Proposal of CSCE Mission to Georgia

A CONSTITUTIONAL STATUS for South Ossetia

I.

The current paper represents a final draft proposal of the Mission on a status of the South Ossetia based on points of view laid down in the course of discussions held in Tbilisi and Tskinvali, as well as in our findings.

The Mission would like to thank all political figures, lawyers and others with whom we happened to deal with in Tbilisi and Tskinvali for their proposals, contributions and critical remarks.

As a result of the conducted discussions in Tbilisi and Tskinvali the Mission proposes to introduce a new Constitutional status for the South Ossetia based on the agreements between both sides to the conflict, which should be submitted for storage to the OSCE Secretariat in Vienna. It shall be implemented through its fixation in the Constitution of Georgia or in one of Constitutional acts(irrespective of the general structure of territorial arrangement of Georgia)

South Ossetia will be an integral part of Georgia but enjoy self-rule. For the distribution of power between the state-wide authorities and South Ossetia, three criteria should be observed.

- preservation of Georgia’s territorial integrity,

- maximum self-rule for South Ossetia,

- promotion of mutual trust.

The status shall not anticipate a future constitution for Georgia as a whole: it must fit into any territorial structure that Georgia may want to choose, be it Unitarian with a special status agreed only for some parts of the country or strictly federal. In the latter case, the status proposal could possibly become a model for the distribution of power between the state-wide authorities and regional entities. However, even then South Ossetia might enjoy special rights (‘asymmetrical federalism’).

The Mission proposes to distinguish between three categories of jurisdiction, embracing legislative, executive and judiciary power: exclusive state-wide jurisdiction, exclusive South Ossetian jurisdiction and mixed jurisdiction.

Exclusive a state-wide jurisdiction central organs should include: citizenship, state emblems and anthem (not including South Ossetian ones), foreign relations, defense (with provisions taking into account South Ossetia’s security interests), monetary policy (it should be noted that South Ossetia would participated in legislation pertaining to state-wide jurisdiction).

Exclusive South Ossetian jurisdiction should include: self-organization within the agreed constitutional framework (South Ossetian constitution, administrative structures, organs, budget), South Ossetia’s name and emblems (to be used side by side with state-wide ones), cultural matters, social security and trade.

Most jurisdiction would be mixed:

- language (with Tbilisi determining the state-wide official language and South Ossetia determining any additional official language),

- finance (one tax administration with a South Ossetian branch raising both state-wide and South Ossetian taxes),

- economy (basic state-wide legislation, macro-economy determined for the entire

Country, but below that economy self-rule, with decisions taken at the South Ossetian and local level),

- border and customs authorities (a South Ossetian branch within the state-wide Administration),

- police ( a uniformed civilian South Ossetian police, including both Ossetians and Georgians, to assure law and order, but a state-wide criminal police),

- judiciary (a South Ossetian judicial branch headed by South Ossetian supreme court but subordinated to the Georgian supreme court and any constitutional court in Georgia Chooses to have one),

- education and healthcare.

The Mission proposes to include a number of ‘checks and balances’ into the future distribution of power between Tbilisi and South Ossetia, such as the need for co-operation, in the appointment of some key officials and special provisions in the military field. Since such safeguards may prove to become partly or wholly superfluous later, the Mission suggests a five-yearly bilateral revision.

Finding a constitutional status for South Ossetia will not solve every problem. In addition, adequate representation of South Ossetia in the Georgian parliament and some other key bodies (such as the top courts and some ministries) in Tbilisi must be assured. Ethnic and linguistic minorities, including Ossetians in Georgia proper and Georgians in South Ossetia, within the framework of common and very wide constitutional guarantees will have to be protected throughout the country. Guarantees must be enshrined in the future constitutions of Georgia and South Ossetia. Furthermore, the Mission suggests to set up a national council for the protection of ethic rights, including representatives of all ethnic groups living Georgia.

II.

1. Inviolability of Borders

The South Ossetian conflict- one of few conflicts emerged in Caucasus, in general, and in Georgia, in particular. It is taking away lives of people, causes material damage, disrupts centuries-old traditions of friendship between Georgians Ossetians, undermines the unity of Georgia, arrests its economic development and creates instability in this key region at the crossroad between Europe and Asia.

