Content type:

Encyclopedia Entries
Article last updated:
January 2013
Product: Max Planck
Encyclopedia of Public
International Law [MPEPIL]
South Ossetia
Angelika Nuberger
Subject(s):
States, independence Jurisdiction of states, conflicts Jurisdiction of states, territoriality principle
Sovereignty Recognition of states Self-determination Territory, title Secession
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Rdiger Wolfrum.
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
A. General Aspects
1 South Ossetia (called Tskhinvali region or Samachablo by Georgia) is a territory of 3900
square kilometres located within the Caucasus. Its status in international law is controversial.
Whereas South Ossetia considers itself to be an independent State since its declaration of
independence on 29 May 1992 and has been recognized by five Member States of the United
Nations (UN) in the aftermath of the military conflict between Russia and Georgia in 2008 (Russian
Federation, Nicaragua, Venezuela, Nauru, and Tuvalu), the Georgian government as well as the
majority of Member States of the UN consider it to be a part of the territory of Georgia.
B. Historical Developments
1. Earlier Times
2 The present-day conflict between South Ossetia and Georgia is rooted in a different
understanding of historical facts and developments. Whereas Ossetians consider South Ossetia as
part of Ossetian territory from ancient times and argue that the Ossetians were always closer to
Russia than to Georgia, the Georgians hold that the ancestors of the Ossetians have migrated from
their homeland north of the Caucasian mountains into the territory they call Samachablo.
2. Russian Empire
3 According to the Ossetian view, Ossetians had joined Russia in the 18 century, long before
Georgia was annexed in 1801. South Ossetia and North Ossetia belonged to different administrative
parts of the Russian Empire; whereas South Ossetia was part of the department of Tbilissi, North
Ossetia belonged to Vladikavkaz.
3. Russian Revolution
4 The separation between Ossetians living in North Ossetia and South Ossetia continued after the
Russian Revolution. South Ossetia became part of the Menshevik Georgian Democratic Republic
which gained independence on 26 May 1918, while North Ossetia was integrated into different
territorial configurations within the Russian Soviet Federative Socialist Republic (RSFSR).
Insurrections of South Ossetians supporting Soviet Russia were suppressed with violence. In the
South Ossetian historiography this is seen as genocide. The Georgians, on the contrary, interpret
the Ossetian support for Russian Bolsheviks as treason which helped the Red Army in re-
conquering Georgia in March 1921.
4. Soviet Union
5 Based on the contract on the formation of the Union of Soviet Socialist Republics (USSR) from
30 December 1922, Georgia became part of the Transcaucasian Socialist Federative Soviet
Republic which made up the Soviet Union together with the Russian Soviet Socialist Republic, the
Ukrainian Soviet Socialist Republic, and the Belarus Soviet Socialist Republic. In 1936 Georgia
acquired the status of a Union Republic. South Ossetia was granted the status of an Autonomous
Region (oblast) within the Georgian Soviet Socialist Republic on 20 April 1922 and remained as
such during the whole Soviet period, whereas on 7 July 1924 North Ossetia was accorded the
status of an Autonomous Region within the RSFSR and on 5 December 1936 that of an
Autonomous Socialist Soviet Republic.
6 Although the Soviet federal system was under the firm control of the communist leadership, the
status of territories within the threefold system composed of Union Republics, Autonomous
Republics, and Autonomous Regions did matter, as it was connected to certain rights and
administrative powers. In the Union Republicssuch as Georgia since 1936the major nation, ie
the Georgians, was recognized as a titular nation. Theoretically Union Republics had a right to
secession on the basis of the Constitution (Art. 17 Constitution USSR [1936]; Art. 72 Constitution
USSR [1977]). They also had substantial administrative powers, particularly in the fields of culture
th
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
and education. Autonomous Republics located within the Union Republics were formally not
sovereign, but had State organs such as an executive body and a Supreme Soviet with legislative
powers. Autonomous Regions were not considered to have any characteristics of statehood.
7 The regulation of the rights and duties within the Soviet federal system did not contribute to the
solution of the controversies between Georgia and South Ossetia. Whereas Georgians continued to
see Ossetians as disloyal, Ossetians kept complaining about Georgian oppression of Ossetian
national culture and the denial of minority rights such as the use of their own language in school,
and the use of Ossetian alphabet and toponyms.
