The Threats of Passportation for International Peace

March 22, 2010

The Georgian conflict of 2008 poses two interesting questions for international law. First, we may ask whether a passportation policy such as that adopted by the Russian government constitutes a threat to international peace and security, and second whether it constitutes an action likely to trigger the right to anticipatory or preemptive self defense under article 51 of the Charter. Both questions need to be answered affirmatively, but carefully.

The passportation policy adopted by the Russian federation constituted a threat to the international peace. In supporting this conclusion, I find as given that the Russian Federation deliberately, knowingly and with premeditation initiated the passportation policy as a means to enhance its influence over the region, and particularly, over Georgian soil; that policy was intended to reduce Georgian power over the territory populated by the “new Russian citizens”; and, such a policy aimed at creating a pretext for Russian intervention in the region, under the argument of its right to protect its own citizens “beyond its borders”.  The evident intentions of the Russian government, on the other side, very likely were going to derive in a strong response of the Georgian government against the Russian policy, thus escalating the tension in the region.

The rationale behind my first answer is built over three main aspects. First, the deliberate passportation policy did not derive from a general immigration or naturalization policy of the Russian Federation, but rather responded to the Russian interest of creating a legal -or at least political- justification for Russian military intervention in the region. Second, such a policy biased citizens located in the conflict zones in favor of separatist movements under the shielding wing of Russia, therefore undermining Georgia’s sovereignty. Third, the Russian policy broke a delicate equilibrium between the parties in conflict, thus swelling it and involving other geopolitical interested parties in the conflict, such as NATO and the US.

The rationale underneath my second answer is built upon three considerations. First, a massive passportation policy may very well constitute a preparatory action pursuant to an armed attack over foreign soil. This assertion, however, is not as clear-cut as we would like it to be. It is very difficult to draw the line that divides the cases in which it does constitute a preparatory action and those in which it does not. This is even harder to value, considering the fact that passportation is not a very common “tactic” or “military” strategy among potential attackers. Nevertheless, the “commonness” or “rarity” of the preparatory action does not seem to be a strong factor that may clarify if an action directed to an act of aggression is under way or not.

Second, a massive passportation policy may detach citizens originally loyal to another country, in favor of the country adopting it. Such a policy undermines national character, national discipline, and respect for one owns institutions, and diminishes the moral resolve with which the nationals of the second country are willing to defend their flag and interests. Such passportation policy is thus a very important and unfortunate deterrent of firm actions pursuant to the conservation of national sovereignty that would contribute to stability in the region.

Third, a massive passportation policy may trigger a sudden and uncontrollable flow of citizens from one state to the other, thus undermining the number and quality of potential combatants in the conflict. This implies a direct threat to the security of the victim-country of this strategic, silent, and overt act, aimed at the vaporization of national identity nexus between its nationals and its public authorities and army.

It all these three elements are (were) present at the same time, Georgia, or any other country put in its position, when the Russian Federation implemented its passportation policy, would be entitled to act in proportional self defense, if, and only if, such immediate action is (were) absolutely necessary, and there is (were) not enough time to go to the Security Council to obtain approval of use of military force.