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The Effects of the ICJ Decision on Kosovo (if any) on the “Frozen Conflicts” of the Former Soviet Union

by Gra­ham Dumas (J.D. Can­di­date 2011)

Note: This is a cross-post from my Rus­sia-spe­cif­ic blog, Onion Domes and Oligarchs.

That yesterday’s advi­so­ry opin­ion by the Inter­na­tion­al Court of Jus­tice, Accor­dance with Inter­na­tion­al Law of the Uni­lat­er­al Dec­la­ra­tion of Inde­pen­dence in Respect of Koso­vo, was decid­ed on extreme­ly nar­row grounds has already been not­ed else­where in the blo­gos­phere. Fur­ther, its sta­tus as an advi­so­ry opin­ion of course means that it is non-bind­ing (though wide­ly respect­ed) and per­tains only to the ques­tion asked of the Court by the U.N. Gen­er­al Assembly.

Nev­er­the­less, it may be inter­est­ing to apply to the con­text of the frozen con­flicts in the for­mer Sovi­et Union some of the prin­ci­ples dis­cussed in and gen­er­at­ed by the Court’s Koso­vo opin­ion. After all, polit­i­cal lead­ers in Moscow have fre­quent­ly (and threat­en­ing­ly) cit­ed Koso­vo as a prece­dent for the inde­pen­dence of Abk­hazia and South Osse­tia, despite the obvi­ous and numer­ous dif­fer­ences between these cas­es. A brief bit of analy­sis after the jump.

The Koso­vo deci­sion is rather terse on the ques­tion of gen­er­al inter­na­tion­al law applic­a­ble to uni­lat­er­al dec­la­ra­tions of inde­pen­dence, but it offered at least a three points that struck me as poten­tial­ly rel­e­vant to the frozen conflicts.

First, there is the ques­tion of ter­ri­to­r­i­al integri­ty, which, as the Court notes in para. 80, applies only between states. It would not, there­fore, vio­late this prin­ci­ple if a break­away province declared inde­pen­dence, as that province would not bear the oblig­a­tion in ques­tion. But this, of course, does not reach the actions of oth­er states tak­en to aid bur­geon­ing inde­pen­dence move­ments, as alleged­ly occurred in many post-Sovi­et con­flicts. The Court’s dis­tinc­tion between inde­pen­dence move­ments and states could be tak­en to imply that, in order for a dec­la­ra­tion of inde­pen­dence to not vio­late ter­ri­to­r­i­al integri­ty, the orga­ni­za­tion issu­ing it must be untaint­ed by exter­nal aid. Were a state to sim­ply cre­ate a faux-inde­pen­dence move­ment with­in one of its rivals for the pur­pos­es of desta­bi­liz­ing that coun­try, I find it hard to believe that a dec­la­ra­tion issued by such a move­ment could be con­sid­ered in a light sim­i­lar to the Koso­vo case. The line is thin and vague, but if it does indeed exist, I think there is a strong argu­ment that the dec­la­ra­tions of inde­pen­dence issued by Abk­hazia and oth­er break­away republics are invalid from the stand­point of ter­ri­to­r­i­al integrity.

Sec­ond, in para. 81, the Court men­tions that the legal­i­ty of any giv­en dec­la­ra­tion of inde­pen­dence is high­ly fact-spe­cif­ic, and may be under­mined by “the unlaw­ful use of force or oth­er egre­gious vio­la­tions of norms of gen­er­al inter­na­tion­al law,” in par­tic­u­lar jus cogens norms. This deter­mi­na­tion will, of course, hurl us into the knot­ty debate of who fired first in the var­i­ous post-Sovi­et con­flicts. This is a ques­tion whose answer depends in no part on the time­frame con­sid­ered; fur­ther, the true ori­gins of a con­flict may be obscured by the fact that many pre­date the col­lapse of the USSR, mean­ing that hard evi­dence is scant and mem­o­ries dis­tort­ed. Nev­er­the­less, the stain of unlaw­ful use of force by both sides in these con­flicts may prove so indeli­ble that the legal­i­ty of any dec­la­ra­tion of inde­pen­dence may be called into question.

Final­ly, by way of a small coun­ter­ar­gu­ment, I must point out that the Court found no applic­a­ble pro­hi­bi­tion at gen­er­al inter­na­tion­al law on uni­lat­er­al dec­la­ra­tions of inde­pen­dence (para. 84). Thus, it is not out of the ques­tion that dec­la­ra­tions issued by puta­tive states like Abk­hazia and South Osse­tia are indeed legal, or at least not com­plete­ly ille­gal. Russia?s involve­ment in their cre­ation is, of course, questionable–especially in light of the NATO cam­paign that, while couched in human­i­tar­i­an terms, essen­tial­ly cre­at­ed the space that Kosovo’s inde­pen­dence move­ment need­ed to sur­vive and devel­op. The facts are, to my mind, quite dif­fer­ent in these two cas­es, but that does not do enough to deny Abk­hazia, its brethren, and their inter­na­tion­al sup­port­ers the plau­si­bil­i­ty required to sup­port claims of inde­pen­dence. This, in turn, is all that is need­ed to keep them away from the nego­ti­at­ing table, and to fur­ther aggra­vat­ing these conflicts.

Thus, for the pur­pos­es of the var­i­ous post-Sovi­et frozen con­flicts, as well as oth­ers around the world, the Koso­vo opin­ion offers a mixed bag. It will be inter­est­ing to see how the case will affect the dis­cus­sion of seces­sion and inde­pen­dence in the future, although, like my col­league, Ben, I don’t think there is much fod­der for objec­tive, aca­d­e­m­ic debate in the text. The real fun will come when inde­pen­dence move­ments and their sup­port­ers begin try­ing to pound Koso­vo into place to bol­ster their own causes.

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