XIII.

Establishing a De Facto State through an

International Process

Another option for a settlement avoids issues of the de jure status of

the entity altogether. This can occur either informally (and perhaps
not entirely by design, at least on the part of the international
agencies involved) or somewhat more formally. A possible example
for the former may be the emerging arrangements in relation to
Abkhasia and South Ossetia. Those territories had been subjected
to the occupation by significant numbers of Russian armed forces
after Georgia had attempted to retake South Ossetia on 8 August
2008. In this situation, the EU obtained guarantees from Georgia
not to use force again, or even deploy its forces, in both territories
– areas that would nominally be considered its own territory.
Instead, the EU agreed to deploy an observation force of around
200, in order to implement its ‘guarantee’ of this undertaking.250
Although the EU and others had voiced strong objections to the
purported independence of the territory, they have nevertheless
taken steps that will in effect stabilise the effective control of the local
authorities, supported by Russian forces, for a prolonged period.
While this undertaking was to be balanced by international talks, the
substance of these remained contested. During the first round of
discussions held in Geneva, Russia insisted on the presence of
Abkhasia and South Ossetia as independent states. It refused
discussions on status following its own recognition of both entities as
states. Russia instead insisted that only topics agreed by all parties,
including the governments of the two ‘states’, would be addressed.251

250
EU, Implementation of the Plan of 12 August 2008 and Reaffirmation of the
Commitment of all the Parties to Implement in Full all of the provisions of the
Medvedev-Sarkozy six-point plan of 12 August 2008, 8 September 2008. On file with
the author.
251
Ministry of Foreign Affairs of the Russian Federation, Implementation of the Plan of
Russian President Dmitry Medvedev and French President Nicolas Sarkozy, 12 August
2008, Press Release 1321-8-092008, 8 September 2008.

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 Establishing a De Facto State through an International Process
This would of course not include their status. Hence, the talks on
status do not appear likely to overturn the de facto situation on the
ground. Instead, the EU has in a way guaranteed its persistence,
including through the deployment of a monitoring force on
Georgia’s side of the internal dividing line.
A more complex example of creating an effective entity without
pronouncing oneself on its status is furnished by the Ahtisaari
negotiations on the future status of Kosovo. In March 2007, the
UN Special Envoy who had led negotiations about Kosovo’s future
status presented his Comprehensive Proposal for a Settlement. In
contrast to the 1999 Rambouillet document on Kosovo and
Security Council Resolution 1244 (1999) establishing the UN
mandate for Kosovo, the proposal assiduously avoided references to
the territorial integrity and unity of Serbia.252 However, it also
stopped short of assigning independence to Kosovo. There was no
reference to sovereignty.
On the other hand, the document made it clear that Kosovo
would have all the powers of governance which attach to
statehood, covering the legislative, the executive, and the judicial
branches. According to UNMIK Regulation No. 1, adopted
pursuant to Security Council Resolution 1244 (1999), “[a]ll
legislative and executive authority with respect to Kosovo,
including the administration of the judiciary, is vested in UNMIK”.
The proposed package provided that UNMIK’s mandate would
expire and all legislative and executive authority vested in UNMIK
would be transferred to the governing authorities of Kosovo.
Hence, Kosovo would have gained full public powers consistent
with state sovereignty. Belgrade, on the other hand, was not
mentioned at all in this context. It retained no original or sovereign
powers relating to Kosovo. All it would have been able to do was to
offer voluntary cross-border cooperation.
The package confirmed the aim of statehood in several other

252
Letter dated 26 March 2007 from the Secretary-General addressed to the President of
the Security Council, S/2007/168/Add.1.

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 Escaping the Self-determination Trap
ways. It unambiguously assigned to Kosovo the capacity to enter
into international relations, to conclude treaties and to become a
member of international organisations. It specifically requested
Kosovo to sign and ratify the European Convention on Human
Rights – an act which can be performed only by a state. The
package even insisted that Kosovo should assume control of its air
space – another function typically exercised only by a fully
sovereign state.
Overall, therefore, the Ahtisaari proposal provided Kosovo with
all the competences necessary for statehood, but left it to individual
states or institutions to form a view as to the statehood of the
entity. This was a result of the fact that it was known that the
two parties, Serbia and Kosovo, would never be able to agree
on status. Ahtisaari did, however, attach to his proposal a
separate recommendation to the UN Security Council. That
recommendation was in favour of ‘supervised’ independence,
offering continued international involvement in the governance of
Kosovo even after statehood.253 Despite the failure of the Ahtisaari
process, this solution was nevertheless implemented by way of
unilateral, but still supervised, independence.

253
Ibid., enclosing the Report of the Special Envoy of the Secretary-General on Kosovo’s
Future Status, at 4.

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