Transnistria Bill Bowring DOI:10.1093/acprof:oso/9780198702375.003.0008 Abstract and Keywords This case examines the claim to independence of an unrecognized entity called Transnistria or Pridnestrovskaya Moldavskaya Respublika (PMR). The structure of this case study is as follows. First, the geographical location of the PMR and the history of its territory is described; second, the institutions of the PMR and its industrial base are outlined; third, the ethnic composition and identity of the population of the PMR is analysed; fourth, the question of whether the PMR could have a claim to self-determination, internal or external, is considered; fifth, the ECHR’s findings in the cases mentioned above that Russia exercises ‘effective control’ over the PMR are criticized; sixth, the various attempts at settlement and the position of the Moldovan government are considered. The chapter concludes on a note of optimism. Keywords: Transdniestria/Transnistria, self-determination, ethnicity, unrecognized entity, Moldova, Romania, Russia, Smirnov, European Court of Human Rights, Ilascu I. Introduction This case study concerns an unrecognized entity which, having been a paradigm of ‘frozen conflict’, may soon start to thaw. There is no consensus as to its name. Most of the scholarly literature refers to it as ‘Transnistria’; however, in its judgments in 2004 in Ilascu and Others v Moldova and Russia1 and in 2011 in Ivantoc and Others v Moldova and Russia2 the European Court of Human Rights (ECHR) refers to it as the ‘Moldavian Republic of Transdniestria (MRT)’, while in 2012 in Catan v Moldova and Russia3 the ECHR refers to it as both ‘Transdniestria’ and ‘the MRT’. The entity in question calls itself in Russian the ‘Pridnestrovskaya Moldavskaya Respublika (PMR)’ or ‘Pridnestrovie’, or in English ‘Transdniestria’. The New York Bar mission, mentioned below, referred to it as the ‘Transnistrian Moldovan Republic’ (TMR). I will stick to ‘the PMR’. On 28 December 2007, Igor Smirnov, president of the PMR from its declaration of independence on 2 September 1990 to his fall on 16 December 2011, said that ‘[b]?oth legally and historically, Transdniestria has a better claim to independence than Kosovo’.4 This case study will examine that claim. In this case study I refer to a wide range of scholarly material. In February 2004 I participated in a Mission to Moldova including the PMR on behalf of the International Commission of Jurists. We spent a week in Moldova, and our Report, entitled ‘Attacks on Justice: The Rule of Law in Moldova’, was published on 30 November 2004.5 I also draw from the legal assessment report published in 2005 by the New York Bar Association, which considered in depth one of the (p.158) central issues for this collection: whether the PMR has a right under international law to autonomy or possibly sovereignty.6 This is not a report on human rights violations in Transnistria; there have been many egregious violations, aptly summed up in the US State Department’s Report on Human Rights in Moldova in 2011: Transnistrian authorities restricted political activity and interfered with the ability of Moldovan citizens living in Transnistria to vote in Moldovan elections. Torture, arbitrary arrests, and unlawful detentions were regularly reported. Transnistrian authorities harassed independent media and opposition lawmakers, restricted freedom of association, movement, and religion, and discriminated against Romanian speakers.7 The Report gives details of grave violations under every heading. The human rights situation in Moldova is bad; that in the PMR is worse. The structure of this case study is as follows. First, I describe the geographical location of the PMR, and its population. Second, I analyse the history of this territory. It is generally agreed that the left, east, bank of the Dnester river has an identity quite different from that of the right, west, bank, previously known as Bessarabia. Third, I describe the institutions of the PMR, and its industrial base. Fourth, I analyse the ethnic composition and identity of the population of the PMR. Fifth, I consider whether the PMR could have a claim to self-determination, internal or external. I conclude on a note of optimism. Two aspects of the history of the PMR since 1990 are of particular significance. First, not only is its territory separated from Moldova by the river, but its history has followed a very different course from that of the ‘right bank’. Its population is ethnically and linguistically distinct from that of the rest of Moldova. Second, Russia, which has been found by the European Court of Human Rights to exercise effective control over its territory, has consistently insisted that the PMR must remain part of Moldova, albeit with guarantees and a special status. Russia does not and has not supported independence for the PMR, or any kind of closer association with Russia. II. Location and Population The territory in question lies mostly to the left (eastern) bank of a river which changes its name several times as it flows to the Black Sea. It is called Dnister at its beginning in Ukraine, Nistru in Moldova, and in its final passage to the Black Sea becomes the Dnester.8 So ‘Transnistria’ is the Moldovan (Romanian) name of the territory. I will refer to the Dnester river. (p.159) The population of Moldova was estimated by the CIA to be 3,656,843 as at July 2012 and was 3,938,679 in the 2004 census.9 The 2004 census gave Moldova’s ethnic composition as Moldovan/Romanian 78.2%, Ukrainian 8.4%, Russian 5.8%, Gagauz (a Turkic minority) 4.4%, Bulgarian 1.9%, other 1.3%. The PMR held its own census simultaneously, showing a population of 555,347 people (a fall from 679,000 in 1989), including Moldovan 32.10%, Russian 30.35%, Ukrainian 28.81%, Bulgarian 2.50%, Gagauz 0.74%, Roma 0.09%, Jewish 0.23%, Polish 0.32% and other 4.94%.10 III. History In his dissenting opinion in Ilascu, the Russian Judge Anatoly Kovler sought to remedy the fact that the majority of the Court failed to consider the history of the left (east) bank of the Dniester (Nistru) river. 