THE INTERNATIONAL LEGAL BASIS
OF THE INDEPENDENCE OF THE
CHECHENYAN PEOPLE AND THEIR REPUBLIC
The continuity of States and of their territorial integrity
58. Since the prohibition of war and of the annexation of territories by force, the principle of the continuity of State has been recognized in order to counteract and affirm the illegality of occupation or annexation of foreign countries and territories.
59. The prohibition of war finds its roots in the Convention for the Pacific Settlement of international Disputes, signed at The Hague, on 18 October 1907. Then came the Covenant of the League of Nations which embodied in its preamble that the High Contracting Parties endeavor to promote international cooperation and to achieve international peace and security"by the acceptance of the obligation not to resort to war,60. The third source is the General Treaty for the Renunciation of War as an Instrument of National Policy, of 27 August 1928 (came in force on 25 July 1929), known as the "Briand-Kellogg Pact". The preamble stated:
by the prescription of open, just arid honorable relations between nations,
by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and
by the maintenance of justice arid a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another".
"Deeply sensible of their solemn duty to promote the welfare of mankind;
Persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made to the end that peaceful and friendly relations now existing between their peoples may be perpetuated;
Convinced that all changes in their relations with one another should be sought only by peaceful and orderly process, and that any signatory Power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this Treaty...
61. The declarations between 1941 and the signing of the Charter of the United Nations on 26 June 1945, also denunciated war and affirmed the necessity of peace and of uniting to implement the rule of law among nations As a matter of course the Charter of the United Nations reaffirms the same goals It states in its preamble:"We the people of the United Nations62. These Purposes and Principles are again stated in Article 1 of the Charter of the United Nations:
to save succeeding generations from the scourge of war..., and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,
And for these ends
to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and
to ensure, by the acceptance of principles and the institution of methods, that armed force shall riot be used, save in the common interest, and
to employ international] machinery for the promotion of the economic and social advancement of all peoples,
Have resolved to combine our efforts to accomplish these aims.“The purposes of the United Nations are:63. Thus, since war is declared in tile preamble as an undesirable evil, Article 1.1 of UN Charter speaks of aggression and of collective measures for the prevention and removal thereof, and even of threats to the peace and breaches of the peace.
1. To maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to other appropriate measures to strengthen universal peace;
3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and
4. To be a center for harmonizing the actions of nations in the attainment of these common ends."
64. We must explain here the elements of statehood in international law. The writers follow a concept of statehood which is contrary to the prohibition of war and of the annexation of territories by force. They speak only of three material elements as sufficient components of statehood people, land and government. To these three elements one must add a fourth element, that is, the element of legality. The essence of law is to define what is legal and what is illegal If there is air international law and the state is subject of that law, there must be a condition or an element which distinguishes a legal state from an illegal one, a state which is recognizable as such by international law from that which is not recognizable as such. This element of legality cannot be other than the free exercise of self-determination of the indigenous people, their sovereignty over the whole of their territory and, hence, the territorial integrity of their state.
The continuity of the independence of the Republic of Chechenya
65. As mentioned above, the Republic of Chechenya regained its independence in 1917 by the fall of the Moscow Empire under the Czar. Its occupation by Moscow under the Red Army does not cause its statehood and independence to cease to exit. Occupation is an obstruction of statehood and independence, and not an extinguishment or a nullification thereof.
66.a The sovereignty and independence of the people and the Republic of Chechenya and their occupation by Moscow is revealed by the constitutions of the Russian Socialist Federative Soviet Republic and of the Union of Socialist Soviet Republics. We will deal with these so-called constitutions in what follows and qualify them legally with regard to their legitimacy in relation to the occupied and oppressed people of Chechenya.
The recognition of independence of Chechenya by the first Russian structure after the fall of the Czarist Russian Empire
66. In their message of 3 December 1917 "To all the Working Moslems of Russia and of the East", V.I. Lenin, the Chairman of the Council of People's Commissars, and J.V. Stalin, People's Commissar for Nationalities, condemned Western imperialism, recognized the independence of the national institutions of the Chechenyans, and of other nations which had fallen under the Russian empire, yet maintained the word "Russia" in order to inherit the Russian Empire, as will appear from the USSR constitution of 1923.
67. The said message of 3 December 1917 was concluded by stating:"Comrades, brothers, we are advancing towards an honest, democratic peace firmly and resolutely.68. This bears a clear recognition of the right of Chechenya to restore and maintain its independence front the Russian empire. The recognition of the independence of the Muslims of Chechenya is made here on the same level as that of the Muslims in other countries of the East, such as Turkey, Iran, etc.
On our banners we bring liberation to the oppressed peoples of the world
Moslems of Russia!
Moslems of the East!
On this road towards a renewal of the world we await your sympathy and support (emphasis are added).
69. As mentioned above, the promised honest democratic peace and liberation of the oppressed peoples were ignored, as the Red Army invaded Chechenya in 1921-1922.
