On Legal Status of the Russo-Chechen Conflict by Akhmad Zakayev
Without waiting for an official annoucement of the already known results of the pseudo-referendum on the so-called Constitution for Chechens, the Russian President Putin declared the problem of territorial integrity of the Russian Federation finally solved. Six weeks later, in his annual Address to the Federal Assembly on May 16 Putin described the situation in Chechnya in the following terms: “De jure and de facto the integrity of the RF has been restored.” Despite our extremely negative opinion on the Russian president we must admit that by saying that he has made a crucial statement. His statement means that first, up to 23 March 2003 the Chechen Republic was not actually part of the RF legally. Second, the actual goal of the Chechen war was not fighting terrorism but seizing the territory of the Chechen Republic.
Unfortunately, not a single official body, either in Russia or abroad, will dare seize Putin?s hand and ask what was actually happening before 23 March, 2003, in that case.
Officially, it is on September 6, 1991 that the Chechen Republic declared its independence. That date has nothing to do with any legal act relevant to Chechnya?s independence. It would be more accurate to say that the day of September, 6 has more to do with a surge of political and civil activity in the republic, typical for the times later known as a failed coup attempt in the Soviet Union. In actual fact, the Chechen Republic proclaimed its independence on November 27, 1990, when the Supreme Soviet of the Chechen and Ingush Autonomous Soviet Socialist Republic, acting in absolute compliance with universally accepted principles of international law and the legislation acting in the terrirtory of the USSR at the time, declared state sovereignty of the Chechen-Ingush Republic.
Such epithets as “self-declared”, “unrecognised”, or “rebellious” are often used to decsribe the Chechen Republic; however, they have nothing to do with reality and sound unnecessarily provocative. From legal standpoint, the sovereign Chechen Republic is as legitimate a state as the USSR used to be and modern Russia now is.
In April 1990, quite in the spirit of Gorbachev?s reforms of the Soviet system, aimed to liberalize it, the Supreme government of the USSR adopted two laws, which were, quite literally, of paramount importance for the nations comprising the Soviet Union: “On the Basics of Economic Relations between the Union of the SSR and the Union and Autonomous Republics” of 10 April and “On Dividing Authority between the Union of the SSR and Federation Subjects” of 26 April. Beside more general provisions, those laws contain a number of articles radically changing the status of, for example, autonomous republics. Autonomous republics were unambiguously equated with union republics in their rights. Both types of republics enjoyed the right to “free self-determination of the people” (the Law of 26.04., Art.1). Autonomous republics, as well as union republics, were federation subjects and members of the Union of the SSR (the law of 26.04., Art 1).
“Any unresolved territorial dispute arising between union republics and autonomous territorial units shall be, by mutual consent, referred for settlement to the Committee on Nationalities at the Supreme Soviet of the USSR” (ibidem, Art.3). “The following issues shall be under the sole jurisdiction of the Union of the Socialist Republics as represented by the governmental bodies of the highest level: (-)
2) admission of new union republics into the Union and approval of new autonomous and status changes of already existing autonomous republics, autonomous oblasts (“regions”), and autonomous okrugs (“counties”);
3) settlement of any disputes between union republics, between union and autonomous republics, or autonomous territorial units in case of their appeal to the government of the Union of the SSR” (ibidem, Art.6).
