15 Sep 2010
International Court of Justice Ruling on Kosovo and the Ultimate power of Precedence
Right after the International Court of Justice (ICJ) – the highest court of sovereignty-centered and UN-led world order with universal jurisdiction – issued its advisory opinion on the lawfulness of unilateral declaration of independence regarding the one-time Yugoslav-Albanian enclave of Kosovo, tensions and discussions over its character swept media outlets. This is especially relevant to the regions where similar conflicts exist, where discussions of precedential weight of the advisory opinion swept all other issues from the agenda. The Foreign Ministry of the unrecognized Nagorno-Karabakh rushed to issue a statement on July 24, 2010 that the ruling is “of extremely legal, political and moral, as well as universal precedent-related significance and cannot be limited just with Kosovo’s example.”
Whether or not the ICJ decision would be referred to as a precedent legally, as the statement above showed, it would encourage other secessionist entities around the globe to act and hope for international recognition. Naturally, whether Kosovo will be set as a precedent or not strongly depends on the stance of the leading countries supporting Kosovo’s bid to become a full member of the international community. Currently, those powers say all conflicts should be dealt individually, claiming that the international atmosphere over emerging statehoods has successfully transformed (ICJ, 2009a).
Thus, when it comes to other unrecognized entities around the globe, it is extremely important to acknowledge that the power of precedence rests not in the ruling itself, but within the proceedings and statements made by different countries at ICJ, which make the real atmosphere of change in international relations when it comes to the issues of territorial integrity, inviolability of frontiers, and self-determination. The change is legal in nature, not political.
As Russia is now enjoying a year of de facto unilateral mediation efforts, of course with coherent appreciation by France and the United States, two ideas voiced by the former Russian representative at ICJ, Ambassador Kirill Gevorgian, at its Public Sitting in December 2009 are worth discussing. Firstly, he noted that, “For Kosovo to be able to rely on ‘remedial secession’ in 2008, it has to demonstrate that the situation had aggravated as compared to 1999… By 2008, there was clearly no threat to the population of Kosovo coming from the Serbian authorities…” (ICJ, 2009b, p. 44). Drawing parallels with Nagorno-Karabakh, this logic grants even more rights for Stepanakert to seek international recognition as an attempt to secure the future of Karabakh in the face of daily threats voiced by Baku to solve the conflict with arms. Secondly, the ambassador claimed that violations of human rights of Kosovars during the dissolution of Yugoslavia in the early 1990s could not justify the unilateral declaration of independence in 2008 (ICJ, 2009b). It is noteworthy that after the humanitarian intervention by NATO forces in 1999, a UN transitional authority in Kosovo was established – obviously aiming to contribute to state-building in the breakaway region. Less than a decade later, the Kosovo Assembly, building the grounds for an effective statehood, expressed the will of the population of the enclave and declared independence, which, according to the ICJ ruling, the international law does not prohibit. On the contrary, the Karabakhis proclaimed independence in September 1991, in the course of USSR dissolution, though no State – even Armenia – has officially ever recognized that independence. As former Foreign Minister of Armenia Vartan Oskanian (2008) put it in а speech in 1999, “We (Armenia) did basically NATO’s job, what NATO has done recently in Kosovo”.
Having presented this tiny instance, of course the ICJ ruling will stay politically meaningless until the states sponsoring it change their minds. However, legally this is yet the first-ever prestigious ruling in favor of unilateral declaration of independence of a secessionist entity to become a de jure statehood.
While the UN Security Council, a political body, in 1983 declared the unilateral declaration of independence of Northern Cyprus to be unlawful (Res. 541), the ICJ, a legal body, established a legal precedence that unilateral declaration of secession was a legal norm.
