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.