The international community is keenly interested in settlement of all the conflicts in the Caucasus and thereby in strengthening of stability in an eastern part of Europe. Present borders throughout Europe represent a result of centuries-old disputes and wars. Stability reigning in many parts of Europe to great extent is explained by a fact that in our time territorial changes ceased to be for Europeans major problem of international politics. The emphasised interest toward borders was replaced by efforts aimed at strengthening trans-border international cooperation. Inviolability of border is one of the fundamental principles of OSCE. Majority of observers agree with a point of view (and it is proved by international practice) that from the point of view of common sense, realisation of the right to self-determination should not assume “external” direction and “extreme” forms, that is, it should not envisage unilateral change of inter-state borders.

In their conversations with the representatives of the Mission representatives of South Ossetia frequently would talk about their right to self determination, concluding that they had a right to create an independent state, or to unification with the North Ossetia within the framework of the Russian Federation. The unification of North Ossetia and South Ossetia would have been permissible, if it were about two independent states and their own state borders. However, since they are part the Russian Federation and Georgia respectively, any declaration of independence and any attempt aimed at unification would touch upon a question of borders between these two states. Therefore, such a decision may be materialised provided there is consent of these two states. For the sake of securing stability of the borders, both Georgia and Russia (like the North Ossetia, as well) insist on maintaining the existing borders.

Many people in the South Ossetia refuse to acknowledge these facts. They have formed the impression that the international community, for some reason, is obliged to recognise South Ossetia’s claim for creating its own state. The Mission has been doing its utmost to explain to representatives of South Ossetia that they hopes were groundless. The right to international recognition is absent. Though South Ossetia’s desire to protect its interest is understandable, it should not underestimate the legal interest of the international community in stability of the borders. In the history of Europe there were cases when more powerful nations than Ossetian nation would try to impose their own will upon their neighbours against their free will. All these attempts ended up in a failure.

The Mission is absolutely convinced that the future of this region located in the key point between the East and the West, the North and the South, is linked to the free and democratic Georgia, and that it should become a part of a region with open borders, where people would live side by side with neighbouring countries and nations.

2. The Right to self-determination

If change of borders is not a possibility, the international community provides for South Ossetia’s residents other, “internal” method of realization of the right to self-determination. After one year and half of negotiations with both sides to the South Ossetian conflict the Mission came to a unambiguous conclusion that a precondition for a long-term political reconciliation within the framework of unified Georgia is an elaboration of constitutional status for the South Ossetia based on guarantying the right of Ossetian population to internal self-determination with granting it substantial rights and solid guarantees.

a) Many people in Georgia would argue that the South Ossetia has no right on such an internal self-determination due to a number of reasons.

- They state that the South Ossetia (Georgians refer to it as “Samachablo”) is located on the territory historically belonged to Georgia and therefore, is no more than a part of Shida Kartly province. In addition, the ethnic composition of the South Ossetia has changed in recent years due to inflow of ethnic Ossetians, the process encouraged by Russians and Soviet authorities since the middle of 19^th century. They believe that the true homeland of Ossetians is the North Ossetia.

- Moreover, Georgians argue that the large portion of Georgian Ossetians live not in the South Ossetia proper, but in other parts of Georgia. So, conclusion is drawn that it was wrong to introduce for the South Ossetia regime different from other territories populated by ethnic Ossetians.

- Many Georgians are afraid that other ethnic minorities (first of all Armenians and Azerbaijanis), having regions of Georgia compactly populate by these ethnic minorities, might demand to grant them relevant territorial status, if South Ossetia succeeds in that.

- Those who voted for elimination of special rights of the South Ossetia in 1922, considered that action in the context of general process of de-Sovitisation of Georgia.

- Some Georgians consider granting the status of separate territory to the South Ossetia as a first step toward its separation.

