Frozen Conflicts in International Law

IV.Proliferation

The final characteristic critical to the concept of frozen conflicts is their proliferation. Part I of this work already described how the term ‘frozen conflicts’ originated in the 1990s, after the dissolution of the Soviet Union. The empirical analysis of UN documents also revealed that the term is unequivocally applied to the cases of South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh. This finding highlights the proliferation of frozen conflicts within the post-Soviet space; it also suggests that the phenomenon is not universal but typical of a certain time and region. However, as also mentioned in Part I, Smetana et al. in their comprehensive conceptualization of frozen conflicts explicitly rejected a spatial and temporal approach and identified 42 cases around the globe from 1946 to 2011.⁷⁶⁸ They aimed explicitly to ‘overcome’ the common understanding of frozen conflicts as a contemporary phenomenon in the post-Soviet space.⁷⁶⁹ Contrariwise, this chapter defends the position that it is valid to restrict the concept to the post-Soviet space, and that this context is even a crucial characteristic of frozen conflicts; the chapter provides historical and legal arguments to bolster this view.

A.Frozen Conflicts as a Pattern

Conflicts can be analysed both individually and as parts of a network of interconnected disputes. When analysing them individually, we can find other conflicts that are characterized by the three aspects discussed above: mutually exclusive territorial claims, the significance of the time factor, and the low intensity of the conflict. For example, the conflict in Northern Cyprus is often compared to the post-Soviet frozen conflicts in legal literature and jurisdiction and has thus also been labelled a frozen conflict.⁷⁷⁰ The parallels between Northern Cyprus and the cases above are evident: in Northern Cyprus, the Turkish Republic of Northern Cyprus (TRNC) has existed since 1983 as a de facto state supported by Turkey as its patron state. As in the post-Soviet frozen conflicts, the factual situation on the ground continuously violates the territorial integrity of the parent state, the Republic of Cyprus.⁷⁷¹ Over time, the TRNC has consolidated its status, making a resolution of the dispute extremely unlikely.⁷⁷² An example of this consolidation is its achievement of observer state status in the Organization of Islamic Cooperation (OIC).⁷⁷³ Moreover, consolidation can be seen in the way the ECtHR has dealt with the property rights of displaced persons. It noted the difficulties displaced persons faced when returning to their homes in Northern Cyprus: properties abandoned during the conflict have by now been occupied by others for decades, rendering the original title to the property ‘empty of any practical consequences’.⁷⁷⁴ Finally, the initial armed conflict⁷⁷⁵ following Turkey’s invasion of the island — S. 110 —in 1974 was of short duration and has been followed by an enduring conflict of low intensity. Although there have been no armed hostilities, the presence of 30,000 to 40,000 Turkish troops⁷⁷⁶ constitutes a belligerent occupation⁷⁷⁷ and presents a constant threat. The low intensity of the conflict is also manifest in human rights violations, particularly regarding property rights, and finally the displacement of thousands of people. Between 1963 and 1974, approximately 160,000 Greek Cypriots and 45,000 Turkish Cypriots were displaced,⁷⁷⁸ leading to demographic changes in both the Republic of Cyprus and Northern Cyprus.⁷⁷⁹

Interestingly, despite these notable parallels and frequent comparisons between Northern Cyprus and the post-Soviet frozen conflicts in legal literature and jurisdiction, the empirical analysis in Part I reveals different results. The findings presented there show that after South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh, the conflicts most frequently referred to as frozen conflicts are those in Ukraine, Kosovo, South Sudan, and Israel–Palestine. Cyprus only ranks ninth, being mentioned as affected by a frozen conflict only five times within the 200 UN documents analysed. The example of Northern Cyprus reveals a discrepancy in the perception of the conflict as a frozen one, between the legal literature and jurisdiction on the one hand and the use of the term evident in the UN documents on the other. It follows that there is an inconsistency in determining whether—and, if so, which—conflicts beyond the post-Soviet sphere should be considered frozen.

This inconsistent application of the term beyond the post-Soviet context highlights the importance of the consensus on the four original frozen conflicts. And there is no hiding the fact that these four conflicts are all located in the post-Soviet space. Thus, when viewed collectively, the wider network gains relevance: they all emerged from the same historical event, the dissolution of the Soviet Union, and are decisively shaped by the latter’s successor state, Russia. Moreover, the empirical analysis in Part I showed that following South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh, the conflict most frequently referred to as frozen is in Ukraine. This is largely due to the fact that it shares the same historical background with the four cases. Therefore, — S. 111 —we argue that it is important to examine frozen conflicts as part of a broader phenomenon, a pattern, rather than as isolated or individual cases. Analysing these conflicts together requires a deeper examination of Russia’s involvement and its approaches to international law.