1. History prior to 1991 The only reference by the ECHR to pre-1991 history in Ilascu was the following: 28. The Moldavian Soviet Socialist Republic, which was set up by a decision of the Supreme Soviet of the USSR on 2 August 1940, was formed from a part of Bessarabia taken from Romania on 28 June 1940 following the Molotov-Ribbentrop Pact between the USSR and Germany, where the majority of the population were Romanian speakers, and a strip of land on the left bank of the Dniester in Ukraine (USSR), Transdniestria, which was transferred to it in 1940, and is inhabited by a population whose linguistic composition in 1989, according to publicly available information, was 40% Moldavian, 28% Ukrainian, 24% Russian and 8% others. That is, in population terms, Moldovans were a minority on the left (east) bank. Judge Kovler asserted11 that the Court should have started its historical account considerably earlier. On his account, prior to 1360 the territory of Moldova was part of Hungary. In that year the principality of Moldova was created. In 1456 the principality was conquered by the Ottoman empire, and remained under Ottoman rule for several centuries. In 1711 Prince Dmitri Kantemir of Moldova and Peter the Great agreed that Russia should protect Moldova, and in 1791, following the war between Russia and Turkey, their peace treaty ceded control of the left (east) bank of the Dnester, where a high proportion of the population were Slavs, to Russia. The Treaty of Bucharest of 1812, concluded following further conflict between Russia and Turkey, incorporated the territory of Moldova between the Prut and the Dnester. This was named Bessarabia. (p.160) Having lost the Crimean War (1854–6), Russia was obliged to cede Bessarabia, which was included in the Kingdom of Romania, created in 1859. However, in 1878 the Treaty of Berlin returned Bessarabia to Russia, and Romania obtained Dobruja in compensation. In January 1918 Romania occupied Bessarabia and secured a vote from the local assembly in favour of its attachment to the Kingdom. At the same time, the Directory of Ukraine (at that time independent) proclaimed its sovereignty over the left (east) bank of the Dnester. At that time 48% of the population was Ukrainian, 30% Moldavian, 9% Russian, and 8.5% Jewish. In 1924 a Moldavian autonomous republic was created there. After 1924 the USSR compelled Romania to hold a plebiscite in Bessarabia, before occupying Bessarabia on 28 June 1940. It is therefore the case that the left (east) bank of the Dnester has had a distinct, Slavic, identity since the late eighteenth century. Kolstø and Malgin confirmed this in 1998: The right and left banks of the Dnestr are regional entities with rather different historical fates. In contrast to Bessarabia, the left bank has never been a part of the Romanian state. The Moldovan settlements here are newer than in Bessarabia and from the outset have been heavily exposed to Slavic culture.12 Another account is given by Andreas Johanssen.13 He also explains how in the period following the Napoleonic wars, that is from 1812 to 1917, the eastern half of Romanian Moldavia, the territory between the rivers Prut and Dnester, was a part of the Russian empire and was known as Bessarabia. Bessarabia declared its independence following World War I, and shortly afterwards the Moldova Republic (minus Bessarabia) voted to join Romania. The USSR considered Bessarabia still part of its territory and, following the Molotov–Ribbentrop Pact invaded Bessarabia and the remaining parts of Moldova, despite Romanian protests.14 He also points out that even as a joint republic, the Transnistrian part of the MSSR was deemed more trustworthy by Moscow. It was from Transnistria that much of the political leadership came, and the bulk of heavy industry was accordingly based there. Examples of the latter category are the metallurgical plant in Ribnitsa and the hydroelectric plant in Dubasari.15 The 2005 New York Bar Report also addressed the question of history, citing Charles King for the proposition that Transnistria was not part of traditional Romanian territory and was a classic borderland.16 From the ninth to the fourteenth centuries it was part of Kievan Rus;17 it then fell under Ottoman rule and, from 1812, was part of Russia. (p.161) It seems clear, taking these sources together, that the territory of the PMR has a very different history from the territory, formerly Bessarabia, to the west of the Dnester river. The fact that in the USSR it became part of the Moldovan SSR, and hence part of independent Moldova after 1991, is one of many historical anomalies thrown up by the rather arbitrary Soviet territorial organization. 2. History after 199118 According to the 1978 Constitution of the Moldavian SSR, there were two official languages in Moldova: Russian and ‘Moldavian’ (Moldovan/Romanian written with the Cyrillic alphabet). In August–September 1989 the Latin alphabet was reintroduced in Moldova for written Moldovan/Romanian, which became the first official language. On 23 June 1990 Moldova proclaimed its sovereignty, along with many other autonomous subjects of the USSR; on 23 May 1991 it changed its name to the Republic of Moldova, and on 27 August 1991 the Moldovan parliament adopted the Declaration of Independence of the Republic of Moldova, whose territory included Transdniestria. The USSR finally collapsed in December 1991. From 1989 onwards, ethnic Russians and Ukrainians in Transdniestria began to organize a movement of resistance to incorporation in a new Republic of Moldova. On 2 September 1990, shortly after the Moldovan Declaration of Independence, these Transdniestrian separatists announced the creation of the PMR. On 25 August 1991 the ‘Supreme Council of the PMR’ adopted the Declaration of Independence of the PMR. On 1 December 1991 a presidential election was organized in the Transdniestrian provinces and Mr Igor Smirnov was elected president of the PMR. The Moldovan authorities declared this election to be illegal. At the time of Moldova’s declaration of independence, it did not have its own army. The USSR’s 14th Army, whose headquarters had been in Chisinau since 1956, remained on Moldovan territory, although from 1990 onwards equipment and personnel began to be withdrawn. In 1991 the 14th Army in Moldova was composed of several thousand soldiers, infantry units, artillery (notably an anti-aircraft missile system), armoured vehicles, and aircraft (including planes and strike helicopters). It had a number of ammunition stores, including one of the largest in Europe at Colbasna in Transdniestria. By Decree no. 234 of 14 November 1991, the President of Moldova declared that ammunition, weapons, military transport, military bases, and other