- In Georgia they would indicate, and quite correctly, that the Georgian population remaining in the South Ossetia have been subjected to persecution on the part of Ossetians. They would raise an issue how to protect the lives and property of Georgians living in the South Ossetia.

b) The first argument, namely one related to legitimacy of existence of South Ossetia, from a historical point of view is unconvincing. The Georgian historians do admit to the fact that Iranian-language Alans (referred to in Georgian historical sources as “Ovsi” or “Osi”) began emigrating from the North Caucasus already in the 15^th century, though it also the truth that their inflow had substantially intensified in the 19^th and 20^th centuries. It is a fact of life that Ossetians had lived in South Ossetia for many generations and have the equal rights with Georgians to live there in the future. Facts of massive migration of population in other parts of Europe in later historical period is also a fact. However, not a single individual with common sense would question the results of that process. Georgians should make a decision for themselves whether they would like to be a part of that Europe or not. Having spent a year and half in Georgia, the Mission has come to a firm conclusion, that is exactly the majority of population of Georgia is aspiring for.

Some would argue that South Ossetians should not be granted a special constitutional status, since the majority of Georgian Ossetians reside outside it and since ethnic Armenians and Azerbaijanis may put forward the same demands, as Ossetians do. It could not be denied that in accordance with the 1989 census conducted in South Ossetia, there were only 65 000 Ossetians residing there, while around 100 000 Ossetians lived in other regions of Georgia. It is also the truth, that there are regions in Georgia where ethnic Armenians and Azerbaijanis are settled in a compact way. However, the South Ossetia (like Abkhazia and Adjara) had a status of separate territories, unlike other regions where ethnic minorities lived. There where such a status already existed, it is difficult to eliminate it. Rights of other ethnic minorities might be guaranteed nation-wide within the framework of the Constitution.

In addition, the Mission does not share those apprehensions, as if acquiring a territorial status would amount to making a first step towards separation. On the contrary, abolition of the South Ossetia’s status of separate territory in 1990 had intensified the separatist trends. The further opposition to restoration of a territorial status will thwart all the hopes for restoration of unity of Georgia. In this case, such a territorial status will be not a stimulus for separatism, but a necessary precondition for Georgia’s unity.

The Mission is underlining the importance of protection of rights of all ethnic minorities. No doubt, Georgian population in the South Ossetia is a “minority within minority”. Any status should guarantee protection of their rights. Criterion of South Ossetians commitment to the principles of the rule of law and democracy is their actions aimed at protection of human rights of all citizens irrespective of their ethnicity.

c) In the course of elaboration of any future status, events that took place during the 1991-1992 armed conflict should be taken into account. All the information obtained by the Mission is indicative of extreme brutality demonstrated by both sides and that fact had caused deep indignation and established a situation of a mutual mistrust both Ossetians and Georgians residing in the South Ossetia. Taking into account the agony suffered by both parties to the conflict, a would be solution should be a balanced one to the maximum possible extent.

In General, Georgians and Ossetians had different perceptions of the armed conflict. Too many Georgians taking part in the conflict believed that it was a high time to change the demographic composition of South Ossetia and “correct” the history. Shelling Tskinvali was a brutal manifestation and culmination of a policy directed at expatriation and elimination of Ossetians. Many people in Tbilisi, event those who stand ready to reach a compromise, tend to underestimate the trauma suffered by Ossetians as a result of the siege of Tskinvali. In the course of many months Ossetians in Tskinvali and its surroundings had been facing the fatal threat to their very existence. Therefore, the Georgian side will have to demonstrate to Ossetians that they have a future in a Georgian State.

III.

1. Distribution of power

The Mission suggests to set up, by way of an agreement between the two sides to the conflict acknowledged by an international conference and deposited with the CSCE Secretariat in Vienna. This agreement should envisage self-governance on this territory within Georgian state: It should be materialized through enshrining it in the Constitution or in a Constitutional Act of Georgia, which would provide the relevant guarantees.

Under this proposal, South Ossetia should have its own legislature, executive and judiciary. The inhabitants of South Ossetia will not only participate in the elections of the Georgian parliament but also elect their South Ossetian parliament. The jurisdiction to legislate for them, to try and to govern them will be divided up between South Ossetia and state-wide authorities. For the distribution of power, three partly conflicting criteria must be reconciled:

- the need for one single economic, social and legal space,

- maximum self-rule for South Ossetia,

- the promotion of mutual trust, given the background of division and armed conflict.

