18.11.2007
Imaginary Contradiction
№4 2007 October/December

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.