Frozen Conflicts in International Law

Part III: Case Study—Analysis

Following an overview on the history and recent developments of the four frozen conflicts, the present part focuses on their legal analysis, answering the following question: what common legal characteristics portray the conflicts’ frozenness? The aim is to approach the conflicts from the term ‘frozen’ and to uncover the legal dilemmas underlying their deadlocked nature. The aim is not to offer a legal definition with a set of criteria that need to be met to qualify as a frozen conflict. Neither is the aim to answer all the legal questions that arise from the situations, such as which law is applicable, which norms have been breached, what conflict resolution looks like, and so forth. These points have been discussed elsewhere and do not particularly deal with the fact that the conflicts are considered frozen. The aim is to translate what is perceived as frozen into legal terms. Four characteristics will be discussed: first, the core issue of the conflicts and mutually exclusive claims to territory; second, the time factor and its consequences; third, the low intensity of the conflicts; and fourth, the proliferation of frozen conflicts in the post-Soviet space and Russia’s interpretations of international law.

I.Core Issue

The core issue of frozen conflicts is the territorial status of the break-away regions. The separatists of South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh claim peoples’ right to self-determination to secede and establish an independent state. Conversely, Georgia, Moldova, and Azerbaijan invoke their territorial integrity, which includes the regions in question. International law favours the latter position but has not been capable of resolving the conflicts based on this consideration. De facto, the regions did secede and have become independent from the parent states. For three decades, the conflict parties have not managed to agree on final settlements on the regions’ status, because each insists on its territorial claims, regardless of their objective legal validity. Yet, these claims are mutually exclusive: the regions’ pursuit of self-determination conflicts with the parent states’ territorial integrity, and retaining this integrity means that the regions cannot — S. 66 —secede. Either one or the other principle must give way.454 This dilemma characterizes the deadlocked nature of frozen conflicts and requires examination.

A. Peoples’ Right to Self-Determination On one side of the mutually exclusive claims to territory in frozen conflicts lies the principle of peoples’ right to self-determination. This right is enshrined in article 1(2) and article 55 UN Charter, in UNGA Resolution 1514,455 and in article 1 of both the International Covenant on Civil and Political Rights456 and the International Covenant on Economic, Social and Cultural Rights.457 The right has also been affirmed by the OSCE in the Helsinki Final Act of 1975458 and in the Charter of Paris for a New Europe 1990.459 Two types of self-determination are distinguished: internal and external. The first entails the autonomy of a people through self-government, protectorate, trusteeship, or free association.460 The second is a ‘principle concerned with the right to be a state’,461 which can be achieved through secession from a parent state. Although no international legal document addresses this distinction, the consensus has emerged in case law that the right to external self-determination is granted only as ultima ratio, when the internal right to self-determination has been denied by the parent state.462 In fact, the applicability and implementation of external self-determination outside the original colonial context is complex, 454 Lea Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991)

Paper 2434 Yale Law School, Faculty Scholarship Series 177, 178.

455 UNGA, ‘Res 1514 (XV) (14 December 1960), UN Doc A/RES/1514’.

456 International Covenant on Civil and Political Rights (adopted 16 December 1966, en-

tered into force 23 March 1976) 999 UNTS 171.

457 International Covenant on Economic, Social and Cultural Rights (adopted 16 Decem-

ber 1966, entered into force 3 January 1976) 993 UNTS 3.

458 OSCE, ‘Helsinki Final Act of the Conference on Security and Cooperation in Europe,

Adopted 1 August 1975’.

459 OSCE, ‘Charter of Paris for a New Europe, Adopted 21 November 1990’.

460 Milena Sterio, ‘International Power Politics and Secession’ in Peter Radan, Aleksan-

dar Pavković and Ryan D Griffiths (eds), The Routledge Handbook of Self-Determination and Secession (Routledge 2023) 334–335.

461 James R Crawford, The Creation of States in International Law (2nd edn, Oxford Univer-

sity Press 2007) 107.