8 According to the last census in 1989, 598,000 Ossetians lived in the Soviet Union68,000 of
them in South Ossetia and 164,000 in other parts of Georgia.
5. Civil War in the 1990s
9 Disagreement about the status of South Ossetia within the Soviet federal system was the starting
point for the violent conflict between South Ossetia and Georgia, which evolved in parallel with the
dissolution of the Soviet Union. On 10 November 1989 the Presidium of the Supreme Soviet of
Georgia refused the motion of the South Ossetian Regional Soviet to change the status of the
Autonomous Region of South Ossetia to that of an Autonomous Republic within Georgia. In
November 1989 the first violent clashes occurred which were stopped by troops of the USSR
Ministry of the Interior.
10 On 9 March 1990 Georgia declared the contract about the formation of the USSR from 30
December 1922 to be invalid for Georgia. Subsequently, on 20 September 1990 South Ossetia
declared its sovereignty as a Soviet Democratic Republic within the USSR. In response to this
measure the Georgian Parliament abolished South Ossetias autonomy on 11 December 1990. The
political controversies led to violent clashes between South Ossetian and Georgian militias, which
lasted from December 1990 up to June 1992 and led to heavy losses on both sides. On 24 June
1992 a ceasefire agreement was concluded by the Russian President Yeltsin and the Georgian
President Shevardnadse. This so-called Sochi Agreement established joint peacekeeping forces
composed of Russian, Georgian, and Ossetian units (Agreement on the Principles of Settlement of
the Georgian-Ossetian Conflict of 24 June 1992).
11 Whereas the South Ossetian population took part in the USSR referendum on 17 March 1991
and reportedly voted in favour of the preservation of the Soviet Union, the Georgians organized
their own referendum on 31 March 1991 and subsequently restored Georgias declaration of
independence from 26 May 1918. On 19 January 1992 another referendum was organized in South
Ossetia, in which the vast majority declared themselves in favour of independence from Georgia
and re-unification with Russia. This referendum was considered to be illegal by Georgia.
Nevertheless, it led to the declaration of independence by the de facto South Ossetian Parliament
on 29 May 1992. Requests of the de facto South Ossetian Parliament to recognize the
independence of the country and/or accept it as part of the Russian Federation were refused by
Russia (De facto Regime).
12 Georgia was internationally recognized and became a member of the United Nations on 31
July 1992 within the borders of the former Georgian Soviet Socialist Republic. The territory of South
Ossetia was considered to be a part of the new sovereign State.
6. Frozen Conflict
13 Between 1992 and 2008 the conflict was considered to be frozen. Joint peacekeeping forces
were set up under a joint control commission consisting of representatives of the parties to the
conflict, the Republic of North Ossetia, and the Russian Federation. Based on a joint paper adopted
on 6 June 1994 the military command was given to the Russian military. In the immediate
aftermath of the conflict it was possible to stabilize the situation. On 16 May 1996 a Memorandum
on Measures to Provide Security and Strengthen Mutual Trust between the Parties to the Georgian-
Ossetian Conflict was signed in Moscow by representatives of Georgia, the Russian Federation,
South Ossetia, North Ossetia, and the Organization for Security and Co-operation in Europe (OSCE).
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
According to this agreement the use of force (Use of Force, Prohibition of) was to be excluded as a
means of conflict resolution, amnesty should be granted unless war crimes had been committed,
and further dialogue and peacebuilding measures were envisaged.
14 The peace process was supported by the OSCE Mission to Georgia set up in November 1992
as well as by the European Union (EU) offering assistance for post-conflict economic
rehabilitation.
15 Despite the progress in the peace process made in the years between 1992 and 1999 State-
building continued in South Ossetia. On 2 November 1993 the first constitution was adopted, which
was replaced on 8 April 2001 (now effective in the version of December 2005). Since 1993 the
Chairman of the Supreme Soviet of South Ossetia, Ludwig Chibirov, acted as Head of State before
he was elected first President in 1996; the election was not recognized internationally.