property belonging to the military units of the Soviet armed forces stationed in Moldovan territory were the property of the Republic of Moldova. By his own Decree, dated 5 December 1991, President Smirnov decided to place the military units of the 14th Army deployed in the PMR under the command of ‘the National Defence and Security Department of the PMR’. On 1 April 1992 Russia took back control of its forces. (p.162) At the end of 1991 and the beginning of 1992 violent clashes broke out between the PMR and Moldovan armed forces, and several hundred people died. On 21 July 1992 Mircea Snegur, President of the Republic of Moldova, and Boris Yeltsin, President of the RSFSR, signed an agreement on the principles for the friendly settlement of the armed conflict in the Transdniestrian region of the Republic of Moldova. This agreement created a security zone from which the forces of the ‘parties to the conflict’ withdrew (Article 1(2)). Under Article 2 of the agreement, a Joint Control Commission (JCC) was set up, composed of representatives of Moldova, the Russian Federation, and the PMR, with its headquarters in Tighina. The agreement established a peacekeeping force composed of five Russian battalions, three Moldovan battalions, and two PMR battalions subordinate to the JCC. Article 4 required Russian troops stationed in the territory of the Republic of Moldova to remain strictly neutral. Article 5 prohibited sanctions or blockades and laid down the objective of removing all obstacles to the free movement of goods, services, and persons. Immediately after the ceasefire in 1992, the OSCE became the lead international organization concerned with the PMR. Its current mission was established in February 1993. In April 1993 it opened an office in Chisinau, and it opened an office in Tiraspol in 1995. The OSCE’s first intervention was the 1993 ‘Report No. 13 of the CSCE Mission to Moldova’.19 This proposed the setting up of a Special Region of Transdniestria with its own regional executive, elective assembly, and court. This status would be established by agreement between both sides and implemented by a Moldovan law, with a guarantee in the new Constitution. The Special Region would be an integral part of the Republic of Moldova but enjoy considerable self-rule. If in future Moldova should choose to give up statehood in order to merge with another country (that is, Romania), the Special Region of Transdniestria would be guaranteed the right of ‘external self-determination’, ie to determine its own future. This Report referred to ‘internal self-determination’ in the cases of the Basque Country in Spain and Trentino–South Tyrol in Italy. On 29 July 1994 Moldova adopted a new Constitution. It provided that Moldova was neutral, that it prohibited the stationing in its territory of troops belonging to other states, and that a form of autonomy might be granted to regions which included some areas on the left bank of the Dnester. According to Article 13 of the Constitution, the national language was Moldovan, to be written using the Latin alphabet. 3. The Primakov Memorandum On 8 May 1997 in Moscow, President Petru Lucinschi of Moldova and President Smirnov of the PMR signed a memorandum laying down the basis for the normalization of relations between the Republic of Moldova and the PMR. This was known as the Moscow Memorandum (or Primakov Memorandum, after the then Russian Prime Minister).20 (p.163) Decisions concerning the territory of the PMR were to be agreed by both sides, powers were to be shared and delegated, and guarantees were to be secured reciprocally. The PMR had to be allowed to participate in the conduct of the Republic of Moldova’s foreign policy on questions concerning its own interests to be defined by mutual agreement. The PMR would have the right unilaterally to establish and maintain international contacts in economic, scientific, technical, cultural, and other fields, to be determined by mutual agreement. The parties undertook to settle conflicts through negotiation, with the assistance where necessary of the Russian Federation and Ukraine, as guarantors of compliance, and of the OSCE and the Commonwealth of Independent States (CIS). The 1997 Memorandum was countersigned by the representatives of the guarantor states, namely President Yeltsin for the Russian Federation and President Kuchma for Ukraine, and by Mr Helveg Petersen, the President of the OSCE. At the sixth summit of the OSCE in Istanbul in November 1999, 54 Member states signed the Charter for European Security and the Istanbul Summit Declaration and 30 Member states, including Moldova and Russia, signed the Agreement on the Adaptation of the Treaty on Conventional Armed Forces in Europe (CFE). This enshrined the principle that foreign troops should not be stationed in Moldovan territory without Moldovan consent. Russia’s agreement to withdraw from the PMR (one of the ‘Istanbul Commitments’) was set out in an Annex to the adapted CFE Final Act. In addition, the Istanbul Summit Declaration, at paragraph 19, recorded the Russian Federation’s commitment to withdraw its forces from Transdniestria by the end of 2002. 4. The Kozak Memorandum The Communist Party of Moldova won the Moldovan elections in 2001 and the new President of Moldova, Vladimir Voronin, entered into direct negotiation with Russia over the future of the PMR. In November 2003, Russia put forward a settlement proposal, the ‘Memorandum on the Basic Principles of the State Structure of the United State’—named the Kozak Memorandum after the Russian civil servant, Dimitry Kozak, who drafted it.21 The Kozak Memorandum proposed a new federal structure for Moldova, under which the authorities of the PMR would have a substantial degree of autonomy and guaranteed representation in the new federal legislature. It included transitional provisions under which, until 2015, a three-quarters majority in a newly created second chamber, composed of four representatives from Gagauzia, nine from Transdniestria, and 13 from the new federal legislature’s first chamber, would have been required to confirm federal organic laws. This would have given the Transdniestrian representatives in the second chamber an effective veto over any legislation affecting all of Moldova until 2015. (p.164) On 25 November 2003, having previously indicated his willingness to accept these proposals, Mr Voronin decided not to sign the Kozak