In the period 1918-1922
The confirmation of the independence under the first constitution of the RSFSR
70. The first constitution of the Russian Socialist Federated Soviet Republic (RSFSR) was adopted on 10 July 1918. Since this constitution was in force when Chechenya was occupied by the Red Army in 1921-1922, its provisions are applicable as the basic law of the occupying power.
71. This constitution affirmed under article 2 that:
"The Russian Soviet Republic is established on the basis of a free union of free nations, as a federation of national Soviet Republics".
This article defines the RSFSR as a federation of various distinguishable "nations" having the international legal form of "republics" arid governed by representative bodies, "Soviets".
72. The constitution affirmed the freedom to join the union by stating in Article 8:
"At the same time, striving to bring about the really free and voluntary, and, therefore, the complete and lasting union of' the working classes of all the various nationalities of Russia, the Third all Russian Congress of Soviets confines itself to formulating the main principles of the Federation of the Soviet Republics of Russia, leaving to the workers and peasants of each nationality the right to decide freely, at their own national Congress of Soviets, whether they desire, and upon what basis they desire, to participate in the federal Government and in other federal Soviet institutions," (emphasis added).
73. This is an affirmation of the sovereignty and independence of the republics constituting the federation, including Chechenya. It is an arrangement to unite to reach certain goals, rather than “one country" organizing itself in a federal form. The reason of this arrangement is recognized in the constitution the various nationalities uniting together to reach their common goals It is in fact a regional organization or a small regional "United Nations".
74. Moreover, this affirmation of free will and independence, itself negates freedom by stating that the free decision must be exercised by the national Congress of Soviets, and not by a freely established representative body.
75. The subsequent question is whether the constitution envisaged secession. In fact, in its Article 49e it did deal with the "admittance" to and the "severance" from the union as falling within the competence of the All-Russian Congress of Soviets and the All-Russian Central Committee. It stipulates:
"The admittance of new members into the Russian Socialist Federal Soviet Republic, and the recognition of the severance of those parts which have left the Russian Federation."
76. Firstly, Chechenya did not join freely but was occupied by the Red Army in 1921-1922 after it had regained its independence by the fall of the Russian empire, This means that, legally, it never formed a part of the RSFSR of 1918-1922.
77. Secondly, if Chechenya would have united freely it would have had the status of a sovereign independent nation and a "union republic" uniting with other nations and having the right to leave the RSFSR union.
78. If Chechenya would be considered to have been part the FSRR (Federation of the Soviet Republics of Russia) which emerged in 1918, Chechenya would nave been entitled to free association and free secession.
79. But Chechenya did not join freely and was prevented from secession In fact, the Czar empire was revived under a new form called "All-Russian Central Executive Committee".
80. Front the outset, a dictatorship emerged calling itself the dictatorship of the proletariat or the working people, while the communist party assuming this kind of dictatorship was and remained a minority.
81. That committee decreed on 20 January 1920 to annex Chechenya and Ingushetia under the Gorskaya Autonomous Socialist Soviet Republic of the RSFSR. The Red Army carried out the new imperial decision by annexing Chechenya by force in 1921-1922.
82. On 20 November 1922, Chechenya was separated from Gorskaya ASSR and made an Autonomous Region under the RSFSR.
83. Since Chechenya was forced to be part of the RSFSR, its legal status can only be qualified as an obstructed independent sovereign nation and an obstructed state under international law.
Under the 1922 Treaty of Union of the USSR:
84. A Union of Soviet Socialist Republics was established to include the countries in which the Party in Moscow and the Red Army succeeded to secure the manipulation of the people and power with false hopes for national freedom, equality, and security, not only in the RSFSR but also in Ukraine, White Russia, and the Trans-Caucasus which included Georgia, Azerbaijan and Armenia.
85. The 1922 Treaty of Union of the USSR adopted on 30 December 1922, had the following features.
85.1. It followed the structure of the RSFSR by having union republics coming together on the same model of the RSFSR But, under the heading "The Treaty of Union", which makes it, like the RSFSR, a true international regional organization, a small United Nations, uniting by means of a treaty. The international character of the Union is stressed in the Declaration of Union which is the preamble of the Treaty of Union.
The Declaration of Union stated:
"Finally, the very structure of the Soviet power, which is international in its class character, urges the working masses of the Soviet Republics along the path of union into one socialist family".
Yet, the true intention to revive imperial Russia is revealed by the statement of the Declaration of Union which followed:
"All these considerations imperatively demand the union of the Soviet Republics into a single state".
This statement continues by mentioning the goals enhancing the creation of the Union as one state, while those goals, considering the differing nations making up the union, are better achieved by keeping the union as an international regional organizations:
“... powerful enough to ensure internal economic prosperity, security from foreign attacks, and the free development of her peoples according to their nationality".
On these imperial premises, the Declaration of Union concluded by calling the Union as a "new united State", not as united States.
