Imaginary Contradiction

18 november 2007

Tigran Torosyan

Resume: The principles of the Helsinki Final Act on the inviolability of frontiers and territorial integrity indicate beyond doubt that these principles are applicable to relations between states, while the principle of the right to self-determination applies to relations between a state and a self-determining entity that exists within its borders.

The difficulties involved in the determination of the future status of Kosovo, the autonomous province, have compelled experts and observers to more closely examine the problems related to the resolution of such conflicts. Needless to say, the settlement of the Kosovo standoff will not set a precedent for other conflicts. As Georgy Velyaminov, a leading research associate at the Russian Academy of Sciences Institute of the State and Law, points out in his article, Recognition of ‘Unrecognized’ States, and International Law (Rossia v Globalnoi Politike, 1/2007 – Russ. Ed.), a new precedent in international law is not a norm-setting occurrence. Every conflict has historical, political, legal, and other specifics that require a solution that takes all these specifics into account.

But the settlement of any conflict is only possible in accordance with the principles of international law and within the bounds of the UN and the OSCE. The settlement process in Kosovo and the Nagorno-Karabakh Republic (NKR) exemplifies the norms of international law with respect to conflict resolutions.

CONFLICT FACTORS

From a strictly legal perspective, a considerable number of conflicts are not international but a form of confrontation within one state or nation. Meanwhile, political development is becoming increasingly global. Thus, conflicts that originally had purely domestic causes – interethnic, social, economic, etc. – acquire a new dimension the moment the international community becomes involved in the settlement process.

The definition of the term “international community” is essential here, and will help us answer two questions that are necessary to achieve a successful conflict resolution.

First, who may act as a peace mediator on behalf of the international community?

The UN has an unquestionable mandate to conduct peacekeeping or mediation missions. Organizations that meet the requirements of Article 8 of the UN Charter also may engage in this activity. The mandate of a number of regional organizations (the Commonwealth of Independent States, NATO, the Collective Security Treaty Organization, and some others) is still moot. Meanwhile, their intervention in a conflict without the consent of the conflicting parties requires sanction from the UN Security Council.

Second, what goals need to be accomplished to achieve a settlement?

According to Alexander Nikitin, director of the Center for Political and International Studies, there are four main groups of tasks:

– legal (primarily pertaining to international law);

– functional (political, diplomatic, troubleshooting, etc.);

– military;

– ideological.

In light of the trends of the last few decades, peacekeeping missions can be classified as follows: conflict prevention, humanitarian intervention, military intervention, disarmament, and the guarantee of free movement.

Thus, Charles Dobbie describes international intervention in Kosovo (1999) as intervention to avert humanitarian catastrophe; the subsequent course of events also contained military intervention. As for the Karabakh conflict, on the initiative of the CIS Interparliamentary Assembly, a ceasefire agreement was signed on May 5, 1994 by three parties to the conflict: the defense ministers of Armenia and Azerbaijan, and the commander of the Nagorno-Karabakh Army.

There are a variety of factors – legal, political, historical, and others – in a settlement process. In each specific case, each one of these has a different impact. In their book, Self-Determination in the New World Order, Morton Halperin and David Scheffer propose the following classification of types of self-determination: anti-colonial, intra-state (e.g., Kosovo), extra-state (Nagorno-Karabakh and others), indigenous, representative self-determination and self-determination of displaced peoples. After analyzing this classification, Nikolai Ovanisyan, chairman of the Armenian Atlantic Association, concluded: “The right of Nagorno-Karabakh’s Armenians to self-determination is indisputable and does not affect Azerbaijan’s territorial integrity.”

But the legal component of conflict resolution has a special value, since any solution, as well as mechanisms for its implementation, must have a basis in international law.

FUNDAMENTAL DOCUMENTS

The fundamental document in conflict resolution is the UN “human rights bill,” comprising the Universal Declaration of Human Rights (December 10, 1948), the International Covenant on Civil and Political Rights (December 16, 1966), and the International Covenant on Economic, Social and Cultural Rights (December 16, 1966).

In accordance with the two Covenants, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (Article 1). Article 1.2 of the UN Charter also stresses the fundamental importance of the equality of peoples and establishes their right to self-determination.

These documents are binding on all UN member states; they offer a precise and exhaustive definition of the right of nations to self-determination. The fundamental character of the aforementioned documents is also enshrined in the Final Act of the Conference on Security and Cooperation in Europe (Helsinki, August 1, 1975): “The participating States confirm that in the event of a conflict between the obligations of the members of the United Nations under the Charter of the United Nations and their obligations under any treaty or other international agreement, their obligations under the Charter will prevail, in accordance with Article 103 of the Charter of the United Nations.”