B.Russian Approaches to International Law

Despite earlier acts of aggression, Russia’s policies towards states of the former Soviet Union have become most clear with its invasion of Ukraine in 2022. The full-scale invasion in Ukraine can be viewed as the culmination of a longstanding policy, evident in earlier events such as the war on Georgian territory in 2008, the annexation of Crimea in 2014, and the frozen conflicts addressed in this work. Here, instead of analysing Russia’s policies, the aim is to translate these policies into legal terms and to examine how they characterize frozen conflicts.

According to Mälksoo’s theory, Russia’s government and supportive experts in international legal academia have inconsistent approaches to international law that also diverge from Western approaches in various ways.⁷⁸⁰ Mälksoo described patterns of post-Soviet Russian state practice in three subfields: Russia’s approaches to European and international human rights law, to international economic law, and to jus ad bellum.⁷⁸¹ For the analysis of frozen conflicts, the approach to jus ad bellum is of particular importance because it is directly connected with Russia’s thinking on territorial entitlement rights.⁷⁸² In fact, Russia’s approach to the use of force and territorial rights is inconsistent and depends on the geographical location of the disputed territory.

Russia takes a strict view on the use of military force in territories within its borders, considering it legal only when carried out in self-defence against armed attack or authorized by the UNSC.⁷⁸³ Accordingly, Russia has strictly abided by the principle of uti possidetis and clearly prioritized its own sovereignty over the self-determination of people when its own territory was threatened, as seen in its brutal suppression of independence movements in Chechnya or Ingushetia.⁷⁸⁴ In the same line of argument, Russia has consistently rejected Western attempts to legalize or legitimize humanitarian interventions such as the NATO intervention in Kosovo in 1999.⁷⁸⁵ Russia saw a risk — S. 112 —that the international community might respond similarly in Chechnya, where Russia had previously used military force against the separatists to protect its territorial integrity.⁷⁸⁶

In contrast, Russia’s approach to the territories of former Soviet republics is permissive of the use of force and alterations of territorial titles. Russian military and paramilitary forces and volunteers supported South Ossetia and Abkhazia in seceding from Georgia, and Transnistria from Moldova.⁷⁸⁷ In Nagorno-Karabakh, Russia helped Armenia realize the region’s secession from Azerbaijan.⁷⁸⁸ There, Russia had no territorial interests of its own, but aimed to secure its influence over both the Armenian and the Azerbaijani sides.⁷⁸⁹ As a consequence, ‘in these territories, frozen conflicts were born and the de facto situation on the ground differed from the situation de jure.’⁷⁹⁰ In other words, while Russia uses military force to suppress secessionist movements within its own borders, it actively supports such movements in the neighbouring and nearby states of its ‘near abroad’. The term ‘near abroad’ has been used since the beginning of the 1990s and means a ‘politicized geographic space where Russia has special interests and influence and that appears, in effect, to be a space of particular contested, conditional, and hierarchal sovereignties’.⁷⁹¹ In this near abroad, Russia’s stance on the prohibition of the use of force is permissive, particularly when arguing for the protection of its nationals living in these regions and as far as its own actions are concerned. With the independence of the former Soviet republics, hundreds of thousands of ethnic Russians suddenly became minorities in foreign states.⁷⁹² Russia’s policy of extraterritorial mass naturalizations has produced even more Russian citizens,⁷⁹³ which has helped leverage the argument of protecting nationals abroad. However, the protection of nationals abroad is generally not regarded as a valid justification to intervene in other states and use force.⁷⁹⁴

Russia’s inconsistent approaches to these legal principles can be traced back to the dual challenges it faced following the dissolution of the Soviet Union. First, Russia was weak in the 1990s, and there was a real possibility that Russia might disintegrate as the Soviet Union had.⁷⁹⁵ Its territorial integrity was threatened by separatist movements in Chechnya, and, to a lesser extent, in Tatarstan and Bashkiria.⁷⁹⁶ Second, the new sovereign states emerged within what had historically been Russia’s sphere of influence, a perception rooted in both the Soviet era and the earlier Russian Empire. Russia struggled to cope with the loss of its previous influence and control over these territories.⁷⁹⁷ In particular, these newly independent states grew more self-assured and began aligning themselves with powers other than Russia. In Russia’s understanding of international law, it is still a great power and has special rights and prerogatives in the post-Soviet space, for historical, geographical, cultural, linguistic, and even religious reasons.⁷⁹⁸ This approach mirrors the Brezhnev Doctrine of the Soviet era, which considered the Soviet Union’s intervention in other socialist countries as justified if their actions threatened to diverge from communism.⁷⁹⁹

