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Secessionist Entities and International Law
The South Caucasus Disputes between Self-Determination, Territorial Integrity, and the Quest for a European Engagement Policy
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This book examines secessionist entities that arose during and after the dissolution process of the USSR and considers them as legal subjects in their own right. By employing a novel and more innovative approach, the agency of these subjects, otherwise often ignored or disregarded, is taken into account. Drawing on the cases of the South Caucasus, the author suggests going beyond the binary concept of statehood and traditional notions of sovereignty. He advocates embracing an inclusive reading of international law, which enables to foster creative ambiguity vis-à-vis these entities as means of conflict transformation.
Benedikt C. Harzl is Associate Professor and Deputy Director of the Centre of East European Law and Eurasian Studies at the University of Graz. In 2024, he was the Botstiber Professor at the University of California, Berkeley. He has published and co-edited on legal issues in the post-Soviet space, including
Unrecognized Entities (Brill | Nijhoff, 2022).
Abbreviations
1 Introductory Remarks and Structure
2 Approaching Secession
1 Secession: Paradigms of Legality and Legitimacy
2 Political Expediency as a Weak Argument
3 The Two Main Objectives of This Work
4 Definitions and Approaches
4.1 Defining ‘Secession’
4.2 Situations beyond the Ambit of Secession
4.3 Differentiation: Non-consensual Dissolution of States
4.4 Expository and Evaluative Approaches
4.5 A Methodology of ‘Law Plus …’
4.6 ‘Law Plus …’ Applied
5 Secession: A Play in Three Acts
5.1 Secession and the Contentious Question of Territorial Integrity
5.1.1 Undermining from Inside
5.1.2 Undermining from Outside
5.2 A Right to Secession in International Law?
5.3 Secession, Secessionist Entities, and State-Building
3 The Object of Investigation: The Secessionist Entity
1 Some Preliminary Notes on the Choice of Terminology
2 The Dilemma of Political Framing
4 De Facto Independence and Its Repudiation
5 Formal Declaration of Independence and Authentic Grievance
6 The Absence of Recognition
7 Consolidated Existence over Significant Time
8 Disputed Facts
4 The Appeal of Statehood in the Context of Secessionist Conflicts
5 The Appeal of Law: Articulation of Interests in Legal Vocabulary
1 International Law as a Level Playing Field and Its Principles’ Open-Endedness
2 Legitimacy as Substructure of a Legal Claim: Territorial Grievance
3 Scholarly and Political Coverage of the Problem
3.1 Problematic Paradigms in Legal Scholarship
3.2 Problematic Paradigms in
ir
Theory
6 The Conflicts of the South Caucasus in Focus
1 How these Conflicts Are Addressed by the Scholarly Community
2 The South Caucasus Conflicts: A Short Biography
2.1 On the Selection of Cases
2.2 Abkhazia
2.2.1 Selected Conflict Factors and Escalation
2.2.2 Attempts at Conflict Management
2.3 South Ossetia
2.3.1 Selected Conflict Factors and Escalation
2.3.2 Attempts at Conflict Management
2.4 Nagorno-Karabakh
2.4.1 Selected Conflict Factors and Escalation
2.4.2 Attempts at Conflict Management
7 The Self-determination vs. Territorial Integrity Paradigm
1 Introductory Remarks: The Collision of Two Values
2 The Deceptive Promise of Self-determination
2.1 Introduction
2.2 The ‘Self’ of the Secessionists
2.3 Secessionist Entities Through the Prism of National Minorities
2.4 The Substance of Self-determination: Imprecise Parameters
2.4.1 Introductory Thoughts
2.4.2 The National Minorities Avenue
2.4.3 Secession as Primary or Remedial Right?
2.5 The Fallacy of Remedial Secession
2.5.1 The Perception of Intolerable Coexistence
2.5.2 Insufficient Reflection in International Law and Arbitrariness
2.6 Preliminary Conclusion: Self-determination and Secessionist Entities
3 The Deceptive Promise of Territorial Integrity
3.1 Introduction
3.2 A Fuzzy Principle: Non-intervention in Secessionist Conflicts
3.2.1 External Intervention in International Law: Procuring Secessionist Statehood
3.2.2 Territorial Integrity and Secessionist Entities: Profound Limitations
3.3 A Special Problem: Humanitarian Intervention
3.4 A Special Problem: ‘Confined to the Relations among States’? The Fallacy of Doctrinal Purity
3.5 The Special Problem of Uti Possidetis
3.6 The Special Problem of Kosovo and Its Implications for the South Caucasus
3.7 Preliminary Conclusion: Territorial Integrity and Secessionist Entities
8 The South Caucasus Cases and the Self-determination vs. Territorial Integrity Paradigm: Selected Questions Problematized