Today, no one seriously denies that the authorities in the (de facto) Nagorno-Karabakh Republic have their sovereignty over certain territories where some people live, and those people do recognize the legitimacy of the central authorities. Another important element to be labeled as statehood, according to the Montevideo Convention (1933), is a permanently functioning government, which is successfully configured at general elections. In 1992, a decision was made by the Conference on Security and Cooperation in Europe (CSCE) in Helsinki where the states decided to establish and invite the “elected and other representatives” of Nagorno-Karabakh to the future Minsk Conference. Obviously, the conduct of general elections thus becomes implicitly encouraged by the OSCE itself, making it silly and unlawful to declare those elections as illegal each time. A well-known Karabakh researcher Thomas de Waal (2010) raised a question of why “the international community still routinely refuses to recognize elections [in Nagorno-Karabakh], in contrast to, for example, its more pragmatic approach to elections in Northern Cyprus.” The only reason for doing so is due to the fact that the OSCE exists on political grounds, not legal.
Since 2005, Azerbaijan has been trying, often successfully, to have alternative discussions and subsequent resolutions elsewhere (with unconditional support from Turkey), while Armenia and Nagorno-Karabakh together with the OSCE Minsk Group Co-Chairs always criticize these efforts, claiming they undermine the mainstream peace process. For instance, during the 2008 vote in the UN General Assembly, the representative of the United States underscored that resolution A/RES/62/243, presented by Azerbaijan, “selectively propagated only certain of those principles (of Helsinki Final Act) to the exclusion of others, without considering the Co-Chairs’ proposal in its balanced entirety” (United Nations, 2008).
To put the discussion of this contribution on a wider canvas, we should acknowledge that a conflict resolution process in any pattern of international disagreements receives its solution in specific frameworks of international mediation, which is explicit only towards a particular situation, considering the politics, political economy, and geopolitics surrounding the conflict. In order to find and employ that specific mediation format, the consent from all relevant parties is required. And, it is notable that the usage of the wording “all relevant parties” means not only the ones directly involved in the hostilities but also all the stakeholders that have a share in the geopolitics. The snapshot of the issue of mediation is an utmost important component of the conflict itself since a short while later it actively plays a role of a determinant to the future solution. For instance, though “impartiality” is a vital component of any mediation effort, over time the peacekeepers side with either of the parties. Again, the example of KFOR in Kosovo is a good pattern to show how impartiality turns into side taking. The same is legitimately true regarding Russian peacekeepers in South Ossetia. Thus, the format of mediation is a vital issue to secure a lasting settlement.
This is essentially true with the Nagorno-Karabakh peace process, which underwent tremendous difficulties to find the current framework of negotiations. While countries such as Finland, Italy, Russia and Iran tried to have their own input in the pursuit of a lasting solution, in the 1994 OSCE Budapest Summit the institute of triple co-chairmanship was established. Despite the continuous efforts by Azerbaijan to jeopardize the Minsk Group’s contribution and take the Nagorno-Karabakh issue to other institutions such as PACE or the UN, the co-chairmanship proved to be mostly effective.
Since 2005, when the Karabakh peace process entered a decisive phase, the Azerbaijani leadership has done their best to push the process into a wider perspective involving other regional arrangements and the UN podium for that. An inter-parliamentarian commission on Nagorno-Karabakh within PACE (now suspended) and continuous attempts to adopt a resolution in the UN General Assembly (passed March 2008) are sound facts for this. During this course, both the leaderships of Armenia and Nagorno-Karabakh and the mediators have repeatedly warned Azerbaijan that taking the issue out of the mandate of the OSCE Minsk Group is capable of being destructive to the whole resolution process. The best example of this negative approach of Co-Chair countries has been the “no” vote to the 2008 UN resolution. However, recently Azeri news services announced that a new draft resolution on Nagorno-Karabakh had been put into circulation for the upcoming UN 64th General Assembly, for a vote on September 7.
