Final Conclusions

2021 ◽  
pp. 206-212
Author(s):  
Johannes Socher
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Self Determination ◽  
Legal Rhetoric ◽  
The West ◽  
Power Politics ◽  
State Practice ◽  
The Right ◽  
The Cold War ◽  
Fragmentation Of International Law

The book concludes with the suggestion that Russia’s approach to the right of peoples to self-determination may be best understood not only in terms of Russian power politics disguised as legal rhetoric but can be seen as evidence of traits of a regional (re-)fragmentation of international law. Even basic agreement on what self-determination as a concept of international law means and what role related concepts such as territorial integrity, secession, referendum, or the prohibition of the use of force do or should play in that context seems almost unattainable, to the effect that international law as a single epistemological frame is arguably in a similar danger as during Soviet times. Today, apart from Lauri Mälksoo’s work and occasional contributions by a handful of other scholars in the West, analyses of Russia’s post-Soviet state practice and doctrine in the international legal discourse usually confine themselves to assess the legality of Russia’s actions in terms of positive international law. Such a limited approach fails to attempt to understand diverging views on international law, something which was perceived as self-evident during the Cold War period.

Russland und das Selbstbestimmungsrecht der Völker im postsowjetischen Raum

2021 ◽  
Vol 67 (1) ◽  
pp. 8-26
Author(s):  
Johannes Socher
Keyword(s):  
International Law ◽  
Self Determination ◽  
Legal Rhetoric ◽  
Power Politics ◽  
Regional Comparison ◽  
State Practice ◽  
Soviet Space ◽  
The Right ◽  
Fragmentation Of International Law ◽  
Post Soviet Space

As a concept of international law, the right to self-determination is widely renowned for its unclarity. Broadly speaking, one can differentiate between a liberal and a nationalist tradition. In modern international law, the balance between these two opposing traditions is sought in an attempt to contain or ‘domesticate’ the nationalist conception by limiting it to ‘abnormal’ situations, i.e. to colonialism in the sense of ‘alien subjugation, domination and exploitation’. Essentially, this distinction between ‘normal’ and ‘abnormal’ situations has since been the heart of the matter in the legal discourse on the right to self-determination, with the important qualification regarding the need to preserve existing borders. This study situates Russia’s approach to the right to self- determination in that discourse by way of a regional comparison vis-à-vis a ‘western’ or European perspective, and a temporal comparison with the former Soviet doctrine of international law. Against the background of the Soviet Union’s role in the evolution of the right to self-determination, the bulk of the study analyses Russia’s relevant state practice in the post-Soviet space through the prisms of sovereignty, secession, and annexation. Complemented by a review of the Russian scholarship on the topic, it is suggested that Russia’s approach to the right to self-determination may be best understood not only in terms of power politics disguised as legal rhetoric, but can be seen as evidence of traits of a regional (re-)fragmentation of international law.

Russia and the Right to Self-Determination in the Post-Soviet Space

2021 ◽  
Author(s):  
Johannes Socher
Keyword(s):  
International Law ◽  
Self Determination ◽  
Legal Rhetoric ◽  
Power Politics ◽  
South Ossetia ◽  
State Practice ◽  
Soviet Space ◽  
The Right ◽  
Fragmentation Of International Law ◽  
Post Soviet Space

As a concept of international law, the right to self-determination is widely renowned for its lack of clarity. Broadly speaking, one can differentiate between a liberal and a nationalist tradition. In modern international law, the balance between these two opposing traditions is sought in an attempt to contain or ‘domesticate’ the nationalist conception by limiting it to ‘abnormal’ situations, that is to colonialism in the sense of ‘alien subjugation, domination and exploitation’. Essentially, this distinction between ‘normal’ and ‘abnormal’ situations has since, the distinction was made, been the heart of the matter in the legal discourse on the right to self-determination, with the important qualification regarding the need to preserve existing borders. This book situates Russia’s approach to the right to self-determination in that discourse by way of a regional comparison vis-à-vis a ‘Western’ or European perspective, and a temporal comparison with the former Soviet doctrine of international law. Against the background of the Soviet Union’s role in the evolution of the right to self-determination, the bulk of the book analyses Russia’s relevant state practice in the post-Soviet space through the prisms of sovereignty, secession, and annexation, illustrated by a total of seven case studies on the conflicts over Abkhazia, Chechnya, Crimea, Nagorno-Karabakh, South Ossetia, Tatarstan, and Transnistria. Complemented by a review of the Russian scholarship on the right to self-determination, it is suggested that Russia’s approach may be best understood not only in terms of power politics disguised as legal rhetoric, but can be seen as evidence of traits of a regional (re-)fragmentation of international law.