16 In 2006 an alternative State-building process started with the support of the Georgian
authorities. After the creation of a Salvation Union of Ossetians elections were held both in the
separatist areas and in the Georgian-controlled areas. The Georgian authorities created a
temporary administrative unit comprising three municipalities and appointed the winner of the
elections, Dmitry Sanakoyev, an ethnic Ossetian, as head. This move was considered illegitimate
by the representatives of the Republic of South Ossetia.
17 While the conflict resolution process had already slowed down after 1999 with new political
leaders coming to power (Kokoity in South Ossetia in 2001 and Saakashvili in Georgia in 2004), it
further deteriorated in 2004 because of political and economic controversies which repeatedly led
to military confrontations. Neither the joint peacekeeping forces nor the OSCE or the EU succeeded
in preventing the outbreak of violence.
C. Legal Status of South Ossetia
1. Legal Status of South Ossetia before the Outbreak of the Military
Conflict in 2008
(a) South Ossetia as an Entity Short of Statehood
18 Before the 2008 war no UN Member State had formally recognized South Ossetia as a subject
of international law (Subjects of International Law). With the recognition of Georgias independence
and Georgias accession to the United Nations on 31 July 1992, South Ossetias declaration of
independence of 29 May 1992 was implicitly declared to be legally irrelevant. This position was
universally accepted up to the outbreak of the military conflict in August 2008 with the exception of
the other break-away territories in the post-Soviet space, Abkhazia (recognition on 17 November
2006) and Transnistria (recognition on 17 November 2006). On 15 April 2008 the UN Security
Council unanimously passed Resolution 1808 which reaffirmed the commitment of all UN Member
States to the sovereignty, independence, and territorial integrity of Georgia within its internationally
recognized borders.
19 Yet, according to the declaratory theory of recognition, which is predominantly espoused by
State practice and international legal scholarship, recognition is not constitutive of a State. A
defined territory, a permanent population, and an effective government are seen as minimal, but
sufficient preconditions for statehood.
20 The requirement of a core territory was met in the case of South Ossetia despite the
fragmented character of the territory controlled by the newly created South Ossetian authorities
and the controversies over the delimitation and status of the boundaries. It is also possible to argue
that there was an aggregate of individuals living on the territory of South Ossetia, although there
was a permanent flux of the population due to migration and forced eviction. The criterion of an
effective government was, however, missing. Due to the fact that the majority of the citizens had
acquired Russian nationality on the basis of the Russian passportization policy, Russia could claim
personal jurisdiction over them. Furthermore, Russian officials had de facto control over South
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
Ossetias institutions, especially over the security institutions and security forces. Instead of
gradually stabilizing South Ossetias independence after 1992, the process of State-building
suffered setbacks after 2004.
21 South Ossetias self-assessment concerning its legal status before 2008 was not consistent
either. In the first so-called referendum held on 19 January 1992 the majority of the voters opted for
independence from Georgia and integration into Russia. In the declaration of independence
adopted on 29 May 1992, however, the Supreme Soviet declared the independence of South
Ossetia and establishment of the independent State of South Ossetia. This is repeated in Art. 1
Constitution (Organic Law) of the Republic of South Ossetia, adopted on 8 April 2001: The Republic
of South Ossetia is a sovereign democratic State based on law, which has been established by the
right of nationals to self-determination. This declaration is difficult to reconcile with the fact that the
majority of South Ossetians acquired Russian nationality, a process that had already started before
the 2008 war.
22 On the basis of these findings South Ossetia cannot be qualified as a State before the
outbreak of the 2008 war. It is controversial, however, how to define the status of a territory which
is under de facto jurisdiction of newly established, yet not independent authorities and at the same
time legally belongs to a Member State of the United Nations. In line with the EU Report of the
Independent International Fact-Finding Mission on the Conflict in Georgia South Ossetia can be
considered an entity short of statehood (at vol II, 134). In the legal literature it was proposed to
characterize it as a stabilised de facto regime which enjoys partial international subjectivity
(Luchterhandt 457). Yet, this categorization is based on the assumption that, even if there is no
international recognition, all substantial criteria for the existence of a State are fulfilled. In South
Ossetia, however, effectiveness of the government is not sufficiently present. In this regard the
categorization of South Ossetia by the EU Fact-Finding Mission differs from that of Abkhazia which
is seen as a State-like entity. On a scale going from non-State to full-fledged State, Abkhazia
would be closer to a State than South Ossetia.
