Thawing a Frozen Conflict: Legal Aspects of the Separatist Crisis in Moldova: A Report from the Association of the Bar of the City of New York

This report is the product of a mission of the Committee on European Affairs of the New York City Bar to assess the international legal issues raised by the attempted secession of the so-called Transnistrian Moldovan Republic from the Republic of Moldova. The mission consisted of Barrington D. Parker, Jr., a United States Circuit Court Judge from the Second Circuit; Robert Abrams, a partner at Stroock & Stroock & Lavan LLP and former Attorney General of the State of New York; Elizabeth Defeis, Professor of Law and former Dean of Seton Hall University Law School; and Christopher J. Borgen, an Assistant Professor at St. John's University School of Law. It was led by Mark A. Meyer, a member of Herzfeld & Rubin, P.C., and the Chair of the Committee on European Affairs. Professor Borgen is the principal author of this report. Moldova is the poorest country in Europe and it is enmeshed in a seemingly intractable separatist conflict involving ethnic tensions, Russian troops, Soviet-era arms stockpiles, smuggling, money-laundering, and corruption. Bordering Romania and Ukraine, with a majority of ethnic Romanians, it is a country that has been largely overlooked by the West. This report examines the key legal issues of this frozen conflict and assesses the legal or quasi-legal arguments made by the Government of Moldova and the separatists. At issue is who should control Transnistria, a strip of land roughly the size of Rhode Island nestled between the Dniestr River and the border of Ukraine. Transnistria contains Moldova's key industrial infrastructure, power plants, and, importantly, a significant stockpile of Soviet-era arms. Since 1994, it has been under the effective control of a separatist regime that calls itself the Transnistrian Moldovan Republic (TMR). In preparing this report the mission not only met with U.S. Government specialists and members of the diplomatic community, but also traveled to Moldova (including Transnistria) and met with the key policy leaders in Moldova and in the breakaway region, including the President of Moldova and the leader of the Transnistrian separatists, as well as the senior advisers to both leaders. We believe the result is the first independent analysis of the legal issues involved in the Transnistrian crisis. The resulting report considers three main legal issues: (a) whether the TMR has a right under international law to autonomy or possibly sovereignty; (b) what the legal concerns are regarding the sale by the TMR leadership of property located in Transnistria to foreign (usually Russian) companies; and, (c) what role third-party States have in the ongoing conflict and, in particular, the international legal implications of Russian economic pressure and military presence in the TMR. We conclude (a) the TMR has not made a legally sufficient case that it has a right to external self-determination or secession and that its is best understood as a de facto regime; (b) in light of the rules governing de facto regimes and also the law of occupation, the TMR's so-called privatization program can leave investors with no confidence that these transactions would be enforceable if the TMR were reintegrated into Moldova; and (c) Russia's ongoing military assistance, economic support, and its effectively bargaining on behalf of the TMR using energy prices and other levers of power against Moldova leads to credible claims of state responsibility on the part of Russia for the continuing separatist crisis and its proximate results. Though not well-known, the Transnistrian crisis provides an optic by which other frozen conflicts, such as the Abkhazian separatist crisis in the Republic of Georgia, may be addressed.