Nevertheless, oftentimes, either by omission or by design, these articles are ignored in the process of conflict resolution, especially in Europe. Meanwhile, the Final Act is regarded as a fundamental document in this area. In particular, Peter Semneby, EU envoy for the South Caucasus, said that the Helsinki Final Act is the foundation for security and cooperation in Europe. It lays down various principles, including the principles of territorial integrity and the right of nations to self-determination. In practice, these principles often contradict one another, for example, when applied to the frozen conflicts in the South Caucasus. But this does not mean that the application of these principles is impossible in conjunction with one another.

This is a purely political approach to conflict resolution, based on principles and norms as opposed to international law. The problem is viewed through the prism of the search for a solution applicable to all conflicts in the South Caucasus. However, the conflicts substantially differ from one another.

THE LEGAL BASIS

An impartial, comprehensive analysis of the Helsinki Final Act shows beyond doubt that the assertions to the effect that it enshrines in law that in a conflict resolution, territorial integrity prevails over the right to self-determination, are untenable.

The Final Act declares that the participating States agree to respect and apply in practice ten principles regulating mutual relations between them. Here are the most relevant principles:

– refraining from the threat or use of force (II);

– inviolability of frontiers (III);

– territorial integrity of States (IV);

– peaceful settlement of disputes (V);

– respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief (VII);

– equal rights and self-determination of peoples (VIII);

– fulfillment in good faith of obligations under international law (X).

Furthermore, the declaration states that “All the principles set forth above are of primary significance and, accordingly, they will be equally and unreservedly applied, each of them being interpreted taking into account the others.”

In other words, far from stipulating the primacy of Principle 2 (or 3) over Principle 8, this document proclaims the equal importance of Principles 5 and 10, as well as all others, the fulfillment of which is equally binding on the participating states. Therefore, it only remains now to find an answer to the question: Is there really a contradiction between the principles of territorial integrity and the right to self-determination? Could the participating States have been so careless?

Such assertions hold no water, since the signatories to the Final Act included the two superpowers, as well as all leading European States, each provision of this document being of extreme legal and political importance to them. There is no contradiction at all – that is, if the Declaration of Principles is regarded in its entirety. The document stipulates that States are determined “fully to respect and apply these principles to their mutual relations and cooperation in order to ensure to each participating State the benefits resulting from the respect and application of these principles by all.” Principle 3 commands clearly and unambiguously: “The participating States regard as inviolable all one another’s frontiers as well as the frontiers of all States in Europe and therefore they will refrain now and in the future from assaulting these frontiers. Accordingly, they will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State.”

The same holds for Principle 4: “The participating States will respect the territorial integrity of each of the participating States. Accordingly, they will refrain from any action inconsistent with the purposes and principles of the Charter of the United Nations against the territorial integrity, political independence or the unity of any participating State, and in particular from any such action constituting a threat or use of force. The participating States will likewise refrain from making each other’s territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal.”

Therefore, all these principles apply to relations between states; states must respect both the inviolability of frontiers between them and their territorial integrity. Meanwhile, the right to self-determination has nothing to do with the problem of the inviolability of frontiers between any two States. It applies to processes occurring within one country, where the State is only one of the parties.

Evidently, Azerbaijan understands this difference very well, and precisely for this reason is attempting to cast the conflict between Azerbaijan and Nagorno-Karabakh as a conflict between Azerbaijan and Armenia. However, relevant documents of particular international organizations (OSCE, CIS, and others) that were applied to the early stages of the confrontation recognize Nagorno-Karabakh as a party to the conflict.

Resolution 1416, adopted by the Parliamentary Assembly of the Council of Europe (PACE), reaffirms: “Independence and secession of a regional territory from a state may only be achieved through a lawful and peaceful process based on the democratic support of the inhabitants of such territory and not in the wake of an armed conflict leading to ethnic expulsion and the de facto annexation of such territory to another state. The Assembly reiterates that the occupation of foreign territory by a member state constitutes a grave violation of that state’s obligations as a member of the Council of Europe and reaffirms the right of displaced persons from the area of conflict to return to their homes safely and with dignity.”

The Resolution, which corresponds to the principles of the Helsinki Final Act and the aforementioned UN documents, stresses that Nagorno-Karabakh may acquire its independence from Azerbaijan through a legitimate and peaceful process, based on the democratic and free expression of the people’s will. Should some territory be annexed to the Republic of Armenia, this would be regarded as a gross violation of obligations (territorial integrity).

