15 Sep 2010
Nagorno-Karabakh and Kosovo: Politically Precedent, Legally Different
As the world fixed its gaze on the United Nations International Court of Justice’s (ICJ) unveiling of its advisory opinion on the legality of Kosovo’s Unilateral Declaration of Independence (UDI) on July 22, Serbia and dozens of other countries admonished that the ruling is perilous and might stoke and embolden secession-minded regions all across the world to reassert legitimacy of their cause.
In the latest twist to a saga, following a two-year silence, ICJ again rehashed the Kosovo’s independence debate by sagely advising on July 22 that since there is no prohibition to secession in international law (Bayefsky, 2000), the court finds the Kosovar UDI is in line with international law (Beaumont, 2010).
Despite its legal language, the ruling reeks of politics and is at the mercy of various, sometimes completely opposite interpretations of different countries (BBC, 2010). Azerbaijan was swift to douse the ruling and stridently denounced the speculations claiming that similar parallels could be drawn in its perennial disputed breakaway region of Nagorno-Karabakh, a territory predominantly populated by ethnic Armenians. Armenia immediately welcomed the decision, saying it may help international recognition of Nagorno-Karabakh (Harutyunyan, 2010). Although the court ruling might be interpreted as a glimmer of hope for separatist territories and usher them a new prospect, states with minority problems have thus far adamantly opposed recognizing the new entity to prevent a potentially devastating spillover effect in their countries, arguing that the controversial ruling might boost secessionist movements all over the world (The Economist, July 2010).
The ruling will not only beef up minority movements seeking emancipation, but also cause intractable violence to go viral (Dyer, 2010), considering that armed conflicts take place as parent states do not consent to secession — as exactly in the case of Kosovo.
To assuage fears, the US, in cahoots with many European Union member states, obstinately insist that Kosovo’s independence is a special and unique case — the case of a fringe on fringe — because years-long brutal Serbian oppression and ethnic cleansing campaign against the majority Albanian population of Kosovo made the country’s independence legitimate (The Moscow Times, 2010). An international administration was formed in Kosovo in 1999, when NATO forces pushed out Serb forces after a 79-day aerial bombardment.
Court Ruling Highly Political
The court explicitly reiterated that it is not dealing with the question of Kosovo’s independence but considering whether or not Kosovo’s UDI was in accordance to international law (Stevenson & Tanner, 2010). It was also quite surprising that Kosovo and other secessionist entities were impatiently waiting for the decision; however, the court’s ruling was largely predictable and legally insignificant (Cristol, 2010). Were it otherwise, the ruling would be a departure from orthodoxy and the court would invent something new in international law.
As mentioned above, despite its superflous nature, the ruling is highly political, largely manipulated by various actors to make their cause legitimate. Despite its distinct legal characteristics, states that recognized the independence of Kosovo welcomed the ruling as if the decision merely bolstered the legality of Kosovo. The highly politicized ruling created the fear of an emerging precedent across the globe.
There is now no shortage of explanations for this imbroglio, produced primarily after Kosovo declared its independence that was recognized by 69 countries thus far. Not bizarrely, the real stumbling block to the peace process between parent states and secessionist entities is not legal, but political. Relevant regulations dealing with secessionist issues are the most politicized and thorny affairs of the international law (Mancini, 2008). Neither court could conclude any consequential verdict so far that would set a precedent for other cases because each and every independence movement is unique in its nature and dynamics.
In its vast range of forms and expressions, arguments are made that the Kosovo case is “unique” or that it is an “esoteric legal point that will be forgotten in the rush of politics” (Borgen, 2008). Immediately following the court’s announcement of its ruling, the media outlets needlessly exaggerated the ruling and many mistakenly claimed that the UN’s highest court approved the legality of Kosovo’s statehood, because the crux of the ruling remained opaque for them (Gray, 2010). It further created a “public perception problem” (Stratfor, 2010), as the US and the EU treated the ruling as if the court in fact approved the legality on Kosovo’s independence. After the Kosovo ruling was made public, the US said that it was time for Europe to “unite” after the ruling, thus leaving no further debate on the legality of independence (AFP, 2010).
Since there is an ongoing debate among legal scholars regarding the framework of the self-determination principle, any verdict with respect to this could be politically motivated. James Ker-Lindsay, a Balkan expert at the London School of Economics, nicely argued in a New York Times article that the ruling has essentially said Kosovo’s legitimacy will be conferred by the recognizing countries rather than by the court (Bilefsky, 2010). Another troubling factor surrounding the court’s ruling was that the ICJ judges voted 10-4 in favor of it, and their decisions represented their own countries’ positions on this particular issue (Koogler, 2010).
