The International Court of Justice (ICJ) ruled on 22 July that Kosovo’s declaration of secession from Serbia did not break international law. In fact, the International Court of Justice’s non-binding opinion was deliberately limited to the specific facts of the Kosovo case, and conferred no right on separatists to declare their own independence. Also, the court’s advisory opinions have no compulsory power, although they may have political consequences. But as the instant reaction of many governments to the July 22 decision makes clear, the court’s ruling is being regarded – more political decision.
International Court of Justice’s non-binding opinion had the catalytic effect starting discussion on Nagorno-Karabakh conflict. Indeed, both Azerbaijan and Armenian politicians responded the decision of ICJ on Kosovo. Nagorno-Karabakh’s separatist leadership has welcomed a United Nations court ruling upholding the legitimacy of Kosovo’s secession from Serbia and affirmed its applicability to the Armenian-Azerbaijani conflict. In reality, Article 81 of the ICJ ruling – unilateral declaration of independence accompanied by the use of force and violation of jus cogens considered to be illegal- supports Azerbaijan’s position. The Security Council resolutions condemning use of force against Azerbaijan, and also abhorrent crimes against humanity and war crimes committed in the course of Nagorno-Karabakh conflict in order to relate to the wisdom of this approach. According to Dilbadi Gasimov, Ph.D. in Strasbourg University and specialist on international law issues at the Center for Strategic Studies, “Decision of the ICJ does not count precedent for Nagorno-Karabakh conflict (1). The conflict sides over the Nagorno-Karabakh conflict explained their positions with two principles of international law -territorial integrity and self determination-which the court doesn’t touch on. ICJ’s rule on Kosovo, only answers the question: “Is the declaration of independence in accordance with international law.” At this time, to give a fair decision over the “Kosovo Case” and its links to other ethnic conflicts recent history is more explanative and we need to reference on it.
Lessons from History
Kosovo’s unilateral declaration of independence on February 2008 was brief, it did not change the world, as some feared, but it has ushered in a new phase in the post-imperial – “international law”. Arguably, when Kosovo unilaterally declared its independence from Serbia, it was considered a failure of the international community’s fair mediation and international law as well. Kosovo’s independence has been followed with great interest in other quasi states whose leaderships hope that this case will set a precedent and hence increase their chance of international recognition. The states that recognized Kosovo’s independence have, on the other hand, argued that Kosovo is unique and that its recognition does not set a dangerous precedent which might encourage other secessionist movements. If it does not set a legal precedent it will have consequences of a more political nature; it would affect the calculations made in other entities that have achieved de facto independence.Clearly, in the last two decade the international law has turned from “precedential” into”situatiojnal.” Precedents are interpreted exclusively depending on who benefits from the specific situation in the specific conflicting region.
The recognition of the independence of Kosovo by a number of States and the recognition of Abkhazia and South Ossetia by Russia were described by recognizing States as being so unique, so sui generis that they could not serve as precedents. Indeed, even Kosovo’s own declaration of independence explicitly addresses it. The preamble “observes” that “Kosovo is a special case arising from Yugoslavia’s non-consensual breakup
and is not a precedent for any other situation.”
That statement surely makes the declaration a historic rarity: a document in which the basis for independence is claimed to be unique and circumstantial (2).
Yerevan’s Dichotomy In the particular cases, the situation is clear, and there is not uncertainty about the “frozen conflicts” in the post-Soviet
area. Indeed, Kosovo’s independence has made Azerbaijan more open to considering a military solution to their internal conflict, fearing that in-
ternational support for their territorial integrity could be a matter of political decision. Because, in Kosovo case, also in Bosnia and Herzegovina, NATO and the Western countries punished the occupying country. But in Azerbaijan-Armenia case, the West seems to be punishing Azerbaijan.
Armenia, in its turn is caught in dichotomy. On the one hand, Yerevan doesn’t recognize independence of Kosovo, in the solidarity with Rus-
sia. On the other hand Armenia argues that the Armenian majority living there has the right to self-determination and independence. Azerbai-
janis argue that the right to self-determination does not extend to secession and must be exercised in the context of respect for territorial in-
tegrity. International legal expert James Crawford, states regarding on this issue that “in international practice there is no recognition of the
unilateral right to secede based on a majority vote of the population of a sub-division or territory. Even when there is a strong and sustained
call for independence it is a matter for the government of the state concerned” (3).
In principle, the Armenian people have already exercised their right for self-determination. In the contrary of Armenians, Azerbaijan believe that there are not direct parallels that are admissible between Kosovo and Nagorno-Karabakh conflict:
First, Kosovo’s status in former Yugoslavia is slightly different from that of Nagorno-Karabakh (NK). NK was part of Azerbaijan constitutionally and not constitutional part of USSR, whereas Kosovo was constitutional part of Yugoslavia.
Secondly, in Kosovo’s case the international community was engaged in every aspect since the NATO intervention to halt a humanitarian catastrophe until now and continues to be en gaged in Kosovo’s matters. Azerbaijan supported peacekeeping operation in Kosovo and Azerbaijani troops have participated in the North Atlantic Treaty Organization’s peacekeeping operation since 1999 till 2008. Whereas, the case of NK is an issue pertaining to Azerbaijan and Armenia without the involvement of the international community. Until then some aspects of it could be similar to Kosovo but what makes Kosovo a sui generis case is its entire process.
Thirdly, the international community intervened when ethnic Albanians were being cleansed from Kosovo, they remained impassive and apathetic when Azerbaijanis were the victims in Nagorno-Karabakh, undergoing ethnic cleansing by the Armenian armed forces. This has resulted in nearly one million Azerbaijani IDPs fleeing the region, and they remain unable to return home.
Meanwhile, trying to use Kosovo case as a model in the solution of Nagorno-Karabakh conflict by Armenia is not acceptable. It shows that Arme-
nian politicians want continuation of “not war-no peace” situation and solution of conflict by peaceful means is not on the agenda of the foreign policy of Armenia.
Finally, for now and the near future, the prospects for a settlement on Nagorno-Karabakh are not particularly bright, all the mediation activities of the third parties notwithstanding. Any movement on the Nagorno-Karabakh conflict settlement will require Armenian material concessions, such as troop withdrawals. Yerevan must understand that Armenian withdrawal of armed forces from the regions around Karabakh will make peaceful step, and there is no room for “precedent” games.
David Bosco, contributing editor at Foreign Policy Journal just fairly notes, rebels without similarly strong friends (US) will have less luck, whatever the judges in The Hague say. In the best case ICj Opinion is a message to ongoing peace negotiations which mentions that use of force and crimes against humanity will not be justified just because they are ‘successful’. QJ]
Zaur Shiriyev is foreign policy analyst at the Center for Strategic Studies in Baku, Azerbaijan. Ideas expressed here reflect the personal views of the author and do not represent the views of any institution.
1) Interview, 25 |uly,2010. Center for Strate-
2} Assembly of Kosovo, “Kosovo Declaration
of Independence,” February 17, 2008,
available at www.assembly-kosova.org.
3) International Crisis Group’s Europe Re-
port, Nagorno-Karabakh:A Plan for
Peace.ll October 2005