotiate with it and have signed the two Minsk Agreements of September 2014 and February 2015. These include a number of ceasefire-related arms control measures, most prominently the withdrawal of certain categories of heavy weapons from security zones of different depths. Here measures of status-neutral arms control are clearly in place.
In the case of Transdniestria, the de facto regime is officially recognized as a negotiation partner by the state concerned and is part of the formal 5 + 2 negotiation scheme (Moldova, Transdniestria, OSCE, Russia and Ukraine, plus the European Union and the United States). Against this background, the OSCE Mission to Moldova, supported by Russian and Ukrainian experts, elaborated a comprehensive package of arms control and CSBM measures in 2004/2005 that would have led to a total demilitarization of these two entities had it been implemented, which has not been the case. The two most probable reasons for this failure were the worsened political atmosphere after the failure of the 2003 Kozak Memorandum (an agreement on an asymmetric unified Moldovan state), and the fact that the proposals included the entire territory of both Moldova and Transdniestria and, thus, implicitly treated the two entities as equal – an approach that backfired due to the perception on the part of Moldova that Transdniestria should not be treated as equal.
These examples show that the relationship between the more internationally recognized state and the seceding de facto regime is the key factor that decides the feasibility of status-neutral arms control. Although our four examples do not have a good record of success, they do show that status-neutral arms control measures can be implemented if all sides agree.
A more extensive article by the authors on this subject is due to be published in 2017.