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Volume 108, Issue 7


Waging War: Exercising the Right to Selfdefense in Disputed Territories

Merrick Black

B.A., Yale University, 2019; J.D., Cornell Law School, 2024; Publishing Editor, Cornell Law Review, Vol. 109.

8 Jan 2024

This Note will focus on whether a state may invoke the right to self-defense in order to protect citizens living in a different territory. In my Note, I will examine the separatist regions of Abkhazia, Transnistria, and Donbas.

First, I will argue that Russia’s efforts to foster sovereignty in separatist regions by creating treaties with governing authorities, distributing passports, and encouraging secession do not establish a mandate for that state to protect individuals in the disputed territories. Second, I will argue that, even if Russia’s right to protect its citizens could extend to military action in a foreign state, Russia was not facing an “imminent” threat, as required by the Caroline test. Third, I will discuss how the legal implications of a separatist region’s sovereignty suggest that Russia’s previous and current incursions into separatist regions are illegal under customary international law.

I will end by discussing the U.N. member states’ options to dissuade inappropriate uses of force. The U.N. member states’ options are never pleasant. At a minimum, they may involve economic or other measures not involving the use of force. Ultimately, military incursions may require a use of the military instrument in order to restore international peace and security. In addition to enacting economic sanctions or beginning military action, the U.N. could also adopt changes to its Charter or pursue legal remedies. In this section, I will discuss the complications that arise with passing U.N. Security Council resolutions against individual members of the council, given the unilateral veto power of the five permanent members. Lastly, I will explore how the international community can find a path forward in Eastern Europe through amnesty, reparations, regime change, and criminal tribunals.

To read this Note, please click here: Waging War: Exercising the Right to Selfdefense in Disputed Territories.