85.2. It treated the RSFSR as one union republic The other union republics are the Ukrainian SSR, the White Russian SSR, and the Trans-Caucasian SFSR (Georgia, Azerbaijan, and Armenia).
85.3. It recognized that the USSR union republics which are mentioned have also the right to
secede, this time more clearly stated under Article 26, thus:
"Each of the united republics retains its full liberty to leave the Union if it so desires
85.4. It furthered the constitutional manipulation by considering the RSFSR as a union Federative republic without any reference to its constituent parts or the status thereof.
86. Neither the Declaration of Union, tier the Treaty of Union denied the right of the constituent nations of the RSFSR to free association in and free withdrawal from the RSFSR Legally speaking, the constituent parts of the RSFSR, retained their right to secede from it, which secession would automatically mean their secession from the USSR.
87. It is therefore legally valid to conclude that if Chechenya would have joined the RSFSR freely, it would have retained its right to secede front the RSFSR, after that the RSFSR became a union Federative republic of the USSR in 1922.
88. Since Chechenya was forced to be part of the RSFSR, it retained its legal status as an obstructed independent sovereign nation and an obstructed state under international law.
Under the USSR constitution of July 6, 1923
89. This constitution was in fact a re-statement of the 1922 USSR Treaty of Union. It consisted of a Declaration of Union as a preamble and a Covenant.
90. In its new version, the Declaration of Union affirmed "the voluntary association of... sovereign nations on a basis of equality, each republic reserving for itself the right of free withdrawal from the Union".
91. The Declaration of Union and the Covenant carried further the constitutional manipulation by treating the RSFSR as a union republic of the USSR, as if it were representing one single nation, and, consequently, without referring to its constituent sovereign nations.
92. But Article 15 of the Covenant recognizes the right of autonomous territories of the RSFSR to be represented in the Council of Nationalities, which, with the Council of the Union, form the Central Executive Committee of the USSR, which is the supreme authority of the USSR during the intervals of sessions of the Soviet Congress.
93. Recognizing this right, means that Chechenya had assumed air equal status within the structure of the USSR, which status gave it the power to share in the supreme authority of the USSR.
94. Moreover, neither the Declaration of Union nor the Covenant denies the constituent sovereign nations of the RSFSR the right to free association in and free withdrawal from the RSFSR. Therefore, Chechenya retained its right to free association in and free withdrawal from the RSFSR as was affirmed under the RSFSR constitution of 1918-1922.
95. Since Chechenya was forced to be part in the RSFSR, its inclusion in the structure of the
USSR is illegal and does not change its status as an obstructed independent sovereign nation and an obstructed state under international law.
In the period July 6, 1923 - December 6, 1936
96. Already on 7 July 1924, the Gorskaya ASSR was abolished and an Ingush Autonomous Region was established. On 15 January 1934 the Chechen and Ingush Autonomous Regions were added together as one autonomous region.
97. This act of adding the two regions to be one region is a violation of the sovereignty and independence of each nation, whatever historical ties they have. Chechenya retains its status of being an abstracted independent nation and an obstructed state under international law.
Under the USSR constitution of 6 December 1936
98. This constitution is the first in which Chechenya is mentioned. It states under Article 22 that the Checheno-Ingush Republic is an Autonomous Soviet Socialist Republic, within the RSFSR The inclusion of the Checheno-Ingush Republic under the Russian Soviet Federative Socialist Republic was forced on it by that article, as having been a part of the Russian empire under the Czar, which inclusion is a violation of the principle of "really free and voluntary" association of free nations pronounced under Article 8 of the constitution of 1918 of the RSFSR, and also a violation of the right to secession recognized under Article 49e of that constitution. The Republic of Checheno-Ingush has riot joined the RSFSR freely, and the presence of the RSFSR in its territory can only be legally qualified as an occupation The resistance to this occupation amounts at least to secession.
99. Under this constitution, the Chechen-Ingush Republic is equally treated by sharing through elections in the higher organs of state power of the USSR (Articles 34 and 35). Moreover, it enjoys full sovereignty own constitution, own legislature, and own cabinet (Articles 89-93). The only limitation is that its constitution must be in conformity with the RSFSR constitution (Article 92), which by its turn must be in conformity with the USSR constitution (Article 16).
100. After the amendment of 1 February 1944, the Checheno-Ingush Republic was still mentioned under Article 22 as an Autonomous Soviet Republic with the same status as mentioned above.
101. This status under the USSR constitution of 1936 links the Chechenyan nation as part of the Chechen-Ingush ASSR directly with the USSR, which means that the fall of the USSR leads to the termination of that direct relation and the regaining of full independence and sovereignty.
102. Again, since the initial inclusion of Chechenya under the RSFSR was forced on it, it retains its status as a sovereign nation. whose independence and statehood are obstructed.