In the reply by the CE Committee of Ministers to PACE Resolution 1690, this approach is formulated within the Helsinki Final Act format. The CE’s executive body notes with satisfaction the continuation of direct dialog on the peaceful settlement of this conflict within the framework of the Prague process and with the full respect of international law (in particular Principles 4 and 8 of the Helsinki Final Act – territorial integrity of States and the right of nations to self-determination). It reiterates its complete support for this dialog, in addition to its support for the co-chairmen of the OSCE Minsk Group.

Therefore, it is evident that conflict resolution is based on the right of nations to self-determination, which is a norm of international law, as well as the principle of inviolability of frontiers (territorial integrity) with a clear-cut demarcation guiding their application.

OTHER FACTORS

According to Alexander Aksenyonok (see: “Self-Determination: Between Law and Politics,” Russia in Global Affairs, 1/2007), a people may exercise their right to self-determination through cultural autonomy, federative or confederated state structures, national-territorial entities with different levels of economic independence, interstate integration (with the decentralization of part of their national independence to central authorities) and full independence.

But what makes acceptable a status that possibly implies limitations of independence?

According to Aksenyonok, it is the level of trust between two peoples, the guarantee of equal constitutional rights and freedoms, and trust in the central authorities’ commitment to ensure a worthy existence to all citizens. Essentially, the question boils down to what extent the aspirations of a people – striving for self-determination on the one hand, and proposals by a state exercising formal jurisdiction, on the other hand – are in compliance with the fundamental European values, which are human rights, democracy, and the rule of law.

In event of the need for conflict resolution, this approach can be applied, together with the norms of international law, within the framework of European structures. At the same time, it is necessary to take into account that a key role in conflict resolution is not the opinion of the State (e.g., the offer of “the broadest possible autonomy” by Azerbaijan or Serbia), but the desire of the people (or a national-territorial entity) exercising the right to self-determination, since it is their absolute right, which is not in any way limited by international law.

Thus, the UN Security Council approved specific “Standards for Kosovo.” This document states that Kosovo must reach, in full compliance with UN Security Council Resolution 1244 (1999), a set of UN-endorsed benchmarks for the democratic development of Kosovo. There is a lot of hope being pinned on the implementation of this document, based on the aforementioned fundamental values. Meanwhile, the plan forwarded by Martti Ahtisaari, the UN secretary general’s special envoy for Kosovo, is based on Kosovo’s striving for independence, and not on Belgrade’s desire or proposals – even though from the perspective of the aforementioned European values, the situation in Serbia is much better than in Kosovo. (Incidentally, in the event of Azerbaijan and the Nagorno-Karabakh Republic, the situation is vice versa: the level of democratic development in Karabakh seems to be higher.)

Russian political analyst Mikhail Delyagin proposed a different approach, which is actually Russia’s position with respect to conflicts breaking out in the post-Soviet space. The basic guideline consists of the simple and coherent democratic choice between the principles of territorial integrity and the right of nations to self-determination. If the population has proven its right to independence, or if its aspiration to integrate with another state is stronger than the desire to remain under the jurisdiction of the state from which it wants to separate, its directly expressed will cannot be ignored.

In an article entitled “Two Helsinki Principles and an ‘Atlas of Conflicts’” (Russia in Global Affairs, 2/2007), Vladimir Kazimirov, former co-chairman of the OSCE Minsk Group (Russia), argues that the Helsinki Final Act is untenable for two reasons. First, this document was adopted in the mid-1970s to formalize the balance of forces between the two world systems. But later, in the 1990s, we witnessed the disintegration of states and the emergence of new ones. Even if this document is considered valid, it must be borne in mind that all principles of the Helsinki Final Act have equal status; none are absolute.

Here is a case in point: if the principle of territorial integrity is absolute, why did it fail to work in the Soviet Union or Yugoslavia? What principle was applied in those territories? And who really has the right to decide on the extent of the application of the principle – the borders of the Union republics or lesser territorial entities? The West, which firmly rejects all things Soviet, nevertheless believes in the inviolability of the arbitrary Soviet frontiers. According to Kazimirov, the right of nations to self-determination is prevailing in the South Caucasus today, while the existence or absence of a precedent may only be a secondary factor. The principal factors are the time period, the geographic region, and specific circumstances.