23 Nevertheless, State practice in the 1990s showed that South Ossetia was treated as a partial
subject of international law since it was accepted as a partner in setting up the joint peacekeeping
forces under the joint control commission and in drawing up the Memorandum of 1996 (see above
para. 13). This fact should, however, not be overestimated, as the same legal status was accorded
to the Republic of North Ossetia which forms a part of the Russian Federation. Furthermore, it is
important to note that the Sochi Agreement (see above para. 10) was concluded between the
Russian Federation and Georgia.
(b) Applicability of Arts 2 (4) and 51 United Nations Charter to South Ossetia
24 It is also not unequivocal in how far State practice before the outbreak of the war confirmed the
applicability of Arts 2 (4) and 51 UN Charter to South Ossetia. As a rule, internal disputes, even
those involving stabilized regimes, are considered as domestic matters. Yet, the situation in
Georgia is different from other internal conflicts because of the existence of specific regulations
elaborated in the 1990s between the conflicting parties and representatives of the international
community (see above paras 10, 13). The preambles of these agreements explicitly refer to the
provisions of the UN Charter, thus suggesting their applicability. On the other hand a special clause
is dedicated to the abstention of the sides of the conflict from the use of force which would not be
necessary if Art. 2 (4) UN Charter was applicable per se. The EU report left the question open (see
below para. 28). It is argued that UNGA Res 3314 (XXIX) Definition of Aggression of 14 December
1974 (GAOR 29 Session Supp 31 vol 1, 142) would be applicable to the relationship between
Georgia and South Ossetia as it defines State without prejudice to questions of recognition or to
whether a State is a member of the United Nations (Henderson and Green 134). Yet, the broad
approach of the Resolution cannot be transferred to entities which do not even have the minimum
requirements of statehood.
(c) Scope of the Right to Self-Determination
25 As the Ossetians form a people under international law, they are endowed with the right to
self-determination. This applies also to the sub-group of the Ossetian people living on the territory
th
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
of the South Ossetian Autonomous Region established under Soviet law. While they were entitled
under international law to request political representation and preservation of their cultural identity
both within the Soviet legal system and, subsequently, within the Georgian legal system, the right to
self-determination could not be interpreted as giving a right to a certain legal status. The request to
transform the South Ossetian Autonomous Region into an Autonomous Republic could therefore
not be based on international law. Neither could the principle of uti possidetis (Uti possidetis
Doctrine) be applied sincecontrary to the status of a Union Republicthe status of an
Autonomous Region was not relevant for the determination of the internal borders within the Soviet
Union.
2. Military Conflict in South Ossetia in August 2008
26 There is no consensus on the question of international responsibility for the outbreak of the
military intra-State conflict between South Ossetia and Georgia which was at the same time also an
inter-State conflict as it involved Russia (and the other break-away territory of Georgia, Abkhazia).
Large-scale use of violence started in the night of 7 to 8 August 2008 and lasted officially up to the
adoption of the EU-brokered Six-Point Ceasefire Agreement between Russia and Georgia on 12
August 2008. Violence continued, however, even after that date. Russian troops finally withdrew to
the positions they had held prior to the outbreak of hostilities on 9 October 2008 with the exception
of the little Georgian town of Perevi, which was left only on 18 October 2010.
27 The conflict took place exclusively within the internationally recognized borders of Georgia.
The applicability of the prohibition of use of force was therefore controversial, as Art. 2 (4) UN
Charter applies only if use of force is directed against the territorial integrity and political
independence of any State and South Ossetia could not be qualified as a State with a view to
Georgia. Nevertheless, the prohibition on the use of force was deemed to be applicable because all
the agreements concluded in the course of the process of conflict settlement (see above para. 24)
contained references to the UN Charter and the Helsinki Final Act (1975), and implicitly or explicitly
excluded the use of force.
28 The military clashes between Georgian troops and South Ossetian militias as well as the
shelling of Tshinvali, which led to many civilian victims, preceded the clashes between Georgian
and Russian troops. The basic controversial question was if the Georgian armed attack based on
President Saakashvilis order given on 7 August 2008 at 11:35 pm was justified on the basis of Art.
