In preparation of the Report, the Mission met with many people including, in Moldova, President Vladimir Voronin, Prime Minister Vasile Tarlev, Foreign Minister Andrei Stratan, Minister of Reintegration Vasilii Sova, Chairperson of the Supreme Court Valeria Sterbert, Chairperson of the Constitutional Court Victor Puscas, Justice Minister Victoria Iftodi, General Ion Ursu, Chief of the Information and Security Services, leaders of all of the Parliamentary factions, US Ambassador Heather Hodges, Russian Ambassador Nicolay Ryabov, Ukrainian Ambassador Petro Cealyi, Romanian Ambassador Filip Teodorescu, OSCE Ambassador William Hill, and farmers and local municipal and county leaders from the Dubasari area; and in Transnistria, with President Igor Nikolaevich Smirnov, Chairman of the Supreme Soviet Grigoriy Stepanovich Marakutsa, Foreign Minister Valeriy Anatolevich Litskai, Minister of Justice Viktor Balala, and Chairperson of the Constitutional Court Vladimir Grigoriev.

The new study concludes that Russia’s activities in Transnistria – including the intervention of its 14th Army on behalf of the separatists, the ongoing military assistance to the TMR, the economic support of the TMR, and effectively bargaining on behalf of the TMR using energy and other levers of power against Moldova – lead to credible claims of state responsibility on the part of Russia for the continuing separatist crisis and its proximate results, and violates fundamental principles of international law. The New York City Bar report also maintains that the TMR’s claims for sovereignty are without merit under international law, and its sales of Moldovan state assets to mostly Russian businessmen constitute a conversion of property that is exceedingly difficult to justify under international law and in which purchasers consequently act at their own risk.

The New York City Bar report concludes that Russia has illegally propped up the viability of the TMR and made reintegration virtually impossible. The report determined that the Russians also provide materiel, expertise, and other support to the TMR on an ongoing basis. Similarly, the Soviet-era arms stockpile under control of the 14th Army has been used to support the TMR, both directly and as a source of revenue, through joint Russian-TMR sales of army materiel on the world market. Moldova wants the immediate removal of the weapons stockpiles. Russia has so far refused to remove the stockpiles (or the troops).

Besides the use of the army to either hamper the Moldovans or assist the TMR, the City Bar found that Russia has also used economic pressure and economic assistance as a carrot and stick. Economic pressure is generally not barred by international law. However, such pressure on a state, or assistance to separatists, may make the third-party state liable under the law of state responsibility if its pressure would either frustrate the pressured state’s (in this case Moldova) sovereign privileges or would breach one of the third-party’s pre-existing commitments to the state being coerced.

In considering the present situation, the report found that there are four areas of particular concern: (a) the use of energy prices as a carrot or a stick; (b) the increased use of tariff barriers against Moldovan goods; (c) economic assistance to the TMR; and (d) the shared economic interests of Russian and Transnistrian elites. Taken as a whole, the City Bar concludes that there is a significant intervention on behalf of the TMR by Russia.

No Right to Autonomy.
Under international law there is no “right” to fiscal or governmental autonomy within a state. While the TMR leadership may make political arguments that one may or may not find persuasive, the report did not find a legal basis for a claim of autonomy.  The two strongest quasi-legal arguments in favor of autonomy are: (a) that due to the denunciation by the USSR of the Molotov-Ribbentrop Pact, which had established the modern boundaries of Moldova,  Transnistria should revert to an autonomous state; and, (b) self-determination as a basis for autonomy.  The denunciation argument is a chimera.  Simply denouncing a treaty does not revert the political system to the status quo ante; it merely means that the treaty will not be in force going forward.  This is especially true in treaties that include boundary delimitation provisions. The second argument made by the Transnistrians, linking autonomy with the right of self-determination, opens up numerous complex issues in public international law. One thing is clear: rather than a right to autonomy—or even a specific set of characteristics that define this term—international law in the last century has focused on the elucidation of the norm of self-determination.  Self-determination, and its relation to autonomy and secession, is discussed at greater length below. In sum, the report finds that international law has little to say as to any supposed “right” to autonomy, and that grants of “autonomy” are largely issues of domestic law. In the Transnistrian case, the Government of Moldova has proposed various plans that are effectively grants of varying levels of policymaking and regulatory autonomy; all have been rejected by the TMR.  The report concludes that, based on their words and deeds, the TMR’s leaders seem less interested in autonomy than in full sovereignty.

Self-Determination, Sovereignty, and Secession.
The norm of self-determination is not a general right of secession. It is the right of a people to decide on their culture, language, and government. It has evolved into the concepts of “internal self-determination,” the protection of minority rights within a state, and “external self-determination,” secession from a state. While self-determination is an internationally recognized principle, secession is considered a domestic issue that each state must assess itself. Influential decisions and reports concerning self-determination, such as the report concerning the status of the Aaland Islands in 1921 and the Badinter Commission opinions concerning the former Yugoslavia in the 1990’s, and other examples of state practice have been consistent in the view that a successful claim for self-determination must at least show that: (a) the secessionists are a “people;” (b) the state from which they are seceding seriously violates their human rights; and (c) there are no other effective remedies under either domestic law or international law. None of these prongs are satisfied in the case of Transnistria, with the possible exception of (a). The term “people” has been generally used in recent state practice to refer to an ethnic group, or a “nation” in the classic, ethnographic, sense of the word. However there are some, such as the TMR’s leadership, who suggest the term should mean something else, perhaps a group with common goals and norms. While the norm of self-determination may evolve such that a people may be more readily identified as merely a like-minded group, we do not find that current state practice supports such a proposition. Regardless, deciding on a single definition of the term “people” is not dispositive in this case, as none of the other requirements for external self-determination are met. Concerning the second prong, the existence of serious violations of human rights, the argument of the Transnistrians can be organized into three main groupings: (a) violations of linguistic, cultural, and political rights; (b) the brutality of the 1992 War; and (c) the denial of economic rights. Taking into account the significant changes in Moldova since 1992, none of these claims is convincing today.