Introduction

2021 ◽  
pp. 1-13
Author(s):  
Johannes Socher
Keyword(s):  
International Law ◽  
Academic Discipline ◽  
Self Determination ◽  
Raw Material ◽  
Legal Argumentation ◽  
Power Politics ◽  
State Practice ◽  
Detailed Assessment ◽  
The Right ◽  
Open Question

The book provides a detailed assessment of Russia’s state practice in the post-Soviet space with the aim to ascertain a distinct Russian approach to the right of peoples to self-determination, illustrated by seven case studies on the secessionist conflicts over Abkhazia, Chechnya, Crimea, Nagorno-Karabakh, South Ossetia, Tatarstan, and Transnistria. As such, it may serve as a detailed documentation of the raw material necessary to form and identify rules of customary international law, produced by one particular state. Beyond that, it seeks to test the accuracy of and give substance to Lauri Mälksoo’s general assessment in Russian Approaches to International Law that the ‘evolution of Moscow’s legal argumentation and views in these complex cases … has not followed some overarching legal principle but reflected changing power politics. Until 2014, Russia claimed that sovereignty trumped self-determination but in 2014 partly destroyed its own earlier argumentation by its own actions in Ukraine.’ Finally, this book is a contribution to what Mälksoo calls the ‘debatable nexus’ between legal scholarship and state practice of international law in Russia, that is the open question of to what extent international law as an academic discipline continues to be subjugated to the raison d’état in Russia.

Unilateral Economic Sanctions, International Law, and Human Rights

2019 ◽  
Vol 33 (3) ◽  
pp. 291-302 ◽  
Author(s):  
Idriss Jazairy
Keyword(s):  
Human Rights ◽  
Cold War ◽  
International Law ◽  
Economic Sanctions ◽  
Self Determination ◽  
Berlin Wall ◽  
The West ◽  
Eventual Collapse ◽  
The Cold War ◽  
United Nations Charter

AbstractAs part of the roundtable “Economic Sanctions and Their Consequences,” this essay examines unilateral coercive measures. These types of sanctions are applied outside the scope of Chapter VII of the United Nations Charter, and were developed and refined in the West in the context of the Cold War. Yet the eventual collapse of the Berlin Wall did not herald the demise of unilateral sanctions; much to the contrary. While there are no incontrovertible data on the extent of these measures, one can safely say that they target in some way a full quarter of humanity. In addition to being a major attack on the principle of self-determination, unilateral measures not only adversely affect the rights to international trade and to navigation but also the basic human rights of innocent civilians. The current deterioration of the situation, with the mutation of embargoes into blockades and impositions on third parties, is a threat to peace that needs to be upgraded in strategic concern.

scholarly journals The Tallinn Manuals and the Making of the International Law on Cyber Operations

2019 ◽  
Vol 13 (1) ◽  
pp. 67-86
Author(s):  
Papawadee Tanodomdej
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Political Activism ◽  
Customary International Law ◽  
State Practice ◽  
The Right ◽  
International Experts

The Tallinn Manuals (the Manuals) attempted to clarify how to apply existing international law to cyber operations. Though the Manuals are non-binding instruments, the Group of International Experts claimed that they reflected the lex lata applicable to cyber operations. However, this claim is questionable due to the dominating role of a few Western states in the drafting process and the linked neglect of the practice of “affected states” in cyber operations. This article examines the quality of the Manuals’ drafting process and the composition and impartiality of the experts involved. It focuses on the issue of the prohibition of the use of force. The aim of this examination is not to discuss whether the Manuals provided the right answer to the question of how international law applies to cyber operations. Rather, they function as a case study of how legal scholarship may affect the making of international law. The article concludes that certain rules in the Manuals are marked by NATO influence and overlook the practice of other states engaged in cyber operations. Therefore, the Manuals disregard the generality of state practice, which should be the decisive factor in the formation of customary international law. As far as “political activism” may be involved, the article argues that the role of legal scholars as assistants to the cognition of international law could be compromised.

Part 1 The Cold War Era (1945–89), 29 The US Intervention in Nicaragua—1981–88

2018 ◽  
Author(s):  
Kammerhofer Jörg
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Customary Law ◽  
The Us ◽  
State Practice ◽  
The Icj ◽  
The Right ◽  
The Cold War ◽  
Us Intervention ◽  
Self Defence

This chapter focuses on the US intervention in Nicaragua from 1981 to 1988, as a contribution to the state practice on the law on the use of force and the right to self-defence under both UN Charter and customary law. After an overview of the background of the so-called ‘contra war’ and of the salient facts regarding the US intervention in that conflict, it discusses the positions of the two parties on the facts and law, and takes note of the reaction of the international community, focusing on the debates at the UN. The next section focuses on the legality of the operation; the ICJ’s holdings in its 1986 Nicaragua judgment form the backbone of that discussion, while taking note of dissent and comment both inside and outside the Court. The contribution concludes by discussing the precedential value and effect of this conflict, and of the ICJ case.