The legal qualification of the genocidal deportation of the Chechenyan people in 1944
103. The aforementioned forms of genocide committed against the Chechenyans and the Ingushians, present at least a violation of the treaty concluded to form the regional super-structures of the RSFSR and later of the USSR. The kind and the seriousness of the violation committed, amounts to a total repudiation of the treaty by the regime in Moscow, representing the USSR and the RSFSR, not only as far as the Chechenyan and the Ingushian peoples are concerned, but also in regard to all the other nations, whether deported or not.
104. If Checheno-Ingushetia had ever been legally part of the RSFSR or the USSR, the genocidal forms committed against its peoples in 1944 result in its total dissociation from those structures, and its regaining the initial stage of its existence, that is, independence and full sovereignty.
104.a. The genocide of a nation under a common structure by the central authority of that structure is a renunciation of the legal tie and a destruction thereof.
Under the amendment of 25 February 1947 of USSR constitution of 1936
105. In the amendment of February 1, 1944 of the USSR constitution of 1936, the Checheno-
Ingush Republic was still mentioned under Article 22 as an ASSR.
106. In the amendment of February 25,1947, the Checheno-Ingush Republic was not mentioned under Article 22 as an ASSR. It was demoted to the rank of just a "region" within the RSFSR. A region has powers of a local government under the authority of a Soviet of Working People's Deputies which are elected by the working people of the region (Article 95), and elects by its turn the Executive Committee (Article 99). This executive organ is accountable both to the Soviet of Working People's Deputies and to the superior Soviet of Working People's Deputies (Article 101).
107. The same demotion was retained in the amendment of 1 June 1949 of the constitution of the USSR of 1936.
108. The system of the USSR or the RSFSR does not embody a demotion possibility of the constituent sovereign nations, but rather a promotion possibility Article 14 which deals with the scope of the jurisdiction of the USSR stipulates (under its paragraph no. vi) that the USSR has the power of "approval of the formation of new Autonomous Republics and Autonomous Regions within Union Republics". A distinct trend to promote the materialization of the independent sovereign status of the constituent nations can be observed in the status of the ASSR's. The demotion of the Checheno-Ingush Republic front the status of an ASSR is therefore illegal arid can only be legally qualified as legal anarchy arid high treason against the constitution of the superstructure and the sovereign nations in question.
109. The demotion took place as a means of territorial and political genocide committed by the genocide-gang of Stalin.
110. Analytically speaking, the demotion of Checheno-Ingushetia from the status of an ASSR to that of a region, comprises two legal realities the dismissal front the status of an ASSR and its re-admission as a region. The dismissal from the status of an ASSR means the total departure front the USSR and the RSFSR. The re-admission as a region is illegal and void, because it must be based on the free will of Checheno-Ingushetia, and that republic did not exercise its free will to that effect. The free will of association is the basic law of the treaty bond between the differing sovereign nations making up the USSR and the RSFSR. One must conclude that, since this so-called demotion, Chechenya-Ingushetia seized legally to be part of the USSR and the RSFSR, if the previous relationship could ever be called a legal one After the dismissal and the involuntary re-admission, Chechenya-Ingushetia was simply submitted by force to the structures of the USSR and the RSFSR
111. The length of the period in which this dismissal and involuntary re-admission took place, adds to the validity of this legal qualification. This dissociation measure covered the period 7.3.1944 until 9.1.1957.
Under the amendment of 1960 of the USSR constitution, of 1936
11 2 The Checheno-Ingush republic is reinstated as an ASSR, with tile sovereignty and powers which goes with this status.
113 This is equally an involuntary re-admission contrary to the principle of free association which formally underlies the regional super-structures of the RSFSR and the USSR.
114. This involuntary re-admission as an ASSR stands illegal and invalid, and results in the continuation of the subjection of the Republic of Chechenya-Ingushetia by force to the Moscow regime.
Under the USSR constitution of 7 October 1977
115. The important remark to make here is that this constitution reaffirms in its preamble the ideas and principles of' the first RSFSR constitution of 1918, and of the constitutions of 1924 and 1936 of the USSR This means that it reaffirms the right to secession recognized by the RSFSR constitution of 1918 to the constituent union Republics of the RSFSR.
116 These provisions reaffirm the legal fact that Checheno-Ingushetia was never a legal part of the RSFSR because it never voluntarily joined this regional super-structure. These provisions also admit the right of the Republic of Chechenya-Ingushetia to secede from that regional superstructure.
117. Moreover, this constitution reaffirms the status of' the Checheno-Ingush Republic as an Autonomous Soviet Socialist Republic, with the same sovereign powers (Articles 82 and 83), as in the 1936 construction Article 84 adds the affirmation of the territorial integrity. In other words, it extends the involuntary re-admission of tile Checheno-Ingush Republic to the membership of the regional superstructures of the RSFSR or the USSR, and thereby gives a false constitutional cover to the continued forced subjection of that republic to the Moscow superstructures of the RSFSR and the USSR.