No difference between the notions of “union” and “autonomous” republics can be found in the text of the Soviet Union?s law ” On the Basics of Economic Relations between the Union of the SSR and the Union and Autonomous Republics”. In every clause, whether it refers to rights or obligations under the law, the expression “union and autonomous republics” is applied. In Article 5, entitled “Contract Forms of the Economic Ties between the Union of the SSR, Union and Autonomous Republics”, the expression “union and autonomous republics” is replaced by one word, “republics”, all throughout the text of Paragraph 1. Also, Paragraph 2 of the same article is quite remarkable, as it seems to have been written in a way to underline that there is no difference between “union” and “autonomous” republics and their status. For example, “2. Union and autonomous republics shall have the right to open their representation offices, funded from republican budgets, in the capital of the Union of the SSR and capitals of other republics. Organs of the national government of the Union of the SSR shall have the right to open their own agencies and offices in the republics, provided they give their consent.” It is worth noting that by the law in question, as well as by the other law, the all-union highest government is named as an arbitration autrhority in any disputes arising between federation subjects. See, for example, Article 6: “5. Any disputes on economy issues arising between the government of the Union of the SSR and union and autonomous republics and also any disputes between the republics arising in the process of abiding the laws of the USSR, directives and orders of the government of the USSR, shall be referred to the Supreme Soviet of the USSR for their settlement on the basis of the recommendations issued by the Federation Council.”
Therefore, if an unbiased approach is adopted, one should admit that as early as in April 1990 Chechens stopped being the notorious “internal problem of Russia”. In its Directive of 26.04.1990 “On Giving Effect to the Law of the USSR on Dividing Authority between the Union of the SSR and Federation Subjects”, Paragraph 6, the Supreme Soviet of the USSR established the following: “Supreme Soviets of union and autonomous republics shall be offered to alter the legislation of their respective union and autonomous republics to comply with the USSR Law “On Dividing Authority between the Union of the SSR and Federation Subjects”.
Prior to the adoption of the two laws mentioned above another Law of 3 April 1990 was passed, the one “On the Order of Settlement of the Issues Related to Union Republics Leaving the USSR”. Article 3 of this Law is highly relevant for Chechens, therefore, it makes sense to quote it in full: “Article 3. In a union republic comprising autonomous republics, autonomous oblasts (“regions”) and autonomous okrugs (“counties”) a separate referendum shall be held regarding every autonomy in question. The people residing in the autonomous republics and other autonomous territorial units shall have the right to independently decide on the issue of their further stay in the Union of the SSR or the union republic leaving the Union; as well as the right to raise the issue of their own “political and legal status”.”
A brief analysis of the Soviet legislation in force in the end of April 1990, which has to be brief because of the mere nature of this article, shows that Perestroika gave the Chechen people two fundamentally new rights: first, the right to elevate their political status to the level of a union republic and, as a full-fledged subject of the USSR, to sign the revised Union Treaty; and, second, the right to independently define their own political and legal status in case either the RSFSR leaves the USSR or the USSR disintegrates, which is essentially one and the same thing. The legislation defines these two things rather unequivocally, and even if the most biased approach is adopted, no other alternative interpretations of the law are possible in this case.
The Declaration of State Sovereignty of the RSFSR, adopted by the Congress of People’s Deputies of the RSFSR on June 12, 1990, complied with the revised legislation of the USSR. However, declaration of state sovereignty by the autonomous republics, which at the time were part of the RSFSR, complied with the same laws. The new laws of the USSR did not prescribe any concrete status or name to be adopted by a republic. One must admit that the actual content of the declared sovereignties differed, depending on the mood of the authorities in the given republics. However, there was one thing that all former autonomous republics and regions agreed on. All of them very decidely got rid of the definition of “autonomy”, which used to give them an inferior status, as compared to the union republics.
The text of the Declaration of State Sovereignty adopted by the Supreme Soviet of the Chechen and Ingush Autonomous Soviet Socialist Republic (ChIASSR) on 27 November, 1990 was very clear about the status of the Chechen and Ingush Republic as a sovereign state. The government of the Chechen and Ingush Republic declared they were prepared to sign the revised union treaty on equal terms with all its other members. The sovereignty declared by the ChIR found approval and understanding in the highest offices of the USSR government. Soon the state delegation of the ChIR, just like all other delegations of the former union republics, was actively involved in drafting the new, revised version of the union treaty. Andarbek Yandarov and Vakha Sagaev, who were at the time holding offices of Deputy Chairmen of the Supreme Soviet of the ChIR and Presidium Members of the Supreme Soviet of the ChIR, were members of the Chechen and Ingush delegation. The new union treaty was expected to be signed on August 20, 1991.