Against the background of solutions found in other parts of Europe and in reference to the particular situation of Georgia, including South Ossetia, the Mission proposes to distinguish between three categories of jurisdiction, embracing legislative, executive and judiciary power: exclusive jurisdiction of the state-wide authorities, exclusive South Ossetian jurisdiction and mixed jurisdiction.

a. Exclusive state-wide jurisdiction

I. There should only be one single (that is Georgian) citizenship.

II. The Georgian state emblems and anthem will be based on the decision of the Georgian parliament, the use of the state emblems and the state anthem throughout the country will be decreed by the state-wide authorities.

III. Foreign relations should fall within the exclusive competence of state-wide authorities. Foreign embassies will continue to be located exclusively in the capital, consular missions accredited with Georgian Ministry of Foreign Affairs may be opened in Tskhinvali. Only Georgia as such will have the right to entertain diplomatic and consular relations with other states.South Ossetia, as other entities of Georgia, will have the right to foster international contacts other than diplomatic or consular, namely in the economic and cultural fields.It will have treaty-making power (as in the case of Cantons in Switzerland and Lands in Germany) for all matters covered by its own jurisdiction, subject to conformity with the state construction and agreement with state-wide organs. It will be able to foster links with North Ossetia and other territorial entities. It will have the right to entertain an office in Vladikavkas and to host a North Ossetian office in Tskhinvali.

IV. Defense will have fall within state jurisdiction. There is no room for two or more armies. This will create a problem of confidence in South Ossetia, which will have to give up its men presently under arms. Therefore, the following confidence-building clauses could be built in:

- South Ossetia should, at least transitionally, be declared a protected demilitarized Zone. Any South Ossetian armed units should be disbanded. No Georgian army units should be stationed in South Ossetia. Inhabitants of South Ossetia would be exempted from universal conscription (but none would be precluded from enlisting as volunteers). Military security in South Ossetia would be assured by peace-keeping forces to be mutually agreed and placed under international control.

- Depending on progress in the reconciliation process between Ossetians and Georgians, one must at a later stage, consider the peace-keeping forces’ withdrawal. In that case, one could envisage two alternatives.

- South Ossetia could remain demilitarized. No inhabitants of South Ossetia would be called up to the Georgian army.

- New units exclusively recruited from inhabitants of South Ossetia (both Ossetians and Georgians) could become an integral part of Georgian army. They would be stationed in South Ossetia but be integrated into the state-wide command structure

Their commanders would be appointed by the Georgian minister of defense with the consent of South Ossetian executive or parliament. The permanent stationing of other units in South Ossetia would be subject to the consent of the South Ossetian executive or Parliament. Any military exercise in South Ossetia would be previously agreed with the South Ossetian executive authorities.

V. The state-wide authorities will run Georgia's monetary policy. They will decide which currency Georgia should have. Money will be exclusively issued by the national bank of Georgia. The bank, which should be autonomous, will be the guardian of financial stability. Economic matters other than monetary ones will fall within mixed jurisdiction (see III 1 c III).

b. Exclusive South Ossetian jurisdiction

I. South Ossetia should, within the framework of a future agreement and the Georgian constitution, have the exclusive right to define its political organs and structures. It should, within the same framework, have the right to adopt a constitution of its own, regulating the political, economic and legal structures of South Ossetia. The constitution, laws and regulations of South Ossetia must not contradict the Georgian constitution, provided that the Constitution of Georgia enshrines the relevant provisions regarding regional autonomy and protection of human rights. South Ossetia authorities should be required to comply with and implement Georgian law not inconsistent with the self-rule arrangement. The authorities both in Tbilisi and Tskhinvali should be obliged to respect each other's governmental acts.

II. South Ossetia should have the right to choose its own name and emblems (although the Mission would recommend consultation with Tbilisi on this sensitive matter). The use of the South Ossetian emblems side by side with the state-wide ones will be decreed by the South Ossetian authorities.

III. Cultural matters would clearly fall within South Ossetian jurisdiction.

c. Mixed jurisdiction

I. The state-wide authorities will have the right to determine the state-wide official language or languages. South Ossetia will have the right to designate, in addition to the state-wide official language, any other official language for its territory.