Under the RSFSR constitution of 13 April 1978
118. This constitution opens by asserting that "Soviet power has guaranteed equality and free self-determination for all the peoples of Russia", which cannot hold true in the case of the occupation, genocide and russification of, among others, the Chechen-Ingush Republic and its peoples In other words, this constitution re-affirms the forced subjection of that republic to the Moscow super-structures of the RSFSR and the USSR, against the free will of its people and despite their continuing resistance.
119. Most important is that the constitution also reaffirms the ideas and principles of the RSFSR constitutions of 1918, 1925 and 1937 This means that it reaffirms the right to self-determination, the right to free association with the RSFSR, and the right to secession, on which rights the RSFSR is based
120. This is untrue in the case of Chechen-Ingush Republic which this constitution still refers to under Article 71 as an ASSR. The statement under Article 68 is equally untrue that the RSFSR "has united -as a result of the free self-determination of nations and on a voluntary and equal basis - together with the Soviet Socialist Republics". Firstly, the RSFSR is not made up of one nation, but is on the contrary made up of a number of differing nations. Secondly, the Chechenyan and Ingushian nations did not enter the RSFSR voluntarily The same applies to many other nations under the RSFSR.
121. In any case, this constitution recognizes the Chechen-Ingush Autonomous Republic as a Soviet Socialist State, and independent outside the limits of the rights of the USSR and the RSFSR, its constitution shall conform to these limits (Article 78), and its territory may not be altered without its consent (Article 80) As far as its relations with the federal government and the USSR are concerned, it "participates in the resolution of questions within the jurisdiction of the RSFSR and the USSR through the supreme organs of state power and administration of the RSFSR and the USSR respectively" (Article 79).
122. The legal form of the federation is again characteristic of a regional United Nations, rather than of one unitary federal state ]'he reason for this, is that the various nations which make up the RSFSR Could trot otherwise remain together tinder one form of organization.
The legal effect of the collapse of the USSR on August 1991
123. It is widely considered that the collapse of the Union of Soviet Socialist Republics started by the failure of the coup d’etat of August 1991.
124. It is a matter of course and a legal consequence that the obligation to remain affiliated with one form of organization ends when the organization starts to collapse or collapses altogether. The members of the former organization will have duties and rights regarding the assets of the collapsed organization and the liquidation of those assets.
125. In other words, arguendo, and without regard to the right to secession retained by the constituent republics of the RSFSR, if the Republic of Chechenya would have been a voluntary member to the RSFSR, and the RSFSR, representing all its members, including the Republic of
Chechenya, became a member in the USSR, the collapse of the USSR will result in the following claim by the Republic of Chechenya.
The Republic of Chechenya remained a part of the RSFSR because the RSFSR was also part of the USSR, and by the collapse of the USSR, the structure of the organization ill which Chechenya was a part has drastically changed, so that it uses its sovereignty, independence and territorial integrity to establish new inter-national relations with its full consent based on the free exercise of the right of self-determination by its people.
126. This is the inure so because the uniting factor or raison d’etre of the RSFSR and the USSR is abandoned: socialist federalism, and is replaced by a so-called free market economy.
127. All the other republics of the RSFSR are found in the same legal situation and face the same legal consequences.
128. Although this is simple, reasonable and fair, one cannot expect this to be easy to comprehend by Moscow and the beneficiaries of the old structure As mentioned above, the virus imperialis of which Moscow is suffering is likely to cause high fever and extreme feverish action when a republic, facing the collapsed structure and the end of the raison d’etre thereof, exercises its statehood, sovereignty and independence in full.
The legal qualification of the Chechenian Declaration of Independence of 1 November. 1991
129. The legal consequences of the collapse of the USSR urged the people of the Republic of Chechenya to exercise their equal sovereignty and to reaffirm their independence as a state by itself not belonging ally more to any superstructure.
130. Moreover, the people of Chechenya had already suffered front occupation, oppression and genocide by the same superstructure which was illegally forced on them.
131. The declaration of independence of the Republic of Chechenya took place on 1 November 199l on basis of the general elections held for this purpose in the presence of international observers.
132. This declaration of independence is legally valid because of the legal consequences of the collapse of the USSR superstructure and because of the fact that the statehood, sovereignty and independence of the republic of Chechenya never ceased to exit, and were at times obstructed arid at other times recognized by the superstructure (USSR and RSFSR). So that the remnants of the collapsed super-structure who attempt at establishing a new superstructure cannot claim any obligation of any of the republics members of the collapsed super-structure to join the new ,;super-structure
133. Furthermore, on all States, within or without a new regional super-structure, falls the legal obligation to respect this declaration of independence and to conduct their relations with the Republic of Chechenya on basis of mutual arid equal recognition, equal rights, and cooperation, in accordance with the Charter of the United Nations and the principles of modern international law.