51 UN Charter as self-defence against military operations of South Ossetian militia. Whereas the
Georgian side answered this question in the positive and the South Ossetian side in the negative,
the Independent International Fact-Finding Mission on the Conflict in Georgia, which had been
installed by the EU, came to the conclusion that on-the-spot reactions by Georgian troops were
necessary and proportionate (Proportionality) to counter the attacks of the Ossetian militia, but not
the large-scale offensive started on 7 August 2008. South Ossetia was seen to have violated the
prohibition of the use of force by shooting Georgian villagers, police, and peacekeepers before the
outbreak of the conflict. After Georgias armed attack, however, South Ossetias military actions
were seen to be justified as self-defence.
29 The clashes between Georgia and South Ossetia have to be analysed within the context of the
military confrontation between Russia and Georgia. Russia justified its intervention in the conflict by
various arguments: as self-defence against a Georgian attack on the Russian peacekeepers
deployed in South Ossetia, as fulfilment of the peacekeeping mission, as answer to an invitation by
the South Ossetian authorities (Intervention by Invitation), as collective self-defence, as
humanitarian intervention, and as action to rescue and protect nationals abroad. All these
arguments were, however, refuted by the Independent International Fact-Finding Mission on the
Conflict in Georgia with the exception of the argument of self-defence against a Georgian attack on
Russian peacekeepers. Nevertheless, the Russian reaction was not seen as necessary and
proportionate to the aim pursued.
30 The Six-Point Ceasefire Agreement precluded the recourse to the use of force, stipulated a
lasting cessation of hostilities, and provided for access to humanitarian aid providers. It prescribed
that Georgian forces had to withdraw to their usual barracks and Russian forces had to go back to
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
the positions held prior to the outbreak of hostilities. Pending an international peace monitoring
mechanism, Russian peacekeepers were allowed to take additional security measures.
Furthermore, it was agreed to launch international discussions on security and stability
arrangements for Abkhazia and South Ossetia.
3. Controversy about South Ossetias Right to Secession after the
Military Conflict
(a) Developments after the 2008 War
31 The situation of South Ossetia has substantially changed since the military conflict. First, the
Georgian population living in the parts of South Ossetia which had still been under Georgian
jurisdiction before the war left their homes or were forcibly evicted. Second, the independence of
South Ossetia was officially recognized by the Russian Federation on the basis of a presidential
decree of 26 August 2008. Subsequently, it was also recognized by Nicaragua on 5 September
2008, by Venezuela on 10 September 2009, by Nauru on 15 December 2009 and by Tuvalu on 19
September 2011. They all established diplomatic relations with South Ossetia. All other UN Member
States either did not react or confirmed Georgias territorial integrity within the boundaries of 1992.
International organizations such as the EU, the North Atlantic Treaty Organization (NATO), and the
OSCE condemned the unilateral recognition of South Ossetia as a violation of Georgias territorial
integrity. Third, the Georgian Parliament formally declared South Ossetia to be an occupied
territory on 28 August 2008 and on 23 October 2008 passed a Law on Occupied Territories of
Georgia. Fourth, on 17 September 2008 the Russian Federation concluded a Treaty on Friendship,
Cooperation and Mutual Assistance with South Ossetia, followed on 20 January 2009 by a
Memorandum on Mutual Understanding between the Ministry of Foreign Affairs of the Russian
Federation and the Ministry of Foreign Affairs of the Republic of South Ossetia and several other
international agreements in the fields of fight against criminality, protection of borders, military
cooperation, as well as economic and social cooperation. On 7 April 2010 a treaty on a Russian
military basis in South Ossetia was concluded.
(b) Rights to Self-Determination and Secession
32 South Ossetias right to self-determination and secession after the 2008 war is
controversially debated. On the basis of the so-called savings clause in the Friendly Relations
Declaration (1970) it is argued that secession must be possible as ultima ratio in cases in which
the right to internal self-determination is persistently denied to a people and when all peaceful and
diplomatic means to establish a regime of internal self-determination have been exhausted.