The Russian propaganda is taking great pains to make people believe that the Chechen sovereignty roots in an “armed rebellion”. Allegedly, in September-October 1991 a group of armed men led by the former Soviet general Jokhar Dudaev seized the power in the republic and forced the Supreme Soviet of the ChIR, chaired at the time by Doku Zavgaev, to dissolve itself. The fact that by that time the Chechen and Ingush Republic had been existing as an independent state outside of the RSFSR for a whole year is deliberately overlooked. The period between November 1990 and November 1991 was filled with activities aimed to fill the notion of sovereignty of the ChIR with legal substance. So, one should mention a special directive of the Supreme Soviet of the ChIR of 11 March 1991, which banned the all-Russia referendum on introducing the institution of presidency in the RSFSR on the territory of the ChIR. The Supreme Soviet of the ChiR chaired by D. Zavgaev motivated their decision by quoting the Declaration of State Sovereignty of the ChIR of 27 November 1990, which said that the republic was no part of the RSFSR.
Contrary to the assertions of the Russian government, Jokhar Dudaev?s rise to power was not associated with a riot. True, there were many political rallies held in the republic at the time, which put forward all sorts of demands, but the wave of rallies was only echoing the events in Moscow, which happened there at the time of the attempt at a coup in August 1991. As passionate as those street rallies were in Grozny in September 1991, they did not lead to a violent overthrow of the Supreme Soviet of the ChIR. The Supreme Soviet of the ChIR dissolved itself legitimately, which means that all relevant legal procedures were adhered to.
A Temporary Supreme Soviet of the ChIR was then established and its only duty was to organize the elections of the Parliament and President in the shortest possible time. As the extraordinary congress of the Ingushi people was held at the same time and the deputies representing Ingushi interests at all levels expressed their wish to form an independent republic and join the RSFSR, the Temporary Supreme Soviet declared the elections of the Parliament and President of the Chechen Republic alone. Incidentally, during the election campaign the Council of Ministers of the ChIR was still functioning in the republic, and it was doing their job until it was replaced by the Committee for State Economics Management (KOUNKh), established by D. Dudayev after he was elected President.
The Parliamentary and Presidential elections were held in the Chechen Republic on 27 October 1991 and D.Dudaev?s supporters won very convincingly. True, there was a lot of commotion in the Republic at the time, and surely, there were cases when laws were bent a little; however, that was happening on a much lesser scale than, for example, in Moscow of the same period. Therefore, one can state that the first President and Parliament of the Chechen Republic were legitimate heirs of the Supreme Soviet of the Chechen and Ingush Republic, and there were never any doubts about the legitimacy of the latter. The question is, why then the Russian authorities are so insistently bringing the autumn of 1991 into the highlight whenever the issue of the Chechen independence is raised. We think that by doing so they are trying to deny the sovereignty of the Chechen Republic its incontestable legal base, which consists of the following legal documents: first, all the laws mentioned above, that is, the laws of the USSR of 3, 10 and 26 April 1990; second, the Declaration of the State Sovereignty of the RSFSR of 12 June 1990; third, the Declaration of the State Sovereignty of the ChIR of 27 November 1990.
It must be admitted that Russian president, as disagreeble as he is, proves to be a fully competent lawyer in the issue of legitimacy of the Chechen independency. It turns out that he knew the true value of the statements made by many Russian and foreign politicians referring to “Chechnya being Russia?s internal matter”. Talking about the referendum of the Chechen people, he was right when he was saying that only the people of Chechnya had the right to change the status of the Chechen Republic, and he was talking about the people that had already made a clear decision about their status on November 27, 1990, with the help of the Supreme Soviet of People’s Deputies. However, although Putin did understand by 23 March 2003 that Chechen Republic had been no part of the RF, either de jure or de facto, he made an annoying legal blunder. For some reason he failed to see that he had no authority to order or hold a referendum in a foreign country.