Frozen Conflicts in International Law

Introduction

I.Introducing Frozen Conflicts

Frozen conflicts are typically understood as existing in a liminal state between war and peace. They are less violent than full-scale wars, but they involve unresolved issues and an underlying threat that together distinguish them from true peace: a no-war-no-peace situation. This phenomenon has probably been present since the advent of warfare. However, in recent decades, such conflicts have subtly but persistently challenged peace and stability in certain regions of the world. Accordingly, it is in recent decades that the term ‘frozen conflict’ has emerged and widely been used. For instance, the term has been used by The Economist, former US president Obama, in the coalition agreement of the German government, by the Parliamentary Assembly of the Council of Europe (PACE), OSCE officials, and UN Secretary Generals Annan and Guterres.¹

Often, the term ‘frozen conflict’ is applied to disputes in the post-Soviet space: to the break-away regions of South Ossetia and Abkhazia in Georgia, Transnistria in Moldova, and Nagorno-Karabakh in Azerbaijan. These conflicts have been labelled frozen due to their relative stability over the last three decades compared to the full-scale wars these regions endured at the beginning of the 1990s. However, since this research project began in 2021, these frozen conflicts have experienced unexpected and drastic changes. The de facto state of Nagorno-Karabakh was conquered by Azerbaijan in 2023 and has officially ceased to exist, and the situations in South Ossetia, Abkhazia, and Transnistria are more uncertain than ever due to the war started by the Russian Federation (henceforth Russia) against Ukraine in 2022. The situation in Ukraine has also been labelled a frozen conflict since the 2010s, referring mainly to the region of Donbas and sometimes to Crimea. Since Russia’s full-scale invasion in February 2022, however, the term ‘frozen conflict’ has mainly been used to describe — S. 2 —possible future scenarios.² The President of Ukraine, Zelenskyy, has repeatedly stated that he does not want Ukraine to enter another frozen conflict with Russia.³

The last years have demonstrated better than ever that a frozen conflict is not a permanent state but a highly dynamic one. These years have also shown that the topic merits particular and careful attention. Yet, in contrast to the term’s wide use, conceptual approaches to frozen conflicts have been selective. And here lies the problem. The label seems to easily describe situations somewhere between war and peace, but when these are examined more closely, systematically characterizing the nature of these conflicts remains challenging. Many questions arise, for instance whether this term is a purely decorative metaphor or an academic term of art and whether this is a post-Soviet phenomenon or unlimited in time and space. Few academics have attempted to systematically conceptualize frozen conflicts, especially in international law. The present thesis aims to account for this disjuncture by retaining awareness of the material reality of frozen conflicts.

II.Problematization and Research Question

International law has shown little interest in the topic of frozen conflicts. Although the term has been applied by state officials, parliaments, international and regional organizations, and international legal writers and is somewhere ‘at the edges of legal discourse’,⁴ conceptual approaches to frozen conflicts as a legal issue have been rare. When lawyers debate on situations labelled frozen conflicts, they typically focus on one specific legal aspect, such as the right to self-determination in the post-Soviet space,⁵ the legality of extraterritorial mass naturalization in Russia’s ‘passportization’ policy,⁶ the acceptance of the uti possidetis juris principle by Russia in the post-Soviet — S. 3 —space,⁷ the classification of specific conflicts as international or non-international armed conflicts,⁸ remedying human rights violations that occur in the regions affected by frozen conflicts,⁹ and financial investments in frozen conflict zones.¹⁰ However, they do not deal with the overall phenomenon as a distinct legal research issue or examine the characteristics that constitute the frozen state of these conflicts. This neglect might be because ‘frozen conflict’ is not a precise legal term of art. The concept remains elusive and most likely has no direct legal implications. Accordingly, the term has not yet been employed in international treaties nor by international tribunals. Lawyers may therefore infer that it is merely a political phenomenon with no relevance to legal analysis. We think this conclusion falls short.

Indeed, the phenomenon of frozen conflicts is complex and challenges the binary logic of law, by which cases are either included in or excluded from a category entailing particular legal consequences. Frozen conflict is a concept that implies ambiguities. It blurs the boundaries of war and peace, international and non-international armed conflicts, ius ad bellum and ius in bello, states and nonstates, and law and politics. But the fact that it does not fit neatly into any of these categories does not diminish its relevance to legal thought. In fact, several other phenomena and material realities that initially did not fit into legal categorizations have eventually been included in legal discourse, for instance ‘de facto state’, ‘asymmetric warfare’, and ‘responsibility to protect’ (R2P). All of these concepts could be considered political because they do not neatly fit existing and undisputed legal categories. Yet, according to Koskenniemi, it is not the nature of the object in question that determines whether it is a political or legal issue, but the conceptual perspective from which we observe it.¹¹ Thus, should we ask whether frozen conflicts are invisible or whether international law is blind?