462 Important cases are Report of the International Committee of Jurists Entrusted by the

Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Questions (League of Nations Official Journal, Special Supplement No 3); Reference re Secession of Quebec (Supreme Court of Canada, 2 SCR 217); Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) (2010, ICJ Rep 403).

and in many respects it falls on the margins of political philosophy and evolving international law.⁴⁶³ Koskenniemi commented on this:

It is a paradoxical characteristic of a generally formulated right or a principle such as ‘self-determination’ that, stated in abstracto, it seems to convey a value that most people will immediately endorse. The more concrete it is made, however—that is, the more it is applied as a right of this or that entity—the more controversial it starts to appear, with the result, finally, that it becomes useless when it seems most needed: in a dispute about the boundaries of a particular ‘self’ against another.⁴⁶⁴

Accordingly, power politics significantly influence the outcome of external self-determination efforts, insofar as peoples that have successfully seceded have usually been supported by at least one great power.⁴⁶⁵ One famous and controversial example is the case of Kosovo in 2008. Moreover, despite the multiple layers of meaning associated with self-determination, such as the right to democratic participation, group rights, and certain additional human rights for minorities and for indigenous peoples, in the end the doctrine is simplistic and operates as an all-or-nothing approach that exacerbates conflicts rather than resolving them.⁴⁶⁶

In frozen conflicts, the separatists seek independence based on the right to self-determination.⁴⁶⁷ Several attempts at secession were expressed through unilateral declarations of independence at the beginning of the 1990s. The declaration of independence has a twofold function: it legitimizes the separatists’ claim, and it delegitimizes the parent state’s sovereignty over the territory in question.⁴⁶⁸ The right to self-determination has not been guaranteed — S. 68 —in any of the regions in this case study. Apparently, these four claims to external self-determination attracted no support—or not enough of it— from the great powers. In the cases that have received attention from the UN system, the territorial integrity and political unity of the states concerned has been reaffirmed, meaning that there is no right to secede. In none of the four cases has the UN system directly or indirectly supported the desire for independence—or even mentioned the term ‘self-determination’.⁴⁶⁹ Besides the territorial integrity of the parent states, the arguments against secession include the unlawful use of force by which the secessionists achieved control over the territories in the early 1990s,⁴⁷⁰ the lack of effectiveness of the putative states, given that effective control has been exercised by the patron states, and the question as to whether the regions’ populations qualify as peoples entitled to claim the right to self-determination, which is generally denied for Transnistria and Nagorno-Karabakh.⁴⁷¹

Yet it is important to emphasize the territorial meaning of the right to self-determination. Discussions on self-determination often concern the question of who constitutes a distinct people, but it is crucial to bear in mind that it is primarily a right to territory and a remedy for past injustices.⁴⁷² It connects identity to a specific place.⁴⁷³ The issue at the core of these frozen conflicts is the territory and the question of legitimate ownership of this piece of land. In the separatists’ view, sovereignty over the region in question has been built on unjust historical events—even though they themselves conquered the land by dubious and even unlawful means in the 1990s. A general question posed by Brilmayer is ‘the extent to which the status quo should be altered to rectify past wrongs’, considering that hardly any territorial boundary in the world would remain if all historical wrongs were corrected.⁴⁷⁴ Similarly, — S. 69 —Mladic, the convicted war criminal, observed that ‘borders have always been drawn with blood’.⁴⁷⁵

The relationship between self-determination and territory has changed over time: in the pre-classical era, from the nineteenth century to the Wilsonian era, self-determination could shape territories and move borders: people came first and territorial units were the consequence.⁴⁷⁶ In the classical era, which was introduced by the UN Charter and continues to this day, the relationship has flipped: territories exist and define the people that have a right to them.⁴⁷⁷ In particular through decolonization, self-determination has been tied to territory: ‘the existence of a distinct territory, physically separated from the metropolitan state’s territory … became a necessary condition for identifying a colonial people possessed of self-determination’.⁴⁷⁸ This shift from a people-first to a territory-first meaning of self-determination reduced the number of potential cases.⁴⁷⁹ South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh are not among those cases. They are within the continuous land borders of Georgia, Moldova, and Azerbaijan, which are protected by the principle of territorial integrity. However, this legal assessment has not hindered the regions from de facto secession and insistence on their self-determination. As long as they hold on to their territorial claims, backed by the de facto situation on the ground, each conflict is deadlocked.