1 Introductory Thoughts
2 Secession’s Fertile Soil: (In)applicable Legal Provisions and the ‘Soviet’ West Virginian Concept
3 Uti Possidetis: State Boundaries Amidst Conflicting Narratives
4 The Timing of Applicability of Territorial Integrity in the South Caucasus
5 Disputes about Violation of Territorial Integrity: Contentious Attribution
6 The Profound Accusation of ‘Puppet States’
9 A Subject in Its Own Right: The Case for a European Engagement
1 Introduction
2 Controversial but Existing Legal Status
2.1 The Futility of the Declaratory vs. Constitutive Approach of Recognition
2.2 Secessionist Entities and Their Discernible Existence
2.3 Going beyond the Deadlock
3 Conditions of Engagement
3.1 Introduction: Setting the Stage for Engagement
3.2 Inaccurate Dichotomies: State-Building vs. Non-state-building Measures
3.3 Outer Boundaries in Two Directions
3.4 Refugees and
idp
s
3.5 Addressing Ethnic Diversity
3.6 Democratic Governance: Internal Legitimacy
3.7 Continued Dialogue with the Metropolitan State
3.8 The Functionalist Philosophy behind Engagement without Recognition: Moving beyond the Non Liquet Fallacy
10 Conclusion
Bibliography
Case Law, Legislation, Other Legal Acts
Index
1 Introductory Remarks and Structure
2 Approaching Secession
1 Secession: Paradigms of Legality and Legitimacy
2 Political Expediency as a Weak Argument
3 The Two Main Objectives of This Work
4 Definitions and Approaches
4.1 Defining ‘Secession’
4.2 Situations beyond the Ambit of Secession
4.3 Differentiation: Non-consensual Dissolution of States
4.4 Expository and Evaluative Approaches
4.5 A Methodology of ‘Law Plus …’
4.6 ‘Law Plus …’ Applied
5 Secession: A Play in Three Acts
5.1 Secession and the Contentious Question of Territorial Integrity
5.1.1 Undermining from Inside
5.1.2 Undermining from Outside
5.2 A Right to Secession in International Law?
5.3 Secession, Secessionist Entities, and State-Building
3 The Object of Investigation: The Secessionist Entity
1 Some Preliminary Notes on the Choice of Terminology
2 The Dilemma of Political Framing
4 De Facto Independence and Its Repudiation
5 Formal Declaration of Independence and Authentic Grievance
6 The Absence of Recognition
7 Consolidated Existence over Significant Time
8 Disputed Facts
4 The Appeal of Statehood in the Context of Secessionist Conflicts
5 The Appeal of Law: Articulation of Interests in Legal Vocabulary
1 International Law as a Level Playing Field and Its Principles’ Open-Endedness
2 Legitimacy as Substructure of a Legal Claim: Territorial Grievance
3 Scholarly and Political Coverage of the Problem
3.1 Problematic Paradigms in Legal Scholarship
3.2 Problematic Paradigms in
6 The Conflicts of the South Caucasus in Focus
1 How these Conflicts Are Addressed by the Scholarly Community
2 The South Caucasus Conflicts: A Short Biography
2.1 On the Selection of Cases
2.2 Abkhazia
2.2.1 Selected Conflict Factors and Escalation
2.2.2 Attempts at Conflict Management
2.3 South Ossetia
2.3.1 Selected Conflict Factors and Escalation
2.3.2 Attempts at Conflict Management
2.4 Nagorno-Karabakh
2.4.1 Selected Conflict Factors and Escalation
2.4.2 Attempts at Conflict Management
7 The Self-determination vs. Territorial Integrity Paradigm
1 Introductory Remarks: The Collision of Two Values
2 The Deceptive Promise of Self-determination
2.1 Introduction
2.2 The ‘Self’ of the Secessionists
2.3 Secessionist Entities Through the Prism of National Minorities
2.4 The Substance of Self-determination: Imprecise Parameters
2.4.1 Introductory Thoughts
2.4.2 The National Minorities Avenue
2.4.3 Secession as Primary or Remedial Right?
2.5 The Fallacy of Remedial Secession
2.5.1 The Perception of Intolerable Coexistence
2.5.2 Insufficient Reflection in International Law and Arbitrariness
2.6 Preliminary Conclusion: Self-determination and Secessionist Entities
3 The Deceptive Promise of Territorial Integrity
3.1 Introduction
3.2 A Fuzzy Principle: Non-intervention in Secessionist Conflicts
3.2.1 External Intervention in International Law: Procuring Secessionist Statehood
3.2.2 Territorial Integrity and Secessionist Entities: Profound Limitations
3.3 A Special Problem: Humanitarian Intervention
3.4 A Special Problem: ‘Confined to the Relations among States’? The Fallacy of Doctrinal Purity
3.5 The Special Problem of Uti Possidetis
3.6 The Special Problem of Kosovo and Its Implications for the South Caucasus
3.7 Preliminary Conclusion: Territorial Integrity and Secessionist Entities
8 The South Caucasus Cases and the Self-determination vs. Territorial Integrity Paradigm: Selected Questions Problematized
1 Introductory Thoughts
2 Secession’s Fertile Soil: (In)applicable Legal Provisions and the ‘Soviet’ West Virginian Concept
3 Uti Possidetis: State Boundaries Amidst Conflicting Narratives
4 The Timing of Applicability of Territorial Integrity in the South Caucasus
5 Disputes about Violation of Territorial Integrity: Contentious Attribution
6 The Profound Accusation of ‘Puppet States’
9 A Subject in Its Own Right: The Case for a European Engagement
1 Introduction
2 Controversial but Existing Legal Status
2.1 The Futility of the Declaratory vs. Constitutive Approach of Recognition
2.2 Secessionist Entities and Their Discernible Existence
2.3 Going beyond the Deadlock
3 Conditions of Engagement
3.1 Introduction: Setting the Stage for Engagement
3.2 Inaccurate Dichotomies: State-Building vs. Non-state-building Measures
3.3 Outer Boundaries in Two Directions
3.4 Refugees and
3.5 Addressing Ethnic Diversity
3.6 Democratic Governance: Internal Legitimacy
3.7 Continued Dialogue with the Metropolitan State
3.8 The Functionalist Philosophy behind Engagement without Recognition: Moving beyond the Non Liquet Fallacy
10 Conclusion
Bibliography
Case Law, Legislation, Other Legal Acts
Index
Scholars and practitioners in the field of international and European law as well as international relations. Scholars of post-Soviet area studies and post-graduate students.