Memorandum. There was yet another attempt under the Bulgarian Chairmanship of the OSCE in 2004: the ‘Proposals and Recommendations of the Mediators from the OSCE, the Russian Federation, and Ukraine with regard to the Transdniestrian Settlement’.22 This also proposed a federal state of Moldova, of which Transdniestria would be a subject. However, Steve Roper argues: One of the reasons why the federalization plan for Moldova has been so problematic is that there is widespread disagreement among scholars and governmental participants as to the nature and conceptualization of federalism and even what a federal state should look like.23 5. The Ukrainian plan In January 2005, in the ‘Orange Revolution’, Viktor Yushchenko was elected President of Ukraine. In May 2005 the Ukrainian Government introduced a new proposal for the resolution of the Transdniestrian conflict, ‘Towards a Settlement through Democratization’. In July 2005, on the basis of the Ukrainian plan, the Moldovan parliament adopted a law, ‘On the Basic Principles of a Special Legal Status of Transdniestria’. Formal negotiations resumed in October 2005, with the European Union and the United States of America participating as observers (referred to as ‘the 5+2 talks’). Wolff points out that as required by the 2005 Ukrainian Plan, the Parliament of Moldova passed a law, ‘On Fundamental Regulations of the Special Legal Status of Settlements on the Left Bank of the River Nistru (Transnistria)’, on 22 July 2005 (the Moldovan Framework Law). But Moldovan thinking is to be found in a 2007 package proposal for a ‘Declaration Concerning Principles and Guarantees of the Transnistrian Settlement’ and, appended to it, a ‘Draft Law on the Special Legal Status of Transnistria’24 (known as the Moldovan Package Proposal).25 This proposed that ‘Transnistria is an administrative-territorial unit in the form of a republic within the Republic of Moldova...The status of Transnistria within the Republic of Moldova will be determined by Law on the Special Legal Status of Transnistria and will be confirmed accordingly in the Constitution of the Republic of Moldova’. No doubt in order to strengthen his own bargaining position, President Smirnov organized a referendum in September 2006 in which PMR citizens voted overwhelmingly—with 97% in favour—for independence and ‘free association with Russia’.26 (p.165) Following its victory in the ‘Five Day War’ against Georgia in August 2008,27 Russia showed no signs of encouraging the PMR’s claim to independence. The commentator Dmitri Trenin wrote in 2009 that in the year of writing, Russian policy focused on revitalizing the peace process in Moldova and closing an agreement between Chisinau and Tiraspol on the modalities of a common Moldovan state.28 This was despite the fact that following their recognition by Russia, Abkhazia and South Ossetia opened representations in Tiraspol, and the PMR in turn opened representations in Sukhumi (the capital of Abkhazia) and Tskhinvali (the capital of South Ossetia). However, these entities, themselves recognized only by Russia and a handful of other states, will not recognize the PMR. As Maxim Kuzovlev pointed out, Ossetia and Abkhazia would not dare to establish diplomatic relations with the PMR without Russia’s consent.29 Such consent will not be forthcoming. 6. The unexpected fall of President Smirnov The elections which took place on Sunday 12 December 2011 took all observers by surprise, especially those who considered the PMR to be under strict Russian control, or at any rate believed that the Smirnov regime could not be shaken. After all, in its 2004 judgment in Ilascu the Strasbourg Court held that:392. All of the above proves that the ‘MRT’, set up in 1991–92 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at the very least under the decisive influence, of the Russian Federation, and in any event that it survives by virtue of the military, economic, financial and political support given to it by the Russian Federation. Stefan Wolff, writing earlier in 2011, did not anticipate such a change.30 Theodor Tudoroiu, writing in April 2012, regarded Smirnov as a fixed element in the PMR, believing that Smirnov might even contemplate the ignition of small-scale armed conflict to ensure a large-scale mobilization in the PMR to enhance the legitimacy of his regime. However, he added that Smirnov would not have the freedom of deciding such a matter. ‘On serious matters, the final decision has always been taken by the Kremlin.’31 (p.166) Indeed, as a comment on The Economist’s ‘Eastern Approaches’ blog on 14 December noted, the outcome of the elections was so surprising that the Central Electoral Commission sat on the results for two days.32 Mr Smirnov had been expecting to win, as usual. However, he came in third, with just 25% of the vote. The candidate preferred by Russia came second with 26.5%. The winner was Yevgeny Shevchuk, whom Mr Kaminski displaced as chair of the Supreme Soviet, Transdniestria’s parliament, in 2009. These results were strong evidence for the fairness of the election. Kálmán Mizsei, who was for five years the European Union’s special envoy tasked with settling the frozen conflict between Transdniestria and Moldova, described Mr Shevchuk as ‘the candidate of the young of Transdniestria, who are desperate for reform’. In the second round, Shevchuk received about 74% of the vote. According to Marcin Kosienkowski, writing in August 2012,33 Shevchuk is seen in Moldova, the west and Russia as a rational and reasonable politician, having proved himself while speaker of parliament in 2005–9 and as leader of the Obnovleniye party to 2010. Obnovleniye is sponsored by the biggest company in the PMR, Sheriff, and won the parliamentary elections in 2005. Kosienkowski presents evidence that having started from a position of demanding independence and integration with Russia, Shevchuk has accepted the idea of reunification with Moldova.34 The Russian scholar Andrey Devyatkov confirmed that Russia did not support Shevchuk, and State Duma deputies tried to discredit him, calling him a protégé of the west—the PMR’s Saakashvili. Unlike Kaminsky, who presented himself as the Kremlin’s candidate, Shevchuk was seen as the bearer of true renewal and a professional governing style. So the Kremlin failed to bring its own protégé to power, but ‘completed its mission at the most basic level: Smirnov’s regime has been overthrown, and Moscow has recognised the results of the election...’