B.Territorial Integrity

On the other side of the mutually exclusive claims to territory in frozen conflicts lies territorial integrity. The principle was introduced by article 2(4) UN Charter and further guaranteed in ensuing international instruments such as the Charter of the Organization of American States, the Helsinki Final Act of the OSCE, and the Constitutive Act of the African Union.⁴⁸⁰ According to the principle, a state’s territorial integrity is protected both against the use of force by another state and against internal threats.⁴⁸¹ Territorial integrity as — S. 70 —a legal norm emerged in the postwar era, coinciding with the establishment of the right to self-determination.⁴⁸² Before the outlawing of war, the concept of territorial integrity would have been an anachronism: only with the prohibition of the use of force and the parallel evolution of human rights was the term ‘integrity’ associated with territory.⁴⁸³

Yet, to protect its integrity, the territory first needs to be identified through boundaries. To define interstate borders, territorial integrity is complemented by the uti possidetis juris principle (henceforth uti possidetis). Stemming from Roman private law, uti possidetis was the praetor’s prohibition on disturbing an existing state of possession of immovables between two individuals.⁴⁸⁴ Originally invoked in the nineteenth century during the decolonization of Spanish America, the principle was also applied in the twentieth century during the decolonization of Africa. The principle holds that the legal title, rather than the effective possession of land, defines the borders and provides the basis for sovereignty.⁴⁸⁵ This means that when a new independent state emerges, its international borders are defined by the internal borders of the previous administration. According to the ICJ, the principle is general and applicable to all forms of decolonization wherever it occurs.⁴⁸⁶ Similarly to the right to self-determination, the uti possidetis principle was shaped most decisively in the context of decolonization. However, while uti possidetis has been applied to many situations beyond colonial contexts, self-determination has been applied more restrictively. The uti possidetis principle has notably also been applied to the post-Soviet space after the dissolution of the Soviet Union in 1991.⁴⁸⁷ It upgraded the boundaries between the first-level — S. 71 —territorial entities of the Soviet Socialist Republics (henceforth Union Republics) to the international boundaries of the new states.

The mutual exclusivity of the territorial claims can be illustrated by analysing the interplay of self-determination and uti possidetis. During the collapse of the USSR, these principles interplayed in two distinct ways: for the Union Republics, the uti possidetis principle aligns with the right to self-determination—they are mutually supportive.⁴⁸⁸ Therefore the Union Republics of Georgia, Moldova, and Azerbaijan were entitled to claim self-determination and to secede from the USSR, encompassing the entire territory defined by uti possidetis, which means within the boundaries of the former Union Republics. As a consequence, the principle of territorial integrity is ‘a corollary of the right to self-determination’ for the Union Republics.⁴⁸⁹ However, for the lower-level federalist units, the principles of self-determination and uti possidetis at the time of dissolution contradicted each other.⁴⁹⁰ Because South Ossetia, Abkhazia, Transnistria, and Nagorno-Karabakh did not constitute Union Republics at the time of dissolution, they were not entitled to self-determination. Instead, they were included within the boundaries of the Union Republics, defined by uti possidetis, and shared the fates of their parent states. A notable effort was made to avoid opening a Pandora’s box of debates about historical legitimacy and ethnic issues when defining the new state borders due to the inherent risk of provoking further conflict and even war.⁴⁹¹ The application of uti possidetis to the dissolution of the Soviet Union, beyond the colonial context, is contentious, because the principle is not codified in a universally binding treaty, nor is it clear whether it is a universally binding customary rule in processes of state dissolution.⁴⁹² Although the Russian SFSR has been considered by some a colonial power vis à vis the other former Soviet Republics, this view has never prevailed, and thus their secession had a different legal basis than decolonization.⁴⁹³