The actual history of Moldova since the end of the 1992 War shows that the country has improved its respect of minority rights. In contrast, the TMR has had a poor human rights record including a lack of due process, persecution of religious minorities, and retaliation against political dissenters. The 1992 War itself caused 1,000 deaths, but we found that. in light of state practice, the events of the 1992 War in and of themselves do not make a persuasive claim of secession as a legal right. If they did, the world would be rife with secessionist conflicts. Similarly, the economic rights claim, which is essentially about allocation of tax revenues, does not lead to a legal right to dismember a state.  This argument is really about policy, not the form of a polity.  Finally, the report noted that there is a general sense among commentators, opinions, and decisions, that the human rights violations that are cited in support of a claim of secession must be ongoing violations. Although Moldova still has many possible pitfalls on its road to becoming a fully modern democratic state, it is clear that it is nonetheless traveling the road in the right direction, albeit with some fits and starts. Thus, the second prong—ongoing serious violations of human rights—is not met. The third prong asks whether there are any other options available besides secession. This conflict has been frozen not so much because there are no other options under domestic and international law besides secession, but because the separatists have chosen to make the conflict seem intractable by repeatedly refusing any options short of effective sovereignty for the TMR. For example, while Moldova has sought to decrease ethnic tensions, the TMR has attempted to exacerbate them and subsequently claim that separation is necessary in order to avoid ethnic conflict and possibly genocide.  Such “gaming the system” is not persuasive. The report thus concludes that there is no solid basis for a claim of secession under external self-determination. The most basic requirements for a legal claim are not met.

Russia
Russia, not least because it maintains troops in Transnistria, is not only a guarantor, but a key player in the conflict.  The City Bar considered four main issues:  (a) the activities of the Russian Army and other organs of the Russian Federation in Transnistria; (b) economic pressure by the Russian Federation on Moldova; (c) ties between the TMR leadership and Russian leadership; and (d) the general diplomatic stance of the Russian Federation. The role of the Russian Army can be split into two phases: assistance during the 1992 War and ongoing activities, including maintenance of arms stockpiles in Transnistria. The Russian 14^th Army played a decisive role in the 1992 War by intervening in the fighting on behalf of the separatists.  Despite treaty promises to demobilize and repeated Moldovan requests that Russia remove its troops from Transnistria, the troops remain. Consequently, they prop up the viability of the TMR and make reintegration more difficult. They also provide materiel, expertise, and other support to the TMR on an ongoing basis. Similarly, the Soviet-era arms stockpile under control of the 14^th Army has been used to support the TMR both directly and as a source of revenue through joint Russian-TMR sales of army materiel on the world market.   Moldova thus wants the immediate removal of the weapons stockpiles. Russia has so far refused to remove the stockpiles (or the troops) until there is a comprehensive political settlement and has also argued that the Transnistrians will not let them remove the arms.

Besides the use of the army to either hamper the Moldovans or assist the TMR, the second main issue is that Russia has also used economic pressure and economic assistance as a carrot and stick. Economic pressure is generally not barred by international law. However, such pressure on a state or assistance to separatists may make the third-party state liable under the law of state responsibility if its pressure would either frustrate Moldova’s sovereign privileges or would breach one of the third-party state’s pre-existing commitments to Moldova.  In considering the present situation, there are four areas of particular interest: (a) the use of energy prices as a carrot or a stick; (b) the increased use of tariff barriers against Moldovan goods; (c) economic assistance to the TMR; and (d) the shared economic interests of Russian and Transnistrian elites. Taken as a whole, there is a significant intervention on behalf of the TMR. On the third issue, the ties between TMR and Russian leadership, there is ample circumstantial evidence. Smirnov, Minister of Justice Balala, and Chief of Internal Security Vladimir Antufeyev all arrived in Moldova at the start or since the start of the separatist crisis.  The TMR’s ruling elite is largely Russian and, to a lesser extent, Ukrainian, and have Russian citizenship. They have been granted Russian nationality.  Certain members came to the TMR from senior positions in the Russian government, particularly the Russian parliament (the “Duma”) and the Russian Army. Finally, the various activities described above—the economic pressure, the military assistance to the TMR, the energy politics—need to be understood in light of the constant Russian rhetoric in favor of the TMR and critical of Moldova. While the report does not contend that any single activity described could lead to state responsibility (although the troop situation may rise to that level) the New York City Bar believes that these acts seen as a whole, combined with constant Russian statements supporting the TMR and criticizing Moldovan efforts at reintegration, form a compelling picture of inappropriate intervention by Russia into the domestic affairs of Moldova.