Scenarios invoked in this context are above all violations of basic human rights, (attempted)
genocide, and the complete suppression of minority rights by despotic governments. Yet, although
there is a tendency in legal literature to support a right of secession in such cases, it is not
confirmed by State practice. Outside the colonial context since 1945 no State created by unilateral
secession has been admitted to the United Nations against the explicit will of the State from
which it separated.
33 The main argument put forward by Russia and South Ossetia to support a right to secession
is the case of Kosovo which is interpreted to have created a precedent. However, even if Kosovo is
not interpreted as sui generis and the two cases are seen to be parallel, a single case leading to a
major dispute within the international community is not apt to create a new rule of international law.
On the contrary, the continuing controversies show that there is no opinio iuris which would
confirm new practice reflecting a new rule of customary international law.
34 The perception of South Ossetia as an entity short of Statehood has thus not changed. This is
also evinced by the refusal of all but four UN Members to follow suit in Russias decision to
recognize the independence of South Ossetia. It is also in accordance with the attitude displayed
by all major international organizations, such as the United Nations, the EU, the Council of Europe
(COE), the Collective Security Treaty Organisation (CSTO), the OSCE, and the Shanghai Cooperation
Organisation. None of them has recognized South Ossetia as an independent State.
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
35 Nevertheless, it may be claimed that South Ossetia is a partial subject of international law as it
has entered into contractual relations with the five States having recognized it. State practice can
also be interpreted as implicitly applying the prohibition of the use of force in order to avoid a
resurgence of military violence. Neither the status of South Ossetia as a partial subject of
international law nor the prohibition of the use of force have, however, been recognized within the
on-going international mediation process, the so-called Geneva talks.
(c) Cooperation among the Unrecognized States
36 In 2001 three of the regions of the former Soviet Union which were denied recognition by the
international communityAbkhazia, South Ossetia, and Transnistriaconcluded an agreement
regarding the creation of a Commonwealth of Unrecognized States (Sodruzhestvo nepriznannykh
gosudarstv). In 2006 they founded the Community for Democracy and Peoples Rights
(Soobshchestvo za demokratiju i prava narodov). In 2007 they adoptedtogether with Nagorno
Karabakha joint declaration on principles of peaceful and fair settlement of the conflicts they are
involved in. In 2009 they concluded an agreement on the abolition of the visa regimes for their
citizens. Yet, despite some elements of institutionalization, eg the nomination of a secretary
general, the cooperation cannot be seen as an international organization.
D. Contribution of the Discussion on South Ossetia to the
Development of International Law
37 The discussion on the legal status of South Ossetia and on the responsibility for the outbreak of
the Russian-Georgian war in August 2008 has contributed to the evolution of international law in
many respects. The assessment of the use of force in an internal conflict poses new challenges, if
the force is directed against a break-away territory which is not only under the de facto jurisdiction
of a newly established regime, but also controlled by an international peacekeeping mission. At the
same time the case is an example of the limits of the right to self-defence in a situation in which
not the territory of a State, but only peacekeeping soldiers stationed outside the borders of the
country are attacked. The case is also discussed together with the 1999 NATO bombing in Serbia
as a precedential incident contributing to the emergence of the doctrine of humanitarian
intervention. Furthermore, specific problems are to be solved with a view to the use of force in
order to rescue and protect nationals abroad, especially if the nationals have been created by the
random distribution of passports to a minority population living in the territory of another State.
38 The recognition of South Ossetia by five UN Member States raises many problems concerning
the scope of the right to self-determination and the preconditions of the right to secession
outside the colonial context. In this context it also tends to be discussed together with the case of
Kosovo.
39 Furthermore, the conflict is the first to be treated by the International Court of Justice (ICJ) and at
the same time by the European Court of Human Rights (ECtHR). The jurisdiction of the ICJ has been
evoked on the basis of Art. 22 International Convention on the Elimination of All Forms of Racial
Discrimination ([opened for signature 7 March 1966, entered into force 4 January 1969] 660 UNTS
195). Yet, on 1 April 2011 the ICJ found that it had no jurisdiction to decide the dispute. Before the
ECtHR an inter-State complaint is pending; it was declared admissible on 30 June 2009 (Human
Rights, State Complaints). Both courts had ordered provisional measures immediately after the war.