The legal qualification of the position of Moscow and its declaration of the state of emergency in Chechenya
134. Despite the aforementioned international legal facts, Moscow took the imperialist, illegal and illegitimate position that the Chechenyan Declaration of Independence would be an act of unpermissible secession, arid on 8 November 1991 unilaterally declared a state of emergency in the republic of Chechenya. This declaration is a violation of Article 30 of the RSFSR 1978 constitution which states that duties of state organs on security matters are defined by USSR legislation. The USSR had already collapsed on the hands of the RSFSR led by Yeltsin, but its formal existence was still recognized.
135. Moscow placed the Chechen Republic under economic and military blockade. It also sent troops into the republic The troops refused to arrest Dudayev and, under the pressure of the Parliament, Yeltsin withdrew the state of emergency and called the troops back. The Parliament agreed on the military blockade of the Chechen Republic.
136. On this basis the Parliament of the RSFSR entered into negotiation with the independent Chechen Republic, in recognition of its equal sovereignty and territorial integrity The subject of the negotiations were secession from the RSFSR and the entering into another kind of relations with it The negotiations between the Parliament of the RSFSR and the independent Chechen Republic qualifies as a recognition of the sovereign free will of that republic and its right to self-determination.
Chechen Republic fulfills the criteria of statehood
137. Besides the fulfillment of the element of legality in statehood by freely exercising its right to self-determination arid declaring its independence, the Chechen Republic, by April J992 had already acquired all the means to run the State and to defend its independence: its own air force with two air bases, an army, a secret service, and its own constitution (12 March 1992).
The Federation Treaty of the Russian Federation of 31 March 1992
138. The above mentioned legal consequences of the collapse of the superstructure of the USSR and the resulting absolute sovereignty and independence rights of the republics under the RSFSR, enhanced the organs of the RSFSR to seek a new form of cooperation with a new regional super-structure.
139. On basis of negotiations a Federation Treaty for a new Russian Federation was adopted and signed on 31 March 1992 by all republics of the overthrown RSFSR, except the Chechen Republic, the Ingush Republic and the Tatarstan Republic. The Chechen Republic had already declared itself independent on 1 November 1991, and the Tatarstan Republic followed in January 1992.
140. As to the Ingush Republic, it was proclaimed in July 1991. After the Federation Treaty was concluded, a referendum in the Ingush Republic resulted in opting to remain part of the RF. It was instated as a Republic of the RF by a decision of the Supreme Soviet of the RF of 4 June 1992. The border lines of 1934 were accepted by the Chechen and the Ingush Republics through the intermediation of the Prime Minister of the RF, Gajdar.
141. The Federation Treaty itself provides for the validity of the position of the Chechen Republic not to have been party of the treaty, and not to have signed it. The Federation Treaty embodies, under its preamble, the principles of "pursuing the goal of the achievement and reinforcement of inter-ethnic agreement, trust, and mutual understanding", of "the right of national groups to self-determination", and of "striving for the qualitative renewal of federal relations on the basis of the voluntary distribution of powers". Accordingly it affirms, under Article VIII, the principle that the Sovereign Republics are free to sign the treaty, have the right to sign it, and are under no obligation whatsoever to sign it. This affirmation provides ample evidence that the older super-structure of the RSFSR was abandoned and implicitly declared terminated and void.
142. Considering the sufferings of the Chechenyans tinder the RSFSR and the USSR, their republic could not be expected to be party to this Federation Treaty, especially since its preamble includes a statement which those people know well to be insincere, untrue and false, and thus cannot accept it. The statement is:“with manifest respect for the history, traditions, culture, language, and national dignity of the peoples of the Russian federation".143. It might be argued that the treaty did not cover the question of membership in the Russian Federation, but, as its sub-title states, the delineation of spheres of jurisdiction and authority between federal government and the governments of the sovereign republics members of the federation. The treaty having carried the top title Federation Treaty, and having explicitly stated tile freedom of the republics to sign it or riot to sign it, is in fact concerning the terms of association or federation, on which basis the republics are entering into the new Russian Federation. Without freely signing it, no republic can be claimed to be a member of the federation. It is inconceivable how a republic be a member of the federation, if it did not "freely" sign that treaty or did not sign it at all. The core of the treaty is that it involves a surrender of a part of the sovereignty and independence of the republics signing it. In the absence of signing it or the absence of freely signing it, the republic or republics in question retain their full sovereignty and independence from the federation.
144. The appearance of the Russian Federation as a signatory to the Federation Treaty is therefore misleading, because tile new Russian Federation could not have existed before signing the treaty. From another angle, signing the treaty by the Russian Federation affirms its awareness and recognition of the exercise of self-determination by the Chechen Republic "not to be part in the treaty". The same applies to the Ingush Republic and to Tatarstan.
145. Again, for the sake of argument, had the Republic of Chechenya been a party to that treaty, its legal status would have been as follows:
145.1 It would have been recognized as a Sovereign Republic and a State with all powers as a matter of principle, except those delegated with its consent to the Federal bodies according to the treaty (Article III.1).
145.2 It would have had, jointly with the federal bodies, the power to conduct international relations (Article Ill.2).
145.3 It would have had the power to agree or not agree on the definition of the status of the federal natural resources (Article III.3).