.35 Furthermore, by appointing Peter Stepanov, former Minister of Justice, as his Prime Minister in early January 2012, Shevchuk compromised with Russia and with his political opponents in the PMR.36 This was confirmed in the Russian media.37 At the same time, Moscow showed its dissatisfaction with the election results on 26 January when it failed to pay a promised sum of $300 million for technical assistance. This was disclosed by none other than Mr Kaminsky, who (p.167) also said that Russia was waiting for the final formation of a new government. At the same time, criminal proceedings had been commenced in Russia against Smirnov’s son, Oleg. And Kaminsky obtained from Russia a promise that the 150 roubles per month pension supplement paid by Russia would continue.38 Russia has continued to push for a settlement in which the PMR will find its place within Moldova. On 30 July 2012 Grigorii Karasin, the deputy head of the Russian Foreign Ministry, announced in Tiraspol that the conflict between Chisinau and Tiraspol must be settled by way of including the PMR within Moldova with the rights of a special district. This was the first time Moscow’s view had been expressed so strongly. Russia’s conditions were firm guarantees for Moldova’s neutrality and non-membership of NATO, and also for the rights of Russians and the status of the Russian language as second state language in Moldova. The daily Kommersant newspaper noted that throughout the years since 1992, Moscow had always considered the PMR to be a part of a united Moldova. However, such an announcement had never previously been made in Tiraspol.39 The German Chancellor Angela Merkel supported Russia’s position when she visited Chisinau in August 2012.40 Nonetheless, evidence of continued closeness to Russia was provided first by a parliamentary proposal on 24 October 2012 to bring the PMR’s legislation on political parties into line with Russia’s,41 and then by hopes expressed on 25 October 2012 in Tiraspol that Russia would open regular aviation communications with the PMR.42 The judgment of the Strasbourg Court on 19 October 2012 in Catan v Moldova and Russia43 muddied the water considerably. The complaints were made in 2004–6 by a large group of teachers and parents in three schools in the PMR towns of Benderi, Ribnitsa, and Grigoriopol, where the language of instruction was Moldovan written in Latin script—that is, Romanian. The Court awarded compensation, ‘just satisfaction’, in the sum of more than one million euros, with 50,000 euros for legal expenses. (p.168) IV. Institutions of the PMR In 2006 Dov Lynch asserted: The amalgam of territory, population and government in the separatist area of Transnistria has produced something that is greater than the sum of these parts—a weak but still determined belief in the separatist region’s sovereignty, at least by the region’s authorities and elites, if not also by its population. The separatist authorities in Tiraspol maintain that they exist empirically. And, however weak the left bank institutions are, they have the recognisable features of statehood.44 Indeed, the PMR has many of the trappings of statehood. Its Constitution was adopted in a referendum held on 24 December 1995 and signed by President Smirnov on 17 January 1996.45 The Constitution was amended by laws of 15 December 1998, 30 June 2000, 13 July 2005, and 10 February 2006. The Constitutional Court—the first organ of constitutional control in the history of the PMR—was founded on 12 June 2002. On that day a special Session of the Supreme Soviet of the PMR took the oaths of six Judges of the Constitutional Court.46 On the occasion of my visit to Tiraspol in 2004 I visited the court and met the judges. The Court is closely modelled on the Constitutional Court of the Russian Federation and has—although not often—decided cases against the authorities. Its judgments and other materials are published in three languages. The Supreme Council (‘Soviet’ in Russian) of the PMR started work in 1990.47 The II Extraordinary Congress of People’s Deputies of all levels of Pridnestrovie elected an Interim Supreme Council with 50 members. It was authorized to provide organization and efficient government of the republic until 1 December 1990. The Interim Supreme Council was tasked to elect the Chairman of the Supreme Council, the Public Prosecutor, the State Arbitrator, the Minister of Internal Affairs, and the Chairman of the State Security Committee, and also to appoint the Chairman of the Council of Ministers of the Republic and the members of the Presidium. On 3 September 1990 the Presidium of the Supreme Council, comprising 18 persons headed by the Chairman and his three vice-chairmen, was elected. In March 1990 Igor Nikolaevich Smirnov, director of the Tiraspol factory Electromash, was elected Chairman of Tiraspol City Council of People’s Deputies, and also Chairman of the Interim Supreme Council. On 30 January 1991, at the fifth session of the 1st Supreme Council of PMR, the deputies elected at the previous election comprised 25 Russians, 21 Ukrainians, 12 Moldavians, one Bulgarian, one Turkmen, two Gagauzians, and one Jew. (p.169) Since 1991 the PMR has also had a Supreme Court and an Arbitrazh (Commercial) Court—the latter has now become fully electronic.48 There is a full set of ministries, each with their own website.49 V. The PMR Economy The main industrial enterprises of the PMR, almost all with their roots in the Soviet period but privatized since 1991, are: the Montazhavtomatika factory in Tiraspol, providing design and construction services in the sphere of water supply, heat supply, and energy supply;50 the clothes factory Odema, with over 1,000 employees, exporting all over Europe;51 the textile factory Tirotex, exporting all over the world;52 the bread factory Tiraspolskiy Khlebokombinat;53 the Bender factory Elektroapparatura;54 the footwear factory Floare, with over 1,000 employees;55 the garment factory Intercenterlux, producing for most of the best-known luxury brands in Europe and elsewhere;56 the Bendery Starch Products complex, with EU trade preferences;57 the Rybnitsa Fuel Pump Factory;58 the Moldovan power station;59 the Tiraspol factory for metal goods;60 the Moldavkabel cable factory;61 the Tiraspol casting machine factory Litmash;62 the Kvint alcoholic beverages factory;63 and the giant Moldova