The rationale behind uti possidetis is to create stability and order and to prevent disruption.⁴⁹⁴ Characteristically, the principle does not assess the legitimacy of the boundaries it identified. In fact, it ignores however arbitrarily the boundaries have been defined,⁴⁹⁵ how many times they have changed throughout history, and whether a territory was acquired illegally under today’s law, given that according to the doctrine of intertemporal law, historical events are judged by the law in force at the time of their occurrence.⁴⁹⁶ Accordingly, uti possidetis provides no legal basis on which to justify the formation of a state; instead, these would be consent, self-determination, effectiveness, or historical title.⁴⁹⁷ The aim of the principle is precisely to end disputes about prior territorial illegality.⁴⁹⁸ Moreover, the principle is characterized by its provisional function. Uti possidetis is a temporary and transitional mechanism that provides a territorial delineation in the absence of special factors.⁴⁹⁹ It does not define a territorial boundary that can never be changed.⁵⁰⁰ The boundaries identified through uti possidetis provide a starting point for future negotiations or a fallback position that draws boundaries without any other agreement or principle to be followed.⁵⁰¹ However, without an agreement, the boundaries remain, and ‘the principle of uti possidetis freezes the territorial title; it stops the clock, but does not put back the hands’.⁵⁰² In Konnova’s words, ironically, ‘uti possidetis freezes a conflict’,⁵⁰³ which indicates the very essence of the frozen conflicts. In this vein, the doctrine has also been criticised for failing to achieve the actual rationale of avoiding conflicts.⁵⁰⁴

Once the boundaries of a new state are defined according to uti possidetis, the principle gives way to territorial integrity.⁵⁰⁵ Whereas uti possidetis defines the boundaries of the new state, territorial integrity subsequently protects the land against external and internal threads. In the state-centric — S. 73 —international law system, this protection gives territorial integrity predominance over self-determination.⁵⁰⁶ This predominance has been criticized by Peters: she argues that in a world where all land belongs to existing states, forming a new state necessarily affects another state’s territorial integrity, but not necessarily the right to self-determination of another people.⁵⁰⁷ Prioritizing territorial integrity makes the formation of new states practically impossible and thus renders the concept of a legal claim to statehood ultimately useless. Peters continues by observing that self-determination is jus cogens, whereas territorial integrity is not, and concludes that it protects human beings, whilst territorial integrity safeguards the state as such and therefore holds purely instrumental value.⁵⁰⁸ In support of this last point, in his separate opinion of the Kosovo Advisory Opinion of the ICJ, Judge Cançado Trindade criticized international law’s obsession with the ideas of state sovereignty and territorial integrity to the disadvantage of the states’ most crucial constitutive element of human beings.⁵⁰⁹ He stressed that ‘the raison d’état has limits, and the state is not an end in itself, but a means to secure the social order pursuant to the right reason, so as to perfect the societas gentium which comprises the whole of humankind (H. Grotius)’.⁵¹⁰ He concluded that after all, states exist for human beings and not vice versa.⁵¹¹

Despite these arguments, the territorial integrity of the parent state in a frozen conflict predominates over the claim to self-determination of the separatists. However, the de facto situation gives leverage to the claim to self-determination, even though it is unlawful. The mutually exclusive claims to territory coupled with the gap between the de facto and the de jure situation are characteristic of frozen conflicts. As a contrast, the case of Chechnya can be mentioned: there, separatists also aimed for self-determination, in conflict with the territorial integrity of Russia. However, the region never gained de facto independence but was forcibly reintegrated into Russia. Despite claims to self-determination that would affect Russia’s territorial integrity, the de jure and the de facto situation coincided, and therefore the conflict was never — S. 74 —called frozen. By the same argument, the present situation in Nagorno-Karabakh (since September 2023) is no longer a frozen conflict, because the claim to self-determination is no longer supported by the de facto situation.

