Participants of armed ethno-political
conflicts — simmering, or frozen but unresolved — tend to invoke
principles of international law that best serve their interests.
Some uphold the territorial integrity of nation states, while
others defend the self-determination of peoples. Although this is a
delicate matter, there is a pressing need to harmonize these
provisions of the Helsinki Final Act.
INTERNAL VS. EXTERNAL
Both of the abovementioned principles,
like all 10 Helsinki principles, have equal value, and each one
should be treated in conjunction with the others. However, some
believe them to be mutually exclusive; others are inclined to
interpret the first postulate as stipulating protection of state
interests and privileges, and the second as positing the defense of
individual or communal rights. In other words, the priority of the
rights of a state over human rights is being called into
question.
In some instances, attempts are made to
eliminate the contradictions by separating the spheres of their
application. Thus, the principle of territorial integrity is
regarded as external (as a guarantee against encroachment by other
states), while self-determination of peoples as internal. But
oftentimes states attempt to use the first principle to fight
internal movements for self-determination.
If the people agree to autonomy status,
which leaves national borders unaffected, the collision between the
two principles is minimized. But what happens when there are
attempts to secede, to break away from a «union» state? No
Constitution (except the former Constitution of the Soviet Union)
grants such a right. However, consider how many instances of
secession there have been — sometimes peaceful, but more often
bloody. In some instances, the first principle prevails, but then
the second wins over, and vice versa. Conflicts with a combination
of factors are especially complex: movements for self-determination
often rely on active support from the outside (cf. Kosovo and
Albania, Nagorno-Karabakh and Armenia, and South and North
Ossetia).
Typically, the first reaction to a
perceived clash of the two principles is the natural, conservative
defense of territorial integrity and the inviolability of state
borders. Only as it becomes clear that it is impossible to preserve
the status quo in one state are the rights of those advocating
self-determination recognized — at least, these forces are
recognized as a party to the conflict. Ironically, national
movement leaders, as a rule, stand firm on the self-determination
of peoples. However, once they have come to power, they change
allegiances to the principle of territorial integrity of
states.
This brings up the first question: How
applicable is this principle in a conflict situation? And the
second, how viable and effective is each of them in a specific
historical/geographic situation? It is essential to discover the
logic, the internal springs, and their connections with other rules
and norms. This would help mitigate the intensity of conflicts and
prevent the parties involved from blindly relying on a principle
that they believe better suits their interests.
There is a need for a concept to gauge
the effectiveness of both provisions with a clear-cut set of
criteria, as well as a comprehensive, systemic approach, not merely
an approach based on precedent (precedent is convenient on the
tactical level, but the issue at hand requires a more thorough,
in-depth study).
HERE AND NOW
The idea of a «Kosovo precedent”
provoked strong objections from the West. It would rather see
special emphasis being placed on the specific, even unique
characteristics of each particular conflict. But the concept of
precedent does not presuppose a comprehensive or complete analogy.
In the case with Kosovo, it is reduced to a narrow but fundamental
question: Can a breakaway state acquire independence without the
consent of the state from which it wants to secede? From this
question we can see that the entire campaign against the «Kosovo
precedent” is off the mark.
Yet it is more important to set the
record straight on the two principles as such.
First, a principle
(especially in interrelation with other principles) is not a dogma.
If any of the Helsinki principles can be assigned an «absolute
status,’ these should rather be two other principles, which are
also more applicable to conflict situations — namely, refraining
from the threat or use of force and peaceful settlement of
disputes.
Second, a principle is
an abstraction: it does not work outside specific circumstances.
They predetermine the viability and effectiveness of both
principles, which is relative and comparable. But a standard
yardstick is needed to gauge their effectiveness. Their application
in conjunction with «counterforce’ principles is a demand of modern
civilization: in the 21st century, the international community
should raise the bar on these standards.
Third, historicism is
an essential element in analyzing specific processes and events.
After all, the array of Final Act principles is a product of a
specific historical period, predetermined by the outcome of World
War II in Europe. This comprised the existence of two systems and
two opposing camps, as well as nuclear weapons. It serves as a kind
of a truce, a ceasefire — between antagonists in an effort to avoid
World War III. The 10 Helsinki principles provided a legal
framework to the balance of interests between the two centers of
power, serving as the «rules of the game» for relations between
states during that era. But that era is over.
Both principles are inviolable, but
today the emphasis should be shifted to their applicability and
especially their viability and effectiveness. No international
processes or events occur outside specific circumstances. So it is
not enough to accurately cite a principle: each side should also
substantiate its applicability and effectiveness.
What were the main characteristics of
the 1990s? It was an era marked by the disintegration of states and
formation of new ones in Eurasia and elsewhere. During that
tectonic, force majeure period, the principle of territorial
integrity proved to be not as fail-proof as it had been before. If
this proposition is absolute and incontestable as some say it is,
why then did it not save the Soviet Union or Yugoslavia or
Czechoslovakia or Ethiopia? The principle of self-determination
granted sovereignty to 23 Union republics (15 in the Soviet Union,
six in the SFRY, and two in Czechoslovakia), as well as to
Eritrea.
Kosovo, Abkhazia, South Ossetia,
Transdnestria, and Nagorno-Karabakh are both actors and products of
objective circumstances — demographic and political changes,
disintegration of states, wars, etc. It is essential to understand
the logic of change to take reality into account. Kosovo may become
yet another argument, but only an additional one, for one or the
other approach.
CRITERIA
There is a large number of factors in
the applicability and viability of principles in each specific
conflict — primarily the factors of «civilization”. Following are
some of these requirements: the period of time that a specific
entity has been part of a «union state;’ the ethnic makeup of a
territory that has become a subject of dispute, and its evolution
and dynamics over at least the past 100 years; is this a popular
movement or a struggle between some mafia clans; what kinds of
methods are being used — peaceful or terrorist; how long has a
seceding entity been in control of its territory; have there been
any clashes; if so, how long, frequent and intensive have they
been?
Needless to say, both the course and
specifics of an armed conflict are critical. Are all parties
committed to the idea that there is no alternative to a peace
settlement? Who advocates a peaceful solution and who is inclined
to favor the use of force? Which of the parties involved is ready
to back up its commitment to peace by signing a ceasefire
agreement? Who is for dialog, direct contacts and confidence
building measures, and who is against? Are there any displaced
persons and refugees? How many are there on each side? Are there
conditions for their repatriation or what impediments are there?
Who is observing the agreements that have been signed? Have the
norms of international humanitarian law been violated (obviously,
their gross and massive violations seriously affect the viability
of any of the two principles under consideration)? Have any
attempts been made to find a peaceful solution — for example,
through a referendum? If so, how was it organized? Or how can it be
organized? Does the entity in question have trappings of statehood,
self-governance, etc.? How representative and democratic is its
system, especially compared to the «opposite» system? What are its
chances for survival?
It is extremely important to
differentiate between the causes and effects of a conflict: each
has its own pre-history and legal specifics. Other essential
factors include the form of secession, the extent of succession
with respect to a «union» state, and the validity of these
succession rights from the perspective of international
law.
The recognition of a state’s borders by
the UN, the OSCE, the Council of Europe, etc. is oftentimes cited
as an argument here. This is important, of course, but has no legal
force since, in admitting new members, international organizations
do not approve their socio-economic or political systems, their
borders or prevailing religion. Any recognition of a state is a
political act: its legal effects rarely go beyond the framework of
relations between two particular entities.
There have been some rather amusing
developments along these lines. The Soviet Union’s administrative
borders, for example, were sometimes rather arbitrary (remember
Karabakh and the transfer of the Crimea to Ukraine). Today, by a
quirk, Westerners, who reject all things Soviet, uphold the
administrative borders that existed during the Soviet Union. Is
such a precedent good or bad? It is good if it can prevent new
conflicts. But what if bloodshed has already occurred in such
regions? Should we pretend that nothing happened?
In short, a well defined, graduated,
and formalized scale of criteria is needed. A broad discussion with
the participation of all parties concerned — including experts on
international law, political scientists, journalists, and diplomats
— would be extremely helpful in this situation.
This «political atlas» of confrontation
— i.e., a sum total of characteristic features of an era, region,
conflict specifics, etc. — will help establish a kind of a
viability and effectiveness coefficient for each of the two
principles under consideration. This would help cool some hot heads
and provide valuable guidelines to the international community in
its entire diversity.
But conflicts should be ultimately
resolved at the negotiating table or through popular referendums.
This rules out the use of «random» principles, ignoring essential
characteristics and circumstances of a specific
conflict.
AN «ATLAS OF CONFLICTS»
The international community is, without
a doubt, interested in a peaceful settlement of disputes between
states or parties to a conflict with full respect for the norms of
international humanitarian law.
With regard to conflicts, any of the
two aforementioned principles must definitely be linked with the
requirement for peace settlement. International organizations would
be well advised to be more consistent and persevering in this
regard. All Helsinki principles are elements of civilization as
compared to war. Therefore the scale of criteria should be built on
principles of civilization, with special priority being given to
the aforementioned requirements of the international community for
all parties to a conflict. There must be no incentives to a party
that continues to threaten the use of force, refuses to pursue a
peaceful solution, arouses hatred and hostility or destabilizes the
overall situation.
The development of a «political atlas»
of any conflict comprises three main stages:
-
elaboration of a general scale of
criteria or characteristics of conflicts; -
determination of the share value of
each criterion depending on how useful it is for a peaceful
solution; -
application of these guidelines to a
specific conflict, taking into account historical, geographic,
regional, and other characteristics of a conflict.
Needless to say, this is not about
producing some numerical indices but only general guidelines and
proportions.