Steel Works in Rybnitsa, with an annual turnover of more than $500 million.64 This represents, in fact, practically all of the industrial production of Soviet Moldova.65 And the PMR Federation of Trade Unions has its own website.66 In 1998 Kolstø and Malgin confirmed that a significant part of Moldova’s industrial potential is concentrated on the east bank of the river, that is, in the PMR. The majority of the urban population—in Tiraspol, Rybnitsa, Dubossary, Slobozia, and Benderi—are engaged in large industrial plants. Like most industrial, urban regions in the former Soviet Union, the population is strongly Russified. They see themselves mostly in the cultural context of Russia, not of ‘their own’ republic.67 (p.170) VI. Ethnic Make-up of the PMR—and PMR Identity It is not contested that the PMR is an ethnically plural society.68 Ethnic Moldovans, Russians, and Ukrainians each constitute around 30% of the population. Stefan Wolff noted in 2011 that despite or because of this mix, ‘...there are no significant inter-ethnic tensions in Transnistria itself’. On the contrary, he cited the CSCE Mission to Moldova’s Report No. 13 of 1993, which ‘asserted a “distinct Transdniestrian feeling of identity” anchored in language (Russian), geography (natural separation from the rest of Moldova by the River Nistru), history (Transnistria as part of the Russian empire, rather than historic Bessarabia), and a perception—rightly or wrongly—to have been at the receiving end of a Moldovan attempt to resolve the dispute by force in 1992’.69 Wolff referred to further evidence for this shared sense of belonging: the fact that those displaced during the brief spell of violence in 1992 have all been able to return to their homes, regardless of their ethnic identity.70 As far back as 1998, Kolstø and Malgin noted that the separate identity of the inhabitants of the PMR had been recognized in Moldova. A draft law on national minorities which was printed in a government newspaper in 1992 stated, inter alia, that ‘[t]?he left bank regions of the Dnestr are distinct in the peculiarities of their history...the national composition of the population, traditions, and mentality, comprise one of the historically defined language zones of the Republic of Moldova.’71 In their conclusion, Kolstø and Malgin wrote that ‘the idea of Gagauz autonomy can appeal to ethnic Gagauzi only, while the concept of Transnistrian sovereignty is more regional and can find devotees among all ethnic groups in the area’.72 Kolstø returned to the topic in 2006. In his view there were cases, of which the PMR was the best example, in which a separate identity for the population of a rebellious region had been achieved without any ethnic cleansing. He emphasized that ethnic Moldovans made up roughly 40% of DMR’s population and, while many of them sympathized with the Chisinau regime, a large number shared in the ‘common supraethnic Dniester identity fostered by the Tiraspol leadership’. This identity was based not on ethnicity but on a common language, namely Russian; a separate history; and even a certain nostalgia for the Soviet past.73 (p.171) In 2011 Kolstø, writing with Blakkisrud,74 argued that ‘...both the time factor and the quest for recognition have contributed to pushing Transnistria away from being a “black hole” and “racketeer state,” and toward developing something akin to full-fledged statehood (minus official recognition)’.75 They further noted that the new generation of inhabitants of the PMR were officially supposed to be bilingual and fluent in at least two of the three state languages, Moldovan, Russian, and Ukrainian (Article 12 of the Constitution of PMR).76 In their view, the PMR’s official multi-ethnicity made it quite different from Abkhazia, Nagorno-Karabakh, or South Ossetia, and indeed from most recognized states of the former USSR. The willingness to bear the financial cost of official multi-ethnicity was itself remarkable, given the fact that the PMR is not rich.77 Their conclusion was that although the PMR remained as illegitimate as it was in 1991, the ‘parallel processes’ of state-building and nation-building had fundamentally changed state and society. In their view, the option of reuniting with Moldova had become increasingly less attractive.78 However, as I have shown above, it seems increasingly likely that reunification with Moldova will take place, like it or not. VII. The Status of the PMR--Self-determination? The PMR itself declared on its website as late as 9 December 2011—just before the election—that the 2006 referendum, in which 94% of the population voted for sovereign statehood, was a clear sign of a vote for self-determination. That page has now disappeared. However, on 20 November 2012 President Shevchuk signed a Decree on the Conception of Foreign Policy of the PMR.79 This refers to a ‘future model of relations between Pridnestroviye and Moldova’ based on firm guarantees. It should be noted that in 1990 Transdniestria joined some 26 entities of the Russian Socialist Federation of Soviet Republics in declaring sovereignty—that is, seeking the status of a Union Republic within the USSR, with the constitutional right to secede.80 However, the 2005 New York Bar report stated categorically that ‘[t]?here is no solid basis for a claim of secession under external self-determination. The most basic requirements for a legal claim are not met’.81 (p.172) The right of peoples to self-determination in international law is succinctly stated in the first paragraph of common Article 1 of the 1966 (entering into force in 1976) International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), as follows: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. This right, enshrined in Covenants now ratified by almost every state, has now achieved a high status in international law. In its judgment of 30 June 1995 in the East Timor case (Portugal v Australia),82 the International Court of Justice declared (para 29, p. 102) that it has an erga omnes character. Furthermore, in its 9 July 2004 Advisory Opinion in the Wall in Occupied Palestinian Territory case,83 the Court cited those words. The New York Bar’s starting point, upon which all may agree, is that the population of the PMR are not an ‘ethnicity’. However, could they qualify as a people? In his classic 1995 text, not referred to by the New York Bar report, Antonio Cassese took the view that: ...the