Frozen conflicts are the best illustration of Russia’s opportunistic arguments, which do not follow one overarching legal principle but reflect changing power politics.⁸⁰⁰ Russia’s relationship with Georgia, Moldova, and Ukraine has rarely been determined by international law; instead, Russia has fostered vassal-like relationships with these states.⁸⁰¹ Russia uses and abuses legal rhetoric to justify its efforts to consolidate hegemony over its near abroad, bolstering its influence by supporting the de facto states of South Ossetia, Abkhazia, and Transnistria that are aligned with its interests.⁸⁰² Notably, Nagorno-Karabakh does not perfectly fit this pattern of Russian influence and cannot be directly compared with the others in this respect. As previously discussed, Russia’s agenda has remained ambiguous in this conflict. Traditionally, it has been the protecting power of Armenia; however, it — S. 114 —has sold weapons to both Armenia and Azerbaijan⁸⁰³ and successfully brokered the ceasefire agreement in 2020. However, the cases of the Donetsk People’s Republic and the Luhansk People’s Republic in eastern Ukraine are comparable to South Ossetia, Abkhazia, and Transnistria. With Russia’s support, these two regions were de facto states between 2014 and 2022, thus violating Ukraine’s territorial integrity. Shortly before it invaded Ukraine in 2022, Russia recognized their independence. The pattern is basically the same as in South Ossetia, Abkhazia, and Transnistria, though in the cases of Donetsk and Luhansk, Russia went further by declaring their merger into Russia. The war against Ukraine is another instance of Russia’s approach to international law, albeit one of unprecedented audacity: president Putin has attempted to justify the full-scale war with the protection of Russian citizens from genocide.⁸⁰⁴ Russia neglects the fact that the former Soviet Republics are international legal subjects that can make choices themselves, such as joining NATO or the EU, and that it should not be the one giving guarantees for them.⁸⁰⁵ Mälksoo also stressed the fact that Russia’s approaches to international law are embedded in a wider opposition to the West that is bigger than communism as an ideology ever was.⁸⁰⁶ It is this wider political background against which frozen conflicts must be examined also when taking an international law perspective.

C.Other Approaches and the Language of International Law

Whereas substantial research has been conducted by Western legal scholars on Russia’s instrumental approach to using or ‘vulgarizing’ the language of international law in frozen conflicts and when annexing Crimea in 2014,⁸⁰⁷ little research has focused on other post-Soviet states’ stances in relation to it. In contrast with Russia, Georgia and Ukraine, for example, have been regarded as ‘passive objects rather than active subjects’; thus how these states respond — S. 115 —to Russia’s lines of legal argument has often been overlooked.⁸⁰⁸ Wittke filled this research gap when finding that, as a response, these states have pursued another strategy: they turned to ‘lawfare’ as a form of self-defence by referring aspects of the conflicts to bodies of international organizations such as the UNSC, UNGA, ICJ, and ECtHR in a quest for confirmation of their equality as sovereign states.⁸⁰⁹ In contrast, Russia has never applied to the ICJ; neither did its predecessor, the Soviet Union.⁸¹⁰ This strategy of Georgia, Moldova, Azerbaijan, and Ukraine can be regarded as partly successful, because international bodies have repeatedly confirmed their territorial integrity and have also judged Russia responsible for human rights violations in the disputed and occupied regions given its effective control.

Although they follow different approaches, both parties use the language of international law to frame their arguments in terms of rights, aiming to underline their objectivity. During the Georgian–Russian war of 2008, for example, unsurprisingly, ‘all sides declared their own actions to be “defensive”’⁸¹¹ and thus in accordance with international law, particularly the UN Charter. Russia and Georgia each accused the other of committing genocide or ethnic cleansing in South Ossetia and Abkhazia.⁸¹² Thus, instead of providing a common language or instrument for settlement, law is used to continue politics and warfare.⁸¹³ Despite long-term efforts to settle frozen conflicts through international mediation and formalized political settlements, they remain unresolved.⁸¹⁴ However, Russia is not alone in exhibiting inconsistencies when translating policy into legal arguments. Other hegemonic powers could similarly be examined to identify such recurring patterns of inconsistency. For example, referring to Crimea in 2014, Milanovic wrote on the inconsistency in Western approaches to international law, stating that

those same Western states that unlawfully invaded Iraq, and supported Kosovo’s secession from Serbia while endlessly repeating that Kosovo was somehow a really super-special sui generis case, are now pontificating about the sanctity of the UN Charter and territorial integrity. On the other hand, that same Russia — S. 116 —that fought two bloody wars in the 1990s to keep Chechnya within its fold, that same Russia that to this day refuses to accept the independence of Kosovo, has now rediscovered a principle of self-determination that apparently allows for the casual dismemberment of existing states.⁸¹⁵

According to Koskenniemi, expressing political preferences in the language of rights and duties is typical of hegemonic contestation, in which military actions are presented as universal and objective.⁸¹⁶ Having said this, some conclusions can be drawn: first, due to its selective approach to the uti possidetis principle and territorial integrity, Russia supports the de facto states of South Ossetia, Abkhazia, and Transnistria and thereby perpetuates their frozen conflicts. Although Nagorno-Karabakh has the same historical background, Russia’s approach to this region cannot be shown to be exactly similar. Second, it is common for states, particularly hegemonic powers, to have their own approaches to international law, to formulate political preferences in the language of law, and to show inconsistencies in doing so. Frozen conflicts are thus merely an example of Kennedy’s theory that international law is different in different places.⁸¹⁷