Rule of Law in the Secessionist States

  • Christopher P. M. Waters
Part of the Euro-Asian Studies book series (EAS)

Abstract

Any account of the rule of law in the South Caucasus would be incomplete without considering the situation in the separatist territories of the region.1 Nagorno Karabakh (‘Karabakh’), South Ossetia and Abkhazia are often portrayed as lawless areas and have received little scholarly attention beyond analyses of the conflicts themselves.2 This chapter aims to foster a broader understanding of the secessionist territories by taking a closer, internal look at the rule of law in two of the three territories, South Ossetia and Karabakh. It does so by examining how local actors — lawyers, judges, law-makers and citizens — behave with respect to law. For present purposes, the views of the international community on territorial integrity, self-determination and recognition are relevant, only insofar as they impact on the behaviour of local actors. Sidestepping the question of international legal personality allows for a neglected sociolegal analysis of these territories and, specifically, offers insight into the conditions necessary for the rule of law to emerge in territories at the margins of both the region and international life.

Keywords

Europe Cote Eurasia Iraq Azerbaijan 

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Notes

  1. 2.
    The absence of scholarship on these states has been called a ‘critical gap’ in our understanding of the former Soviet Union. See D. Lynch, ‘Separatist States and Post-Soviet Conflicts’, International Affairs, 78 (2002), pp. 831, 832.CrossRefGoogle Scholar
  2. 4.
    Other aspects of statehood are discussed below. I take no position here on whether the territories in question should be recognized and my use of the term ‘state’ is simply shorthand for the fact that these territories meet the territorial effectiveness test. In that sense I am operating under the declaratory theory of international law, which holds that recognition is merely evidence of statehood and does not create states. The leading text on statehood — and the effects of recognition — remains J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979).Google Scholar
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  4. and T. D. Grant, ‘Defining Statehood: the Montevideo Convention and its Discontents’, Columbia Journal of Transnational Law, 37 (1999), p. 403.Google Scholar
  5. 5.
    Somaliland is a particularly striking case in that since 1991 it has acted as more of a state than has the state from which it broke, Somalia, of course providing the classic example of a ‘failed state’. Somaliland has a Constitution, a bicameral Parliament, elections and courts which work. See generally A. Huliaris, ‘The Viability of Somaliland: Internal Constraints and Regional Geopolitics’, Journal of Contemporary African Studies, 20 (2002), p. 157. Other examples include the territory in Ethiopia controlled by the Eritrean People’s Liberation Front, well before the recognition of Eritrea, and Kurdish-held territory since the 1990s in Iraq. As one journalist described the latter territory, ‘Up in its enclave, it [the Kurdish Workers Party or PKK] exacts customs duties and taxes on the local people, builds roads and the occasional clinic, runs a standing army of about 10,000 fighters … and overall acts like a mini-state’ (J. Burke, ‘Daughters of the Revolution’, Observer Magazine [11 May 2003]). The other post-Soviet example is the Pridnestrovyan Moldovan Republic (carved from Moldova).CrossRefGoogle Scholar
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    See G. Smith, V. Law, A. Bohr and E. Allworth, eds, Nation Building in the Post-Soviet Borderlands: the Politics of National Identities (Cambridge: Cambridge University Press, 1999).Google Scholar
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    For a good discussion of the conflict, see R. G. Suny, The Making of the Georgian Nation (Bloomington: Indiana University Press, 1994).Google Scholar
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    On the difficulties of holding nationality of an unrecognized state, see A. Grossman, ‘Nationality and the Unrecognised State’, International and Compartative Law Quarterly, 50 (4) (2001), p. 849.CrossRefGoogle Scholar
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    Both sides in the conflict present radically different versions of events. I rely here on T. de Waal’s Black Garden: Armenia and Azerbaijan through Peace and War (New York: New York University Press, 2003).Google Scholar
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    The doctrine of unsuitability is known to the common law as well, having been used by courts in the colonial context. See J. E. Cote, ‘The Reception of English Law’, Alberta Law Review, 15 (1977), p. 29.Google Scholar
  11. 32.
    Although it should be noted that South Ossetia’s primary cultural identity is with North Ossetia, rather than with the Russian Federation generally. Cooperation between North and South Ossetia is discussed below. On links between cultural identity and law see N. Kasirer, ‘Lex-icographie mercatoria’, American Journal of Comparative Law, 47 (1999), p. 653.CrossRefGoogle Scholar
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    Amnesty International, Concerns in Europe, January–June 2000: Azerbaijan (21 August 2000).Google Scholar
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    Amnesty International, Concerns in Europe, July–December 2001: Azerbaijan (30 May 2002).Google Scholar
  14. 51.
    Large swathes of law are shared between the European micro-states and their larger neighbours. See J. Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood (Cambridge: Cambridge University Press, 1996).Google Scholar
  15. 54.
    See P. H. Solomon, ‘Putin’s Judicial Reform: Making Judges Accountable as well as Independent’, East European Constitutional Review, 11 (2002), p. 117.Google Scholar
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    See C. P. M. Waters, Counsel in the Caucasus: Professionalization and Law in Georgia (Leiden: Martinus Nijhoff, 2004).CrossRefGoogle Scholar
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    C. N. Okeke, Controversial Subjects of Contemporary International Law (Rotterdam: Rotterdam University Press, 1974), p. 30.Google Scholar
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    See Grant, supra note 4 and S. D. Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’, International and Comparative Law Quarterly, 48 (1999), p. 545.CrossRefGoogle Scholar
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    See UK Materials on International Law, British Yearbook of International Law, 62 (1991), pp. 560–1.Google Scholar
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    S. Holmes, ‘Lineages of the Rule of Law’, in J. M. Maravall and A. Przeworski, eds, Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003).Google Scholar

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© Christopher P. M. Waters 2005

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  • Christopher P. M. Waters

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