Furthermore, for the first time the EU appointed a fact-finding mission on a conflict with the aim of
investigating the origins and the course of the conflict with regard to international law, humanitarian
law, and human rights. The case of South Ossetia is thus an example of post-conflict studies and
analyses both on a judicial and on a quasi-judicial basis.
40 The consequences of the conflict in South Ossetia are not only debated in international law, but
also in international politics, above all as the reactions to the hostilities have once again shown the
fault-lines of the Cold War. At the same time the deficiencies of international mechanisms for
conflict resolution and conflict management were brought to the fore. The UN Security Council
functioned neither in the prevention nor in the resolution of the conflict with one of its permanent
members being involved. The same was true for international peacekeeping mechanisms in which
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
one party to the conflict played at the same time the role of a neutral arbiter and of an interested
party.
Select Bibliography
JA Frowein Das de facto-Regime im Vlkerrecht: Eine Untersuchung zur Rechtsstellung
nichtanerkannter Staaten und hnlicher Gebilde (Heymann Kln 1968).
B Kaloev Osetiny [The Ossetians] (Nauka Moscow 1971).
J Gaglojti Juzhnaja Osetija [South Ossetia](Zchinval 1993).
I Sanakoev Istoki i factory evoljucii grusino-osetinskogo konflikta [Sources and
Determinants of the Evolution of the Georgian-Ossetian Conflict] (Vladikavkas 2004).
T Schamba and A Neproschin Abchasija, Pravovye osnovy gosudarstvennosti i
suvereniteta [Abkhazia, Legal Bases of Statehood and Sovereignty](Novosti Moscow 2004).
B Christophe Metamorphosen des Leviathan in einer post-sozialistischen Gesellschaft.
Georgiens Provinz zwischen Fassaden der Anarchie und regulativer Allmacht (Transcript
Bielefeld 2005).
I Kochiev and A Margiev Gruzija etnitcheskie chistki v otnoschenii osetii [Georgia: Ethnic
Cleansing in Relation to the Ossetians] Evropa Moscow 2005).
M Bliev Juzhnaja Osetija v kollisijah rossijsko-grusinskih otnoshenii [South Ossetia in the
Collisions of Russo-Georgian Relationships] (Evropa Moscow 2006).
O Efendiev Vooruzhennye e konflikty i voennye prestuplenija na centralnom kavkaze
(Baku 2008).
G Gressel Der Krieg im Kaukasus vom 07.08.2008 bis 14.08.2008 (2008) 27 Internationales
Institut Liberale Politik Sozialwissenschaftliche Schriftenreihe 118.
A Luchterhand Vlkerrechtliche Aspekte des Georgien-Krieges (2008) 46 Archiv des
Vlkerrechts 45780.
A Nussberger Der Fnf-Tage-Krieg vor Gericht: Russland, Georgien und das Vlkerrecht
(2008) 58 Osteuropa 1940.
A Nussberger Vlkerrecht im KaukasusPostsowjetische Konflikte in Russland und in
Georgien (2008) 35 EuGRZ 45766.
P Roudik Russian Federation: Legal Aspects of War in Georgia (Report August 2008).
V Zorkin Peace Projti po lezviju britvy Rossijskaja Gazeta 13 August 2008.
R Dchafarow Die Politik der Gro- und Regionalmchte im Sdkaukasus und in
Zentralasien (Lang Frankfurt 2009).
G Dubinsky The Exceptions That Disprove the Rule? The Impact of Abkhazia and South
Ossetia on Exceptions to the Sovereignty Principle (2009) 34 YaleJIntlL 2416.
Human Rights Watch Up In Flames: Humanitarian Law Violations and Civilian Victims in the
Conflict over South Ossetia (Human Rights Watch New York 2009).
H Krger Kosovo, Abchasien, Sdossetien und das internationale Sezessionsrecht (Kster
Berlin 2009).
H Langner Krisenzone Sdkaukasus (Kster Berlin 2009).
A Nussberger The War between Russia and GeorgiaConsequences and Unresolved
Questions (2009) 1 Gttingen Journal of International Law 23555.
NN Petro The Legal Case for Russian Intervention in Georgia (2009) 32 FordhamIntlLJ 1524
49.
L Alexidze Aspects of International Law of the Report of Independent International Fact-
Finding Mission on the Conflict in Georgia (2010) Journal of International Law Javakhishvili
Tbilisi State University 1523.