145.4 It would have had the power to give or not give its consent to a declaration of a state of emergency within its territory (Article III.4).
145.5 It would have, jointly with federal bodies, jurisdictional sovereignty which cannot be changed unilaterally by one party (Article II.1).
146. The same form of organization as that of the former USSR can be detected. The new Russian Federation is also a regional United Nations, rather than a federation under domestic law. It is of the nature of a inure integrated regional international organization as the one the European Community is trying to establish.
147. Considering the insistence of the Republic of Chechenya on its declaration of independence, the question which would arise is whether a party to that Federation Treaty has the right to secede. The legal principle is that the right to free association gives the right to free dissociation. Compulsion to remain associated will be a negation and a violation of free association. The reason behind this is that the realities might become different or changes might take place so that dissociation becomes a necessity to safeguard, in this case, the national interest of a republic which had freely signed the Federation Treaty.
148. It follows that any action preventing secession will be an act of aggression against the people and the republic who decide to secede.
149. The procedure and the legal consequences of dissociation are other questions, not that dissociation be prevented by force.
150. Since a treaty is an international act which falls under international law, the application of the law of treaties is both inevitable and necessary.
151. The Vienna Convention of the Law of Treaties of 1969 affirms in its preamble that "disputes concerning treaties, like other international disputes, should be settled by peaceful mean, and in conformity with the principles of justice and international law”. Also in its preamble, it affirms that treaties should be in conformity with "the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all States, of noninterference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all".
152. Article 44.3 (c) implies that when the continued performance of a treaty is unjust, there is
ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty.
153. Considering these principles of the Treaty of Treaties and the genocidal aggression against a Republic which is not a member of the Federation Treaty of the RF, the manner of implementing that treaty and hence its validity raise serious objections.
The legal consequences of the extinction of the USSR on 8 December 1992
154. The imperial Union of Soviet Socialist Republics ceased to exist formally on 8 December 1992, which fact can only legally result in the freedom of the people and the Republic of Chechenya to re-assume their full sovereignty, territorial integrity and independence, without any obligation whatsoever to remain or to become part of any structure which existed compulsorily under the former imperial Union of Soviet Socialist Republics, or under the former imperial RSFSR which was an extension of imperial Czarist Russia.
The Republic of Chechenya and the RF constitution of 12 December 1993
155. Despite the aforementioned legal facts, and despite the fact that the constitution of the Russian Federation of 12 December 1993 is based on "the commonly recognized principles of equality and self-determination of the peoples" (preamble), it imposes upon the Chechen Republic the status of being a subject of the federation (Article 65), which is, in terms of law, untrue and false, and is thereby air aggression against the independent people and Republic of Chechenya. It is air involuntary annexation to the federation and an illegally forced subjection to its superstructure.
156. The inclusion of the Chechen Republic in the 1993 constitution of the RF is also in contradiction with its provision under Article 33 which states:"The referendum and free elections shall be the supreme direct manifestation of the power of the people".157. The people of the Chechen Republic had already declared their will through elections to be independent from the collapsed USSR and its RSFSR.
The legal qualification arid the legal effects of resorting
to aimed force against the independent Republic of Chechenya
158. It is well founded in fact and in law that the Chechen Republic regained again its independence by the collapse of the USSR and the RSFSR and by its self-determination not to enter into the newly formed Russian Federation.
159. The use of armed force by the Russian Federation against the independent Chechen Republic is an act of aggression which fills under the provisions of Chapter VII of the Charter of the United Nations.
160. This act of aggression manifests again the mania imperialis of the regime in Moscow, because even if the Republic of Chechenya would be part to the Russian Federation, the Federation Treaty of March 1992 states under Article VI that disputes between the federal government and government bodies of the republics "will be settled with the obligatory use of conciliation procedures in the manner stipulated in the Constitution and laws of the Russian Federation". The use of armed force against the Chechen Republic is contrary to that provision.
161. The use of armed force reveals that Moscow is aware of the sound legal grounds of the independence of the Chechen republic and that Moscow wants to crush that independence at all costs. An act beyond aggression.
162. The committed aggression does not only present a grave crime against the Chechen Republic and its people, but also against the RF itself and its constituent sovereign States.
163. No law of a civilized political entity permits, in the given circumstances, resorting to armed force against a people who expressed their will to be independent, The aggravating circumstances of the committed genocide crime are the following:
163.1 The opposition expressed continuously against the genocidal armed aggression.
163.2 The insistence of the Parliament on solving the question by peaceful negotiation.
163.3 The resignation of a number of army generals in protest to the ongoing genocide.
163.4 The denial of the RE treaty provision that disputes regarding publishing legal instruments or matters of joint jurisdiction will be settled by the Federal Constitutional Court. Even if the actual dispute which gave rise to the committing of genocide would be included under the jurisdiction of the Federal Constitutional Curt, that Court was suspended by Yeltsin in October 1993.
