Artsakh and ICJ’s Advisory Opinion on Kosovo

BY MICHAEL MENSOIAN

On Oct. 8, 2008, the United Nations General Assembly requested the International Court of Justice to provide an advisory opinion on the question “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” The question was narrowly framed by the General Assembly, and the court’s advisory opinion on July 22 simply stated that “…the declaration did not violate any applicable rule of international law.” The court did not seek to break new legal ground, but in their deliberations certain principles that have application to Artsakh’s case were referenced.

Several states that participated in the proceedings argued that “… the population of Kosovo has the right to create an independent state either as a manifestation of a right to self-determination or pursuant to what they describe as a right of ‘remedial secession’” [emphasis mine] given the condition that existed in Kosovo. However, the court noted that this claim in almost every instance was not the primary argument advanced, but a secondary one.

The court noted that “… one of the major developments of international law during the second half of the twentieth century has been the evolution of the right of self-determination.” That “…the international law of self-determination confers upon part of the population of an existing State a right to separate from the State…is…a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question.” The court noted further that “Similar differences existed regarding whether international law provides a right for ‘remedial secession’ and, if so, in what circumstances.” Although the interpretation and application of these principles are not universally agreed upon by nations, neither are they prohibited by international law. It should be obvious that Artsakh’s case will rest on an effective interpretation and application of these principles. International law does not necessarily yield yes or no answers, but deals in varying shades of gray.

Several of the states that participated in the proceedings maintained that “…the prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity.”  However, although Article 2, Paragraph 4 of the Charter of the United Nations declares that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State…” the court stated that this principle is “…confined to the sphere of relations