After years of tireless efforts at the UN General Assembly to condemn Armenians for winning the imposed war since the Kosovo ruling, the press spokesman of the Azerbaijani Foreign Ministry, Elhan Poluhov, said in a public statement on July 25, 2010 that the Nagorno-Karabakh issue is the monopoly of OSCE Minsk Group to deal with. For quite some time after the ICJ decision, the Azerbaijani leadership backtracked on other efforts, publicly supporting the OSCE format of the peace talks. Thus, a paradox popped up. Whatever it is, the UN General Assembly will vote on September 9, and the Co-Chairs and state parties will come out with predictable statements, as was the case in 2008.1 The absence of any legal weight of General Assembly resolutions does not make sense for us to elaborate more, even though certain weight in domestic political manipulations will eventually take place. For instance, the parliamentary elections campaign in Baku will be starting in the days to come.
The ICJ ruling can potentially have the power of positive transformation on the Karabakh issue. Some reports and rumors have spread in late August that the Armenian authorities, co-signed and co-authored with the authorities of Nagorno-Karabakh, were about to circulate a draft resolution in the UN General Assembly, asking the advisory opinion of the ICJ over the legality of the constitutional referendum in Nagorno-Karabakh, which took place in December 2006. The main legal obstacle for this to happen was the reservation made by the Armenian National Assembly in 1996 (decision N-131-1, October 23, 1996) regarding Article 66 of the Vienna Convention on the Law of Treaties, which requires the mandatory consent of all parties to any particular case before applying to an international court or arbitration. This might have been an utmost fascinating development of the peace process that did not happen, perhaps by the initiators assuming that someone on the other side of the barricade might assess that as a long-awaited pretext for waging a new war, while peace proved to be fragile thus far. Having said this, the only effective implementation of the precedential weight of the Kosovo case, as Serbia utilized, may be for the initial state-parties to the Nagorno-Karabakh conflict — the people of Karabakh and the Republic of Azerbaijan — to turn to the “voice of reason” and seek a legal settlement in an international body of arbitration, instead of the political manipulations we have witnessed so far. Obviously, the imposed arms race and military buildup demonstrate the wrong way to go.
Asbarez Online. (2010, August 16). Gul Criticizes OSCE Minsk Group. Retrieved from http://asbarez.com/84177/gul-criticizes-osce-minsk-group/
De Waal, T. (2010). Remaking the Nagorno-Karabakh peace process. Survival, 52(4), 159-176.
United Nations. (2010, March 14). General assembly adopts resolution reaffirming territorial integrity of Azerbaijan, demanding withdrawal of all Armenian forces. Retrieved from http://www.un.org/News/Press/docs/2008/ga10693.doc.htm
Hurriyet Daily News. (2010, August 27). Armenia criticizes new UN resolution. Retrieved from http://www.hurriyetdailynews.com/n.php?n=armenia-criticizes-new-un-resolution-2010-08-27
International Court of Justice. (2009a). Request for an advisory opinion of the international court of justice on the question “Is the unilateral declaration of independence by the provisional institutions of self-government of Kosovo in accordance with international law?” Retrieved July 24, 2010, from http://www.icj-cij.org/docket/files/141/15702.pdf
International Court of Justice. (2009b). Public sitting held on Tuesday 8 December 2009, at 10 a.m., at the Peace Palace, President Owada, presiding, on the accordance with international law of the unilateral declaration of independence by the provisional institutions of self-government of Kosovo. Retrieved September 3, 2010, from http://www.icj-cij.org/docket/files/141/15726.pdf
Nagorno-Karabakh Republic Ministry of Foreign Affairs. (2010). Statement of the NKR Ministry of Foreign Affairs. Released on July 24. Retrieved from http://www.nkr.am/en/news/2010-07-24/283/
Oskanian, V. (2008). Speaking to be heard: A decade of speeches. Yerevan: Civilitas Foundation.
At the time of finalizing this article on September 8, some controversial news popped up that there is a consensus between the parties, with the assistance of OSCE Minsk Group, to withdraw the Resolution A/64/L.57 from the provisional agenda of the General Assembly, and have compromise-driven win/win solution to the issue of hosting fact-finding mission in Nagorno-Karabakh. Indirectly, the statement of the Co-Chairs made in Baku on September 6 and available on the OSCE web site indicates that a win/win compromise has been reached.