Panel 4 – The Functions of International Law: From Status to Process

Antal obtained his PhD candidate in public international law at Université Paris 1 (Panthéon-Sorbonne) and at the University ELTE of Budapest (co-supervision). He made his previous studies at the University ELTE of Budapest (law degree, 2003-2008), Central European University (Human rights LLM, 2008-2009) and Université Aix-Marseille III (MA, 2009-2010). His PhD research topic was “Grey zones”: the protection of human rights in areas out of the effective control of the State, while his postdoctoral research broadens his PhD topic and focuses on the rights and obligations of individuals in areas out of the effective control of the State under special branches of international law other than human rights law such as international humanitarian law, international criminal law, international labour law or refugee law.

The Time Element in the Settlement of “Frozen” Conflicts

The so-called “frozen” conflicts are defined by the doctrine as a series of on-going secessionist crises in the post-Soviet states of Moldova, Georgia, and Azerbaijan, northern Cyprus or Western Sahara, and recently in Ukraine which give rise to numerous international dispute settlement procedures. On the one hand, those unlawful territorial situations arose as a consequence of a relatively short-term armed conflict (some weeks or months). On the other hand, the “frozen” character of the dispute refers not only to the blockage of the dispute settlement, but also to the longstanding nature of the illegal situation. Consequently, the time element plays almost always an important role in the international dispute settlements, especially in the preliminary objections. In the first international court procedures on “frozen” conflicts, the European Court of Human Rights had to decide on historic wars of which events occurred long before the Convention came into force in the given territories. The Court consistently rejected the preliminary objections ratione temporis while concluding that the situation created by the challenged acts, i.e. the effects thereof, transformed the instantaneous act of the State into a continuous act.

Similarly, the lapse of time does not hinder, but facilitates the proceedings before the International Court of Justice. In the Georgia v. Russia case, the ICJ held Georgia’s claim inadmissible because in the relevant period, from 9 to 12 August 2008, the topic of ethnic cleansing had not become the subject of genuine negotiations or attempted negotiations between the parties. After the outbreak of the frozen conflict in Eastern Ukraine and the Crimea, Ukraine was keen not to initiate any proceedings too early, before any meaningful attempts and stressed in her application to the ICJ that the failure of negotiations “within a reasonable time” condition was fulfilled.

The paper argues that the lapse of time stabilizes the effectiveness of the illegally created territorial situations and de facto authorities, on the one hand, but facilitates the jurisdiction of international judicial procedures, on the other hand.