164. The legal effect vis-à-vis the sovereign States members of the RE is that they are threatened with the use of force against them if they exercise their right to secede from the federation. This threat means that their remaining in the federation is forced upon them, whatever the application of the Federation Treaty may be in reality. This "threat" and "forcing" present a violation of the Federation Treaty capable of considering it gravely violated and invalidated.
The more so, because this state of affairs presents a grave violation of a number of peremptory norms of modern international law, such as peaceful coexistence, settlement of disputes by peaceful means, the prohibition of war and of genocide, respect for and observance of human rights, etc... (compare Article 53 of the Vienna Convention on the Law of Treaties).
165. It follows that the sovereign States parties to the Federation Treaty have the right to repudiate it and to withdraw from it. Besides the legal basis mentioned above, the nature of that treaty gives them that right. And it could not have been intended by the parties to that treaty that they would not have the right to denunciate it and withdraw from it, even after such a grave and genocidal violation takes place (see Article 56 of the Vienna Convention on the Law of Treaties).
166. The total genocidal aggression of the federal government against the people and the Republic of Chechenya, is the gravest breach of the Federation Treaty. It could have not been intended by the parties to that treaty that such an aggression would be committed against a sovereign State, whether party to the treaty or otherwise. According to Article 60 of the Vienna Convention on the Law of Treaties, the parties to the treaty or the aggrieved party, are entitled to suspend the operation of the treaty or to terminate it in case of a material breach, which is, in this case, "the violation of a provision essential to the accomplishment of the object or purpose of the treaty". Any party is also entitled to suspend or terminate the treaty in case the breach of the treaty radical] changes the position of every party with respect to the further performance of its obligations under the treaty. The breach committed is the use of armed force and in a genocidal operation against a sovereign State because it used its freedom not to sign the Federation Treaty, which use of genocidal armed force has aggravated the economic crisis, with its effect on all the sovereign States members of the federation Moreover, it was not the purpose of the Federation Treaty that the federal government would abuse its authority to such an extent.
167. The ways in which the federal government is conducted presents a "fundamental change of circumstances" on basis of which the sovereign States consented to sign the Federation Treaty, which change causes a radical transformation in the extent of the obligations still to be performed under the treaty (Article 62 of the Vienna Convention on the Law of Treaties) In the case at hand, the sovereign States are facing new obligations to participate in and to carry out the burden of such aimed genocidal operations against other sovereign States members or non-members of the Federation Treaty.
168. The legal bases for renouncing the Federation Treaty do not mean that the sovereign States members of the federation are not under certain obligations in face of the said genocidal use of armed force by their federal government. We will deal with these obligations later on.
The legal effects of the recommission of genocide
against the people and Republic of Chechenya
169. There is unrefutable evidence of the acts which are being committed against the people and the independent Republic of Chechenya since 11 December 1994. Those acts present a continuous, intensive and indiscriminate criminal use of the army of Moscow, and constitute an ongoing crime of genocide Boris Yeltsin the head of the political entity in Moscow recognized himself on 18 January 1995 that genocide is being committed against the people of the Republic of Chechenya, and asserted that he himself is in control.
170. Those genocidal acts are continuing despite the resolution of the Parliament in Moscow to resort to peaceful negotiation, the opposition's declarations and stands, and the resignation of a number of army leaders and of the human rights commissioner of the RF.
171. Moscow under Boris Yeltsin is now encouraged in its genocidal operation against the independent people and the Republic of Chechenya by the approval and the intensification of genocide in other parts of the world in this era of genocide, with the collaboration of the Powers in the name of the United Nations, just as it (Moscow) was encouraged under Joseph Stalin to commit continued genocide against the same people at the beginning of this era of genocide which first witnessed genocide committed by the Nazi's and by dropping the atom bombs on Japan by the USA.
172. Even in case the Republic of Chechenya would have been a member in the Russian Federation, its declaration of independence, or the declaration of independence of any other member of the federation, could not be met with a total destructive genocidal aggression. When such an aggression takes place, as in the case of Chechenya, it is not only a grave violation of treaty relations, and thereby a de facto and de jure termination of the treaty, but is also a total violation of international law. Such an aggression can only result in the factual and legal dissociation of the sovereign State Party to the Federation Treaty and victim of such an aggression ' since a federation formed by consent cannot be maintained by force, let alone by total destructive genocidal aggression.
173. To conclude, in case Chechenya could be considered to have been member of the RF, the genocidal aggression of the RF against Chechenya results inevitably in the dissociation of that republic from the RE, and in regaining its full independence and sovereignty under international law.
174. Since Chechenya is not existing in a vacuum, and there is a modern international law which applies to relations between nations, and even to relations between States and their subjects, we shall deal with the international obligations and liabilities of the RF and of its constituent sovereign States, as well as of all other States. But before doing so, we shall introduce the question of obligation and liability in general, and under international law in particular.
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