Statuses of Kosovo and Nagorno-Karabakh Different
Although Kosovo was considered an “autonomous region” in Yugoslavia’s 1946 constitution, its status was largely upgraded in the 1963 and 1974 constitutions. The latest constitution boosted Kosovo’s power, bringing it to the status equal to the other founding six federative republics. Article 72 of the Soviet constitution said that each Union Republic “shall retain the right freely to secede from the USSR” but failed to note anything about autonomous regions. The right to secession was not the case with Nagorno-Karabakh and the Armenian-populated autonomous region did not have an equal right with other 15 titular nations (USSR Constitution, 1977). Secession for self-determination of a people need not violate internal law of a parent state, unless there is an apparent genocide or apartheid. Kosovo’s secession did not violate Yugoslavia’s constitution, as did the other six federative countries, but the Soviet Union’s constitution did not grant the right to Nagorno-Karabakh to seek independence.
The Soviet’s korenizatsiia or nativization policy was aimed to make small nations assimilate into broader titular nations, and thus the principle of granting autonomy to ethnic minorities in Union Republics was not aimed at protecting minorities but in establishing titular nations.
While unilateral termination of an existing legal structure and non-consensual secession from a parent state did exist in the case of Nagorno-Karabakh, Kosovo enjoyed NATO-led international administration for nearly ten years, which made it a “special case” apart from Nagorno-Karabakh, which is largely controlled by Armenian military forces.
Kosovo was administered by the UN under UN Security Council Resolution 1244 until June 2008. Although the non-binding preamble of the resolution affirmed former Yugoslavia’s territorial integrity, it denied Serbia’s role in governing Kosovo and established an interim UN administration to spearhead a sustained effort to determine Kosovo’s future status. Then Secretary of State Condoleeza Rice said in a statement by the U.S. recognizing Kosovo as an independent state on February 18, 2008, that the “unusual combination of factors” in Kosovo, including the extended period of UN administration, “are not found elsewhere and therefore make Kosovo a special case.”
Involvement of Third State in Nagorno Karabakh conflict
While presenting its case during public hearings before the ICJ in 2009, the US said the Kosovar UDI did not violate any principle of territorial integrity because under international law, only states must comply with this principle, and not internal entities. In this regard, the court did not have to decide upon the legality of Kosovo’s statehood or independence but only a narrow aspect of declaration of independence.
Kosovo’s case is different from the unilateral declaration of independence of Northern Cyprus or Southern Rhodesia, which were condemned by the Security Council based on the fact that “they were connected with the unlawful use of force or other egregious violations of norms of general international law.” Similar to these cases, the Nagorno-Karabakh conflict had an intense military phase of a process where people asserted a change in an existing legal structure — the established borders of Soviet Azerbaijan. Moreover, the Azerbaijani populations both in and around Nagorno-Karabakh had been expelled en masse toward the east. These factors in the Nagorno-Karabakh conflict and similar precedence in the cases of Southern Rhodesia and Northern Cyprus will most likely make the UDI of Nagorno-Karabakh ruled as being “illegal.”
In addition to the use of force, the independence movement in Nagorno-Karabakh was not a pure reflection of people asserting self-rule but heavily supported by neighboring Armenia. On December 1, 1989, the Supreme Soviet of Armenia adopted a resolution on the unification of Nagorno-Karabakh with Armenia, which was a clear sign that Armenia was directly interested in annexing the territory.
Although there are notable signs that ethnic Armenians living in Nagorno-Karabakh have long sought emancipation, the movement itself would not have come into being had Armenia not lay claim over Nagorno-Karabakh in an irredentist manner. Irredentism is defined as the attempt by one state to detach land and people from another to achieve incorporation within its boundaries (Chazan, 1991). These ethnic conflicts involve whole communities and states with very little negotiations, high levels of violence, and occasional escalation to full-scale war (Carment & James, 1998). Political movements aiming to reunite “lost territories,” where their ethnic “brethren” are concentrated, are considered to be sacrosanct in international law. While the Kosovar Albanians’ independence movement was a legitimate claim of self-determination, Armenia’s heavy involvement in the Nagorno-Karabakh case rules out any Kosovo precedent over the disputed territory.
Close inspection of the differences between Kosovo and Nagorno Karabakh conflicts show that due to the political nature of the ruling, difference in statuses of Kosovo and Nagorno Karabakh at the time of secession and the existence of violence with the involvement of the third state make Kosovo case not applicable to Nagorno Karabakh.
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