“Post” As Justification: International Law and Democracy-Building after Iraq

2003 ◽  
Vol 4 (7) ◽  
pp. 709-723 ◽  
Author(s):  
Outi Korhonen
Keyword(s):  
Cold War ◽  
International Law ◽  
Use Of Force ◽  
World Politics ◽  
Political Elite ◽  
Deterrent Effect ◽  
The Political ◽  
The West ◽  
The Cold War ◽  
Democracy Building

The “post”-phase of a conflict has become the justification for both the possible action and the inaction of the Western states. It is not so much any longer that we would be averse to war in any circumstances, as the non-use of force principle in its absolute sense would require. Again, after a good fifty years of the UN and its raison d'etre – the guardianship of peace – we seem to have arrived at an era where ideological contestation no more has the deterrent effect that it did during the Cold War and, consequently, there are cases of the use of force that are accepted and even regarded as just as long as they are quick. When looking back at the NATO bombings of FRY in 1999 as the response to atrocities in Kosovo many are able to accept that ‘though illegal they were legitimate’ in some sense. This is the conclusion irrespective of whether one, at the time, was for action or inaction. Such a ‘condoning condemnation’ has become the popular middle road as so many other paradoxes in world politics. Through the cases of Afghanistan and Iraq the paradox has gained in strength. Although there is quite strong and unequivocal opposition to the wars and a condemnation for their illegality, the political elite of the West seems to be quick in forgetting scruples and taking a keen interest in the “post”-management of the targets, i.e. the states that are about to be or already have been ‘bombed into the stone age’ or into shambles in any case. There is a general rush to the “post”-phase; both in the sense that the tacit requirement for the condoning condemnation is that the action be quick – the use of force should be very limited in time – and, secondly, in the sense that already before the bombs fall (or during) the major reconstruction plans and projects are dealt. This article outlines some points of critique that could be launched at the phase when the majority cannot be bothered to re-analyze the wrongs committed ex ante.

The Soviet Approach to the Right of Peoples to Self-determination: Russia’s Farewell to jus publicum europaeum

2017 ◽  
Vol 19 (2) ◽  
pp. 200-218 ◽  
Author(s):  
Lauri Mälksoo
Keyword(s):  
International Law ◽  
20Th Century ◽  
Theory And Practice ◽  
Self Determination ◽  
The West ◽  
The Real ◽  
Liberal Democratic ◽  
History Of ◽  
History Of International Law ◽  
The Right

The aim of this article is to explore the theory and practice of the Soviet position on the right of peoples to self-determination in 1917 and afterwards. It is a misunderstanding to mention Lenin’s (the Bolsheviks’) and Wilson’s concepts of self-determination in one breath, as ‘precursors’ in international law. The Soviet concept of the right of peoples to self-determination was adopted for tactical and propagandistic purposes, and it had little in common with the liberal democratic concept of this right that saw the right of peoples to self-determination as an end in itself. The real contribution of the Russian Bolsheviks to the history of international law has, to some extent, been overlooked. Throughout the 20th century, the West and the ussr had different regional standards and usages of the right of peoples to self-determination, thus presenting a continuous challenge to the idea of the universality of international law.

The Annexation of Crimea and the Boundaries of the Will of the People

2015 ◽  
Vol 16 (3) ◽  
pp. 365-383 ◽  
Author(s):  
Jure Vidmar
Keyword(s):  
International Law ◽  
Legal Status ◽  
Use Of Force ◽  
Self Determination ◽  
International Borders ◽  
The People ◽  
The Will ◽  
Territorial Status ◽  
The Stability ◽  
The Right

AbstractThe secession of Crimea and—more broadly—the conflict in Ukraine reopened questions concerning the limits of a democratic expression of the will of the people and the use of force in order to procure annexation of a territory belonging to another State. This article seeks to clarify the law governing the change of the legal status of a territory through secession and merger with another state. It argues not only that the right of self-determination does not grant an entitlement to alter the legal status of a territory, but also that general international law does not prohibit such an alteration. The rules of international law favor the stability of theexistinginternational borders and thus the territorial status quo, but this does not mean that a unilateral attempt at altering an existing territorial arrangement automatically constitutes an internationally wrongful act. Any change of the legal status of a territory becomes illegal, however, upon anoutsideuse of force. Such an illegality cannot be “cured” by a democratically expressed will of the people.

The Legitimacy of Minorities' Claim for Autonomy through the Right to Self-Determination

1999 ◽  
Vol 68 (4) ◽  
pp. 413-438 ◽  
Author(s):  
Keyword(s):  
International Law ◽  
Minority Rights ◽  
Good Faith ◽  
Self Determination ◽  
Ethnic Conflicts ◽  
Contemporary Debate ◽  
Nation States ◽  
State Practice ◽  
The Stability ◽  
The Right

AbstractThe grant of autonomous powers to minorities is considered as a threat to the stability of the nation-State system. Nonetheless, many academics and jurists now believe that autonomy can be used to reduce ethnic conflicts, provided that parties to such arrangements are willing to implement them in good faith. In contemporary debate amongst academics it is frequently argued that there is an apparent link between minorities' rights and autonomy. Moreover, some minority rights campaigners stress that minorities' right to autonomy emanates from the right to self-determination. Such claims are, however, contested by most nation-States on the ground that autonomy is not a right in international law. It is only a small number of States that are prepared to experiment with autonomous arrangements to address minorities' concerns within their constitutional structure. Whilst investigating the current developments in United Nations and State practice with regard to autonomy, this article critically analyses whether autonomy gains its legitimacy through the right to self-determination and the extent to which autonomy is being evolved as an integral part of the internal right to self-determination.

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