Instead of rigidly excluding frozen conflicts from legal thinking due to their ambiguity, a more interesting approach is to more closely examine the — S. 4 —relationship between international law and frozen conflicts and to reflect on the discipline’s limitations when dealing with ambiguous phenomena. The research question of this thesis is therefore as follows: what relationship does international law have with frozen conflicts? Addressing this question allows a holistic approach that encompasses various levels of the complex relationship between the discipline and the concept of frozen conflicts. This approach obviates the need for a legal definition of ‘frozen conflicts’ or its promotion as a legal term of art. The levels of the relationship include, firstly, the term ‘frozen conflict’; secondly, the actual situations that are referred to as frozen conflicts; and, finally, the conceptual and structural localization of the frozen conflict concept within the legal landscape.

The project presents several novel findings. First, it provides empirical findings on the use of the term ‘frozen conflict’, which has not previously been explored either by legal scholars or scholars from other disciplines. Second, it gains new insights into the conflicts in South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh: the conflicts are examined holistically in a quest to identify legal circumstances that mark their deadlocked nature. An attempt to translate their frozenness into legal terms has not yet been pursued. The emphasis on the combination of legal characteristics with the specific historical context in which they emerged is another novel aspect. To remain with the metaphor, the thesis shows that a particular political climate is needed to freeze a conflict. Third, no work has yet examined more broadly the relationship between international law and frozen conflicts. Normally research projects on the topic of frozen conflicts wind up considering them not, or not primarily, a legal issue without further exploring the alleged mismatch between international law and frozen conflicts. The present thesis addresses this unexplored area. It takes frozen conflicts as an opportunity to observe how the inherently dichotomous logic of international law mechanisms limits their capacity to tackle ambiguities. Although research has examined the problems of rigid dichotomies in international law, no such observations have been made regarding the concept of frozen conflicts. The findings presented here show that the ambiguity of the concept merits particular attention from international law and contributes overall to greater legal sensibility to frozen conflicts and to the scrutiny of legal dichotomies.

III.Plan of the Book and Method

Examining the relationship of international law and frozen conflicts requires looking at several levels. Correspondingly, this book is divided into four parts. Each part includes distinct methodological elements. Following this introduction, Part I investigates the term ‘frozen conflict’. Key questions include when the term emerged, who uses it, and which cases are most frequently referred to as frozen conflicts. Furthermore, it presents attempts to conceptualize and define the term in international law and other disciplines. Finally, it introduces other legal concepts that are connected to frozen conflicts. The core of this part consists of an empirical analysis of the term’s usage. The method applied is thus primarily an empirical study of when the term ‘frozen conflict’ emerged. Moreover, the empirical study identifies the users of the term and the cases most frequently labelled frozen conflicts. These are South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh, which justifies the selection of these four cases for the subsequent case study and highlights the significance of their post-Soviet context.

Parts II and III present a case study that examines the conflicts in these four regions. Part II provides an overview that discusses the regions’ history and recent developments. In Part III, an analysis of the cases follows that examines their common legal characteristics. The question in Part III concerns what the legal characteristics of frozenness are. The aim is to approach the conflicts through the term ‘frozen’ and to uncover the underlying legal dilemmas that contribute to their state being perceived as frozen. Some points need to be noted about the methodological approach of the case study that are relevant to the entire thesis. First, the situation in Nagorno-Karabakh changed drastically in 2023. References to the situation in Nagorno-Karabakh throughout the book refer to the period before 2023 unless otherwise noted. Second, the purpose of presenting the legal characteristics of frozen conflicts is to enable consideration of the phenomenon as a legal concept in a broader sense, similar to a legal idea or legal topic. The aim is not to formulate a legal definition of the concept of frozen conflict with clear boundaries. No set of legal characteristics will be outlined for defining a frozen conflict. In cognitive science, this approach is called the classic concept structure, in which ‘inclusion into this concept is a dichotomous matter of being either in or out’.¹² Consequently, if one characteristic from this set is missing, the situation falls short — S. 6 —of the definitional requirements. Thinking of frozen conflicts as a dichotomous concept misses the essence of the phenomenon, which inherently blurs conceptual boundaries, particularly those in the realm of law. Therefore, this thesis follows the approach that cognitive science calls the ‘family resemblance concept’.¹³ Following this logic, no characteristic might be shared by all category members, but certain similarities connect them to one another: ‘if one trait is missing, then the presence of some other substitutable attribute is enough for the situation to meet the definitional requirements.’¹⁴ Qualifying a situation as a frozen conflict can thus be a question of continuous degree rather than rigid dichotomy. Accordingly, situations can also be ‘better’ or ‘worse’ members of the frozen conflicts category. Following this methodological approach is legitimate¹⁵ because ‘frozen conflict’ is a descriptive legal concept, as opposed to a legal concept in the narrow sense of a legal term of art that entails concrete legal consequences.

Part IV situates the frozen conflict concept within the legal landscape. Special attention is paid to dichotomies in international law that are blurred by frozen conflicts. The concept can be placed somewhere between the dichotomies of war and peace and of law and politics. Analogies with other ambiguous concepts that are situated between dichotomies in international law will support this analysis. Finally, the strengths and weaknesses of frozen conflicts as a legal concept will be discussed. The approach in this part is primarily a comparative analysis of various legal concepts. The book concludes with a summary and outlook.