general spirit and context of Article 1, combined with the preparatory work, lead to the conclusion that Article 1 applies to: (1) entire populations living in independent and sovereign States, (2) entire populations of territories that have yet to attain independence, and (3) populations living under foreign military occupation. It is thus apparent that the existence of a right to self-determination is not necessarily determined by reference to a territory’s international political status.84 Richard Kiwanuka, discussing the meaning of ‘people’ in the African Charter, identified four definitions depending on context, including all persons, or all groups of people with certain common characteristics, within the geographical limits of an entity.85 Ian Brownlie asserted for the proposition that the principle of self-determination has a ‘core of reasonable certainty’, namely the ‘right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives’. This distinct character may well be determined by matters of culture, language, religion, and group psychology. If purely ethnic criteria were applied exclusively it would mean negating the national identity of, for example, the United States.86 The New York Bar rely chiefly on the 1998 judgment of the Supreme Court of Canada.87 This contained the following: In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, (p.173) as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied their ability to exert internally their right to self-determination. That would be a conclusive argument if the question in issue were the secession of the PMR from Moldova. The PMR was not a colony; its people were not oppressed except, perhaps, by their own government; and its people have not been denied meaningful access, except, perhaps, by their own government. But there was no secession from independent, post-Soviet Moldova, but rather a declaration of independence, before the collapse of the USSR in December 1991, from the Moldovan Socialist Soviet Republic. The authors of the New York Bar Report appear to agree with Judge Kovler and others that the left (east) bank of the Dnester had for centuries a quite different history, language, and culture from Bessarabia, the right (west) bank. The fact that several ethnicities and linguistic groups live there cannot be decisive, for the reasons given by Brownlie. If the inhabitants of the territory of the PMR have indeed acquired their own identity, their own ‘distinct character’—distinct from the remainder of Moldova—then they may well have a right of self-determination as a ‘people’. Nowadays, the right of peoples to self-determination is generally exercised through varieties of autonomy or even federalism, and it is noteworthy that the various proposals for resolution of Moldova’s problems have involved proposals for degrees of autonomy for the PMR territory and for the 160,700-strong Turkic-language Gagauz people of southern Moldova, who now have their own ‘national–territorial autonomous unit’ with three official languages: Moldovan, Gagauz, and Russian. Perhaps the strongest point in favour of a right to self-determination is the fact of more than 20 years of separation from Moldova, during which time a strongly state-like, if unrecognized, social and political entity has taken root in the territory demarcated by the Dnester river, with the addition of Bender. The very firm position taken by Russia gives rise to a reasonably certain prediction that self-determination for the people of the PMR will take the form of a special status within a reunified Moldova. VIII. Conclusion Despite all the proposals referred to in the previous section, the status of the PMR has yet to be resolved. Russia has never recognized it as a state and has always maintained that the PMR should have a special status within Moldova, either as the subject of a federation (with Gagauzia as another subject) or as something similar to the Autonomous Republic of Crimea, which has been part of Ukraine, a unitary state. In 2006 Oleh Protsyk argued that: Such fundamental characteristics of the Transnistrian conflict as the absence of the deeply entrenched animosity among major ethnic groups, the stabilizing effects of geographic proximity to the EU and strong incentives for economic cooperation across the current (p.174) political divide favourably distinguish the Transnistrian situation from the conflicts in Abkhazia, South Ossetia, and Nagorno Karabakh. These fundamentals, as well as the great promise of improving economic, social, and political fortunes of people on both sides of the Nistru river that the idea of the country’s reintegration contains, should make domestic actors and international mediators keep trying to find a lasting solution for the Transnistrian problem.88 Protsyk’s fears, expressed in 2009, of intransigence by the PMR leadership89 have been overtaken by events. International negotiations were restarted on 30 November to 1 December 2011, for the first time since 2005. The OSCE’s Lithuanian chairmanship hosted the event in Vilnius in the familiar 5 + 2 format (Russia, Ukraine, OSCE, United States, European Union, Chisinau, Tiraspol). But Russian Foreign Minister Sergei Lavrov, in a number of speeches and lectures in Chisinau, proposed a political settlement ‘in the framework of Moldova’s sovereignty and territorial integrity, with a guaranteed special status for Transnistria’ and with ‘Russia as a mediator and guarantor of the settlement’, to be negotiated in the relaunched 5 + 2 format. According to Lavrov, the Kozak Memorandum of 2003 should be utilized for ‘reference and continuity’ of the process. In the opinion of Vladimir Socor, Lavrov’s proposal was cynically designed to prevent any progress.90 However, the talks concluded with agreement to hold further talks in February 2012 in Dublin—a good result, according to the Lithuanian Chairmanship.91 In my view, there will, after a hiatus of more than 20 years, be a settlement, with the PMR either as the subject of a federation or with special status in Moldova. Unless, that is, Moldova—the poorest country in Europe—decides to join Romania, which is highly unlikely. So perhaps there are grounds for optimism.92 Notes: (1) Application no. 48787/99, judgment of 8 July 2004. (2) Application no. 23687/05, judgment of 15 November 2011. (3) Application nos. 43370/04, 8252/05 and 18454/06, judgment of 19 October 2012. (4) This appeared