II. The 'power of the purse' lies at the centre of any self-rule worthy of that name. South Ossetia will therefore have to have its own budget, worked out by the South Ossetian executive power and passed by its parliament.

The question is how this budget will be financed and how South Ossetia will contribute to the state-wide budget. there are, in principle, three models:

- Taxes are exclusively levied by the state-wide government. The South Ossetian budget is thus exclusively financed by direct transfers from the state-wide government. Possible advantages: economy of operation, high degree of public-finance integration. Possible disadvantages: South Ossetian distrust, high South Ossetian dependence.

- Taxes are exclusively levied by the South Ossetian financial administration. South Ossetia can thus independently finance its own budget, which may be considered an advantage. Depending on the level of public revenue in South Ossetia, additional contributions will have to be transferred by or to Tbilisi. Possible disadvantages: state-wide distrust, high state-wide dependence.

- Unitary nation-wide tax agency with a branch in the South Ossetia, head of which might be appointed by a Minister of Finance of Georgia with the consent of the executive Authorities or the Parliament of the South Ossetia. That branch agency might levy nationwide taxes, as well as taxes determined by the Authorities of South Ossetia.

- Different taxes are collected both by a state-wide and a South Ossetian financial administration. Advantage: both the state-wide authorities and South Ossetia can finance their budget independently. Disadvantages: costs, over-administration, possibly overtaxing.

The Mission thinks that the last model is the most promising one, since it envisages both nation-wide tax system, as well as tax system for South Ossetia’s autonomy. However, in order to prevent unnecessary taxation, it is necessary to provide for adequate guarantees.

III.. Given the geographic and demographic dimensions of the country, Georgia should be one single economic and social space, notwithstanding the possibility to set up special economic zones. The Georgian parliament should therefore have the exclusive jurisdiction to legislate on the fundamentals of economic and social life. There should be single civil, commercial and criminal codes for the entire country. In other areas the state-wide authorities should retain sufficient legislative and executive control to assure protection of national interests (e.g. environment, industry, transport, communication, energy, social services). The South Ossetian parliament should have the jurisdiction to legislate on regionally significant aspects of economic life, such as the exploitation of natural resources, local industries, local transport, real estate, tourism etc.

State-wide authorities should not directly administer the economy in South Ossetia. Within a large framework, South Ossetia should in principle be left to conduct its economic affairs as independently as possible. It must have the right to engage directly in international trade and other forms of economic co-operation.

IV. Any border regime with regard to North Ossetia must take into account the legitimate interest of Georgia to control its external borders and the legitimate interest of South Ossetia to cultivate its traditionally close ties with North Ossetia. To this end, mission proposes to set up South Ossetian branches within the Georgian border police and customs administration. These branches should be recruited among the inhabitants of South Ossetia according to its ethnic composition. Their heads shall be appointed by the respective ministers in Tbilisi with the consent of the South Ossetian authorities.

It goes without saying that there should not be restrictions on travel between South Ossetia and Georgia proper (e.g. border police, check points etc.)or any other barriers on the part of Georgia with respect of travel and trade between the Northern Ossetia and South Ossetia.

V. To enhance mutual trust, the unformed police in South Ossetia should be organized on a South Ossetian basis. The South Ossetian police branch should consist of local units recruited according to the local ethnic composition. The police commander for South Ossetia would be appointed by the South Ossetian authorities with the consent of the Georgian minister of the interior.

To increase the effectiveness of the fight against crime, the criminal investigation police should be organized on a state-wide basis. The head of the criminal investigation police branch in South Ossetia could be appointed by the Georgian minister of the interior with the consent of the South Ossetian executive or parliament.

VI. In the judiciary, the advantages of unity must be weighed against the need for South Ossetian self-rule. The judicial system will in principle have to be of one mould in order to assure the existence of one legal space. On the other hand, South Ossetian laws must in principle be applied by South Ossetian courts. A South Ossetian supreme court will have to interpret and enforce the future South Ossetian constitution. The Georgian supreme court (or any future constitutional court) should be able to assure conformity with the Georgian constitution. The Mission suggests to form a mixed (i.e. with South Ossetian participation) chamber to prepare such decision. It might be appropriate to establish an international role in appointing judges.