The former ambassador justly points to the time factor, but it is impossible to reject the Helsinki Final Act if only because this document is still in effect and has not been superseded by another. And then we must ask what the position was on territorial integrity at the time when Kazimirov himself was involved in the resolution of the Karabakh conflict. This is a good example of how, in the course of a settlement, alongside the norms of international law and generally recognized principles, other factors come into play – in this case, the interests of one of the influential countries in the region – i.e., Russia.

“CRISIS GROUP” PROGRAMS

An international NGO known as International Crisis Group (ICG) plays an important role in conflict resolution. It works “through field-based analysis and high-level advocacy to prevent and resolve deadly conflict.” The organization is active in more than 50 countries on four continents, cooperating and receiving financial support from over 20 countries, as well as from numerous foundations.

The ICG’s two primary tools are field-based research and high-level advocacy; the former informs the latter. The NGO maintains teams of analysts in field offices worldwide, who are dispatched to areas at risk of outbreak or at the escalation point. They also work in regions where there is a recurrence of conflict. Based on the information these teams gather, the organization creates analytical reports with recommendations targeted at world leaders and organizations.

What programs does the ICG propose to resolve conflicts in Kosovo and Nagorno-Karabakh? They are based on the right to self-determination and other human rights. According to the ICG’s plan, it is necessary to assess the Kosovo authorities’ commitment to democratic principles, effective governance and human rights. If the assessment is positive, a UN special envoy should work out a Kosovo agreement and a Kosovo Constitution on the basis of the following principles:

– Kosovo will not merge with Albania or any other neighboring country or territory other than in the context of EU integration;

– a certain number of judges, to be appointed by the international community, will be co-opted into Kosovo’s higher courts, while international structures will guarantee that some key matters pertaining to minority rights and other coordinated obligations will be submitted for the consideration of these courts;

– the international Kosovo Verification Mission will keep the international community informed about the situation, making recommendations on the implementation of appropriate measures if Kosovo does not honor its obligations.

An international forum, arranged under the auspices of the UN, will discuss the Kosovo Agreement and Kosovo Constitution. Approval of the Constitution by Kosovo citizens in a referendum vote will give this agreement legal force. It is desirable that it also receives the backing of the UN Security Council. Even in the event that Serbia does not recognize Kosovo’s sovereignty, or an UN Security Council resolution is not adopted due to Russia’s position, a solution must not be postponed indefinitely. Independence should at least be recognized by the United States and a number of EU countries.

In the case of Nagorno-Karabakh, the ICG offers what it says is a “viable and effective program.” The group believes that “the final status of Nagorno-Karabakh should be decided by a self-determination referendum which would:

(a) be held after the return of displaced Azeris to former Azeri-majority areas in Nagorno-Karabakh, and after an international conference determines that Nagorno-Karabakh has met international preconditions for statehood, including the protection of minority rights; such review to be conducted for the first time  five years after the signing of the peace agreement;

(b) give Nagorno-Karabakh an appropriate range of options, including unity with, and secession from, Azerbaijan;

(c) be held with the exclusive participation of Karabakh Armenians and Azeris; and

(d) have its exact modalities agreed upon in talks chaired by the OSCE, based on the principle that all parties will recognize the validity of its result.”

Needless to say, ICG programs have their shortcomings, but the sheer fact that they are put forward shows that international NGOs as part of the international community have recognized Kosovo and Nagorno-Karabakh as subjects of the right to self-determination. The Council of Europe, the European Union and the OSCE contain similar provisions in documents and statements.

CONCLUSIONS

First, there is no contradiction between the principle of the inviolability of frontiers (territorial integrity) and the right of nations to self-determination, as enshrined in the Helsinki Final Act. Furthermore, they have absolutely different statuses (the first is but a political principle, while the second is also a norm of international law) and different spheres of application.

The principles of the Final Act on the inviolability of frontiers and territorial integrity indicate beyond doubt that these principles are applicable to relations between states, while the principle of the right to self-determination applies to relations between a state and a self-determining entity that exists within its borders. In accordance with the UN Charter, all states signatory to the International Covenant on Civil and Political Rights must respect the right to self-determination and encourage its application.

Second, conflicts are settled not on the basis of precedents but within the bounds of international law. The only possible basis for the resolution of the Kosovo and Karabakh conflicts is the right to self-determination. Key to conflict resolution is the fact that both Kosovo and Nagorno-Karabakh are parties to a conflict.

Third, in adjusting conflicts involving member countries of European organizations, another important factor is the parties’ approach toward the fundamental values of these organizations.

Last updated 18 november 2007, 12:26

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