on former President Smirnov’s official website as late as 9 December 2011. This has of course now vanished. (5) B Bowring, C L’Heureux-Dubé and L Besharaty-Movaed, Attacks on Justice: The Rule of Law in Moldova (International Commission of Jurists 2005) at accessed 4 February 2014. (6) At . (7) At accessed 24 November 2012. (8) . (9) accessed 24 November 2012. (10) . (11) Ilascu 144–5. (12) P Kolstø and A Malgin, ‘The Transnistrian Republic: A Case of Politicized Regionalism’ (1998) 26 NP 103–27, 106. (13) A Johansson, ‘The Transnistrian Conflict after the 2005 Moldovan Parliamentary Elections’ (2006) 22 JCSTP 507–16. (14) Johansson (n 13) 508. (15) Johansson (n 13) 509. (16) C King, The Moldovans: Romania, Russia, and the Politics of Culture (Studies of Nationalities) (Hoover Institution Press 2000) 181. (17) King (n 16) 179. (18) This historical account is drawn from the judgment of the Grand Chamber of the ECHR in Catan. (19) At . (20) In English at . (21) (in Russian); (in English). (22) accessed 25 November 2012. (23) SD Roper, ‘Federalization and Constitution-Making as an Instrument of Conflict Resolution’ (2004) Demokratizatsiya 527–39, 528. (24) accessed 25 November 2012. (25) Wolff (n 21) 11–12. (26) E Berg, ‘Parent States versus Secessionist Entities: Measuring Political Legitimacy in Cyprus, Moldova and Bosnia & Herzegovina’ (2012) 64 Europe-Asia Studies 1271–1296, 1282. (27) B Bowring, ‘Georgia, Russia and the Crisis of the Council of Europe: Inter-State Applications, Individual Complaints, and the Future of the Strasbourg Model of Human Rights Litigation’ in J Green and C Waters (eds), Conflict in the Caucasus: Implications for International Legal Order (Palgrave Macmillan 2010) 114–135. (28) D Trenin, ‘The Independence of Kosovo and its Implications’ (2009) 5 ESFRES 115–20, accessed 25 November 2012. (29) M Kuzovlev, ‘“Kozak-2 plan” or Recognition of Transnistria?’ (2008) Policy Documentation Centre CEU, accessed 25 November 2012. (30) S Wolff, ‘A Resolvable Frozen Conflict? Designing a Settlement for Transnistria’ (2012) 39 NPJNE 863–70. (31) T Tudoroiu, ‘The European Union, Russia, and the Future of the Transnistrian Frozen Conflict’ (2012) 26 EPS 135–61, 147. (32) accessed 24 November 2012. (33) M Kosienkowski, ‘Is Internationally Recognised Independence the Goal of Quasi-States? The Case of Transnistria’, Working Paper accessed 24 November 2012, 5. (34) Kosienkowski (n 33) 6. (35) A Devyatkov, ‘Russian Policy Toward Transnistria: Between Multilateralism and Marginalization’ (2012) 59 Problems of Post-Communism 53–62, at 59. (36) Devyatkov (n 35). (37) ‘Noviy president Pridnestrovya predstavil soglasovannuyu s Kremlem kandidaturu premyera’ (The new president of Pridnestrovia presented his candidate for premier agreed with the Kremlin) 11 January 2012 accessed 24 November 2012. (38) ‘Rossii ostavila Pridnestrovye bez deneg—vozmozhno, obidelas na svoevolnikh zhitelei’ (Russia left Pridnestroviye without money—it is possible that it was upset by its independent-minded inhabitants) 26 January 2012 accessed 24 November 2012. (39) ‘Rossii zayavila Pridnestrovyu, chto pora vozvrashchatsya v Moldaviyu, i ozvuchila svoi usloviya’ (Russia told Pridnestroviya that it is time to return to Moldova, and laid out its conditions) 30 July 2012, accessed 24 November 2012. (40) See accessed 24 November 2012. (41) accessed 24 November 2012. (42) accessed 24 November 2012. (43) Application nos. 43370/04, 8252/05 and 18454/06, judgment of 19 October 2012. (44) Dov Lynch, ‘Peacekeeping in Transnistria: Cooperation or Competition?’ (2006) International Spectator accessed 25 November 2012. (45) See accessed 25 November 2012. (46) See the Court’s website at accessed 25 November 2012. (47) See its history in English at accessed 25 November 2012. (48) See accessed 25 November 2012. (49) See the list at . (50) accessed 25 November 2012. (51) . (52) . (53) . (54) . (55) (in English). (56) (in English). (57) (in English). (58) (in English). (59) . (60) . (61) . (62) (in English). (63) (in English). (64) (in English). (65) See also A Gudim (2006), ‘Transnistria: Conflicts and Pragmatism of the Economy’ PDC CEU at accessed 25 November 2012. (66) . (67) Kolstø and Malgin (n 12) 107. (68) A Skvortsova, ‘The Cultural and Social Makeup of Moldova: A Bipolar or Dispersed Society?’ in P Kolstø (ed), National Integration and Violent Conflict in Post-Soviet Societies: The Cases of Estonia and Moldova (Rowman & Littlefield Publishers 2002) 159–96. (69) S Wolff, ‘The Prospects of a Sustainable Conflict Settlement for Transnistria’ . (70) Wolff (n 69) 5. (71) P Kolstø and A Malgin, ‘The Transnistrian Republic: A Case of Politicized Regionalism’ (1998) 26 NP 103–27, 104. (72) Kolstø and Malgin (n 71) 122. (73) P Kolstø, ‘The Sustainability and Future of Unrecognized Quasi-States’ (2006) 43 JPR 723–40, 731 accessed 25 November 2012. (74) H Blakkisrud and P Kolstø, ‘From Secessionist Conflict Toward a Functioning State: Processes of State- and Nation-Building in Transnistria’ (2011) 27 PSA 178–210. (75) Blakkisrud and Kolstø (n 74) 182. (76) accessed 24 November 2012. (77) Blakkisrud and Kolstø (n 74) 195. (78) Blakkisrud and Kolstø (n 74) 206. (79) accessed 24 November 2012. (80) See the table at pages 55–6 of B Bowring, ‘The Russian Constitutional System: Complexity and Asymmetry’ in M Weller and K Nobbs (eds), Asymmetric Autonomy and the Settlement of Ethnic Conflicts (University of Pennsylvania Press 2010) 48–74. (81) New York Bar (2005) 51, . (82) . (83) . (84) A Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press 1995) 59. (85) R Kiwanuka, ‘The Meaning of “People” in the African Charter on Human and Peoples’ Rights’ (1988) 82 AJIL 80–101. (86) I Brownlie, ‘The Rights of Peoples in Modern International Law’ (1985) 9 BASLP 104–19, 107–8. (87) Reference re Secession of Quebec, 2 SCR 217 at para 123 (1998). (88) O Protsyk, ‘Moldova’s Dilemmas in Democratizing and Reintegrating Transnistria’ (2006) 53 Problems of Post-Communism 29–41, 41. (89) O Protsyk, ‘Representation and Democracy in Eurasia’s Unrecognized States: The Case of Transnistria’ (2009) 25 PSA 257–81, 277. (90) V Socor, ‘Lavrov Squashes Hope for Constructive Restart of Transnistria Negotiations’ (2011) Eurasia Daily Monitor, 6 November, accessed 25 November 2012. (91) accessed 25 November 2012. (92) C Urse, ‘Solving Transnistria: Any Optimists Left?’ (2008) QJ 57–75 accessed 25 November 2012.