The Mission proposes to set up a South Ossetian branch of the Georgia judiciary headed by a South Ossetian supreme court. The South Ossetian supreme court should apply South Ossetian law and serve as a court of appeal on state-wide law. One of its chambers would interpret the South Ossetian constitution in the last resort. All other decision would be subject to appeal to the Georgian supreme court (or to a future constitutional court). Below the South Ossetian supreme court, the court structure would be the same as in the rest of Georgia.

Given their key role in safeguarding South Ossetian rights, the judges of the South Ossetian supreme court should be appointed by the Georgian minister of justice with court in South Ossetian could be appointed be the South Ossetian authorities with the consent of the Georgian minister of Justice.

V. The Mission’s initial idea to vest the South Ossetian authorities with jurisdiction for Ossetian and other school while Georgian school would be run by the ministry of education in Tbilisi has met with unanimous criticism. The Mission bows to the plausible argument that an incentive should be created for both sides to co-operate on education. In this light, a single school system falling within mixed jurisdiction seems indeed preferable, provided it can safeguard the quality of teaching in all language required.

2. Concluding remarks

a) Everywhere in this text the South Ossetia is referred to as “South Ossetia”. Such a title, due to a number of reasons, causes negative reaction among many Georgians. However, the mission uses that title due to the simple fact that many generations in the former Soviet Union,

Миссия пришла к выводу, что вопрос о названии будет одним из наиболее острых вопросов в ходе будущих переговоров. Поэтому она настоятельно предлагает отказаться от немедленного рассмотрения этого вопроса и включить его в будущее общее компромиссное решение. Миссия рекомендовала бы грузинской стороне оставить окончательный выбор за южноосетинцами. При этом она также рекомендует южноосетинцам провести с грузинами тщательные консультации по этому вопросу. На случай отсутствия консенсуса, миссия хотела бы привести интересное предложение, сделанное одним из представителей грузинской стороны в свете практики, принятой в отношении наименования «Альто Адидже/Зюдтироль», - дать различные названия на грузинском и осетинском языках.

b) One more bone of contention, which many Georgians and Ossetians seem to find of utmost importance is the question whether South Ossetia should in the future be referred to as a 'republic' or as something else (state, region oblast, kray, zemlya etc.). These words continue to be understood by almost everybody with their traditional Soviet connotation. During Soviet times, South Ossetia enjoyed the 'administrative' state of an 'autonomous region' (oblast) within the Georgian Soviet Socialist Republic, whereas Abkhazia and Adjaria boasted the 'political' status of 'autonomous republic'. As a reaction to Georgia's claim to independence from the Soviet Union, South Ossetia declared its independence from Georgia and gave itself the attribute 'republic'.

The South Ossetian claim to statehood not been recognized by the international community. The question arises whether South Ossetia could in the future continue to call itself “republic” as a territorial entity within Georgia.

For the mission, an adequate and just distribution of power between the state-wide authorities and South Ossetia is of overriding importance. As long as the future status of South Ossetia lays the grounds for peaceful coexistence, the mission considers it futile to spend much energy on the question about how it should be titled. Form its talks in Tbilisi and Tskhinvali, it does, however realize that both sides unfortunately focus their attention precisely on the point. Representatives of both sides agree that there will in the future be room for some territorial entities of Georgia to call themselves “republic”. However, whereas many politicians in Tbilisi are willing to grant such a title to Abkhazia and Adjara, hardly anybody is ready to show so much flexibility for South Ossetia. South Ossetia leaders, on the other hand, find it essential that South Ossetia retain the attribute “republic” in any future compromise.

The Mission, finding this point of secondary importance, can imagine any kind of future title for South Ossetia. It would appeal to the Georgian side to show generosity in this question if Souse Ossetia to reintegrate itself into the Georgian state.

c) Some Georgian interlocutors have suggested to redrew the Souse Ossetian “border” (to be taken not in a technical but in a merely geographical sense) with inner Georgia. They show readiness to grant South Ossetia a constitutional status within Georgian but are reluctant to let it keep areas predominantly inhabited by Georgians.

This suggestion is in contradiction with a view expressed by other Georgian representatives that the future territorial structure of Georgia should not be designed along ethnic line. The Mission shares this latter view. It opposes any questioning of the existing South Ossetian borders which have lasted for more then seven decades, unless South Ossetia would agree to reconsider them. Any attempt to unilaterally change Souse Ossetian borders with the rest of Georgia would, in the Missions eyes, be in conflict with the recognized principle of inviolability of frontiers. The CSCE Council held in Prague on 30-31 January 1992, in connection with the Yugoslav crisis, appealed to the parties to respect the inviolability of all frontiers, internal end external, only to de altered by peaceful means and mutual consent.

d) It goes without saying that the South Ossetian borders with the rest of Georgia are interior borders and will therefore not be visible. The Georgian/South Ossetian frontier with Russia/North Ossetia will, as an international one, have the usual international border regime.

This Mission has expressed its view that everything should be done to make this border as permeable as possible for the inhabitants of Souse and North Ossetia. It has, with that aim in mind, made suggestions for the compositions of the future border and customs authorities on Georgian side.

The Mission further suggests to initiates institutionalized regional co-operation. An example like the Alpe-Adria co-operation (comprising regions of Switzerland, Germany, Austria and Italy as well as parts of the former Yugoslavia) suggests the foundation of Caucasian co-operation focusing on economic, infrastructural and environmental question. Such a body, as one of regional and not necessarily inter-state co- operation, could include South Ossetia and North Ossetia as well as other interested territorial entities of the Caucasu

e. The above proposal outlines a distribution of power between the state-wide government and South Ossetia. It does not address the question of South Ossetian representation in Tbilisi. The Georgian parliament, government and Supreme Court * (as well as any future Constitutional Court) will take basic decisions vital for entire country, including South Ossetia. Therefore, adequate representation of South Ossetia in the capital must be assured.

The Mission proposes to include in the Georgian constitution safeguards for adequate South Ossetian (and other regions) representation in institutions like Georgian Parliament, Supreme curt, government administration (ministries of foreign affairs, defense, security etc.) and central bank.

f) Granting a constitutional status to South Ossetia dose not, in itself, yet tackle the issue of protecting minorities throughout the country. In South Ossetia, it brings up the additional problem of how the rights of other ethnicities than Ossetians, namely of the Georgian population, will be safeguarded. The Georgians in South Ossetia will have to be effectively protected from any arbitrary decisions or behavior by the South Ossetian authorities, just as Ossetians living in Georgia proper must be protected against possible discrimination.

The Mission presented the aforementioned proposals as to how organize police, the judiciary, education etc. in South Ossetia in order to avoid discrimination. In addition to such practical proposals, it urges to include guarantees for the protection of ethnic groups in the future Georgian South Ossetian constitutions. These guarantees should cover ethnic rights in fields the education, the use of languages, freedom to assemble, adequate representation in the public service etc. They would apply to all ethnic minorities, among others to Ossetians living in Georgia outside south Ossetia and to Georgians living in South Ossetia.

These guarantees would be enforceable in all courts. The last resort would be the Georgian supreme court (which should be vested with a chamber for the protection of ethnic rights.) or a future constitutional court.

The Mission suggests to set up a national council for the protection of ethnic rights. The council should consist of a policy-making body, including political representatives delegated by all ethnic living in Georgian (among them Georgians and Ossetians), and a secretariat, recruited from diverse ethnicities. The council would be responsible for defining protection standards and overseeing their implementation by the government. It would have the right to initiate legislation. It would have direct access to the supreme court (or any future constitutional court) of Georgia as well as to the supreme court of South Ossetia.

g) The mission thinks that its proposal could be included in any future Georgian constitution, irrespective of whether it would opt for a Unitarian state structure with a territorial status for some units only (“asymmetrical federalism”) or for a federal organization of the entire Georgia territory.

(6 april 1995)

(Archive of OSCE Missin to Georgia; Newspaper “svobodnaya gruzia, # 26. 6 april 1995”)