RD Asmus A Little War that Shook the World: Georgia, Russia and the Future of the West
(Palgrave Basingstoke 2010).
JA Green and CPM Waters (eds) Conflict in the Caucasus: Implications for International
Legal Order (Palgrave Basingstoke 2010).
G Hafkin The Russo-Georgian War of 2008: Developing the Law of Unauthorized
Humanitarian Intervention after Kosovo (2010) 28 BostonUIntlLJ 21939.
C Henderson and JA Green The Jus ad Bellum and Entities Short of Statehood in the Report
on the Conflict in Georgia (2010) 59 ICLQ 12939.
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014
K Natoli Weaponizing Nationality: An Analysis of Russias Passport Policy in Georgia (2010)
28 BostonUIntlLJ 389417.
H Hofmeister Dont Mess with MoscowLegal Aspects of the 2008 Caucasus Conflict
(201011) 12 San Diego Int LJ 14773.
TB Musselman Skirmishing for Information: The Flaws of the International Legal System as
Evidenced by the Russian-Georgian Conflict of 2008 (2010-11) 19
TransnatlL&ContempProbs 31749.
RP Chatham Defense of Nationals Abroad: The Legitimacy of Russias Invasion of Georgia
(2011) 23 FlaJIntlL 75-102.
Select Documents
Agreement on the Principles of Settlement of the Georgian-Ossetian Conflict [Soglaenie o
principach uregulirovanija gruzinsko-osetinskogo konflikta] (24 June 1992) (1993) 8 Bjulleten
medunarodnych dogovorov 25.
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v Russian Federation) (Provisional Measures) (15 October 2008) ICJ
Doc 2008 General List No 140.
COE Law on Occupied Territories of Georgia (23 October 2008) CDL(2009)004.
COE Parliamentary Assembly Opinion on The Consequences of the War between Georgia
and Russia (1 October 2008) Doc 11732.
COE Parliamentary Assembly Resolution No 1633/2008: The Consequences of the War
between Georgia and Russia (2 October 2008).
Constitution (Organic Law) of the Republic of South Ossetia (8 April 2001).
Constitutions of the Union of Soviet Socialist Republics of 1936 and 1977 (5 December 1936
and 7 October 1977) in FJ Feldbrugge (ed) The Constitutions of the USSR and the Union
Republics (Sijthoff Alphen 1979) 68170.
Georgia v Russian Federation (ECtHR) App 13255/07 (11 January 2012)
Memorandum on Measures to Provide Security and Strengthen Mutual Trust between the
Parties to the Georgian-Ossetian Conflict [Memorandum o merach po obezpeceniju i
ukrepleniju vzaimnogo doverija medu storonami v gruzino-osetinskom konflikte] (16 May
1996) (1996) 6 Diplomaticeskij vestnik.
Report of the Independent International Fact-Finding Mission on the Conflict in Georgia
(September 2009).
Russian-South-Ossetian Treaty on Friendship, Cooperation and Mutual Assistance (adopted
17 September 2008, entered into force 20 January 2009) (2008) 48 Sobranie
Zakonodatelstva Pos 5505.
Six-Point Ceasefire Agreement between Russia and Georgia (12 August 2008) in Report of
the Independent International Fact-Finding Mission on the Conflict in Georgia (September
2009) vol 3, 58794.
Treaty on the Creation of a Joint Military Base between the Russian Federation and South
Ossetia (7 April 2010) (2010) 9 Bulletin of International Treaties of the Russian Federation.
UNSC Agreement on a Ceasefire and Separation of Forces signed in Moscow on 14 May
1994 in Letter Dated 17 May 1994 from the Permanent Representative of Georgia to the
United Nations Addressed to the President of the Security Council (20 May 1994) UN Doc
S/1994/583/Corr.1.
UNSC Res 1808 (2008) The Situation in Georgia (15 April 2008) SCOR [1 August 2007-31
July 2008] 83.
From: Oxford Publ i c Internati onal Law (http://opi l .oupl aw.com). (c) Oxford Uni versi ty Press, 2013. Al l Ri ghts Reserved. Subscri ber: OUP - Law
Conference Access; date: 22 Apri l 2014