C.Maximalist Positions

In these frozen conflicts, both the parent and the de facto states have maintained their maximalist positions: integration into a single state versus separation through secession. Compromises on the status of the territory have never really been discussed.⁵¹² Negotiations have typically concerned ceasefires, the definition of contact lines and grey zones, and the deployment or withdrawal of military personnel. The parties’ maximalist positions are reinforced by national or ethnic narratives that attach considerable importance to these specific pieces of land. Myths about who first inhabited the land are propagated in order to support the right to stay there today.⁵¹³ At the OSCE summit on the Nagorno-Karabakh conflict in Los Cabos in 2012, the joint statement of co-chairs also highlighted the maximalist positions of the parties and urged them to refrain from these as a sign of political will to resolve the conflict.⁵¹⁴ Similarly, the ICJ highlighted the failure to conduct negotiations in the 2011 case of Georgia against Russia,⁵¹⁵ which dealt with the events on Georgia’s territory in August 2008 under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).⁵¹⁶ The ICJ ruled that it lacked jurisdiction to hear the case, because Georgia did not fulfil the requirement to conduct negotiations with Russia beforehand,⁵¹⁷ as stipulated in article 22 of the CERD. The maximalist positions have become more consolidated the longer the conflicts have persisted and the more they have become embedded in the broader legal and political contexts. The local dimensions of the initial conflicts have been compounded by external tensions, transforming the conflicts in these regions into global rivalries.⁵¹⁸

Resolving frozen conflicts through compromise therefore seems unrealistic. Psychological factors also play a role. In fact, willingness to compromise has a bad reputation and is seen as a sign of weakness or lack of persistence.⁵¹⁹ Yet, Habermas argues that under certain circumstances moral reasons require compromises: if war cannot be avoided and ended by the international regime through sanctions and suchlike, then the alternative is the search for bearable compromises.⁵²⁰ At a certain point, so the argument goes, it is no longer reasonable to continue a war and to require the maximum, which would be a clear victory.⁵²¹ His plea for negotiations and compromise referred to the war in Ukraine, which by the time the article was published had persisted for one year with immense losses but no clear indication as to which side might prevail—and both sides, Russia and Ukraine, still pursued maximalist goals. Zanetti observed something similar when analysing the Truth and Reconciliation Commission of South Africa.⁵²² She stated that compromise in conflicts does not necessarily have to be fair; indeed, it need not even result in a good solution, simply one that is preferable to endless war or the collapse of society.⁵²³

Compromises are possible if the disputed issue is divisible or negotiable.⁵²⁴ For instance, whereas human rights are neither negotiable nor divisible, resources and income can be divided between parties.⁵²⁵ With territories, the situation is more complex. A territory can certainly be divided, because the state borders that limit territories are artificial and manmade, not natural or logical but pure social facts.⁵²⁶ However, international law is designed around state borders that protect the territory and sovereignty they define and indeed imply indivisibility. The principle of territorial integrity clearly supports the idea of the indivisibility of a territory. This understanding is rooted in the emergence of nation states in the nineteenth century, which often saw state territories compared with the human body.⁵²⁷ The language used for territory is brimming with traumatological metaphors: violation of territorial integrity, a break-away region, secession (from secedere—literally ‘go apart’), and recently, in the war in Ukraine, the loss of territory has been — S. 76 —described as resulting in an ‘amputated nation’.⁵²⁸ The understanding of territory as a body not only applies in today’s international law but is also crucial to the entire international order. Nevertheless, this widespread metaphor may well encourage intransigence and increase the risk that a territorial conflict enters a never-ending spiral of violence.⁵²⁹

A compromise in the frozen conflicts might consist of a ‘land-for-peace’ agreement: the secessionists would give parts of the territory they control back to the parent state and in return gain full recognition for the remaining part of the territory.⁵³⁰ Both sides would win and lose some land. The conclusion of such agreements is highly unrealistic and has not been debated. Given that parties retain their maximalist positions, it is much more probable that one of them will prevail over the other by the use of force, as Azerbaijan prevailed over Nagorno-Karabakh in September 2023. In frozen conflicts, the moral incentives for compromise are relatively weak compared to the moral considerations arguably present in the ongoing war in Ukraine. In the absence of a full-scale war and daily casualties, it seems more acceptable to maintain the status quo and insist on maximalist territorial claims. As a result, the conflict remains in deadlock. In Weller’s words, ‘when autonomy or federalization is not acceptable to one side and secession is not on the cards for the other, the option of a deferral of the issue comes to the fore. This allows both sides to retain their legal positions’.⁵³¹ Indeed, their insistence on maximalist positions is directly linked to the deferral of the issue, which can also be viewed as playing for time. In fact, the time factor is another characteristic that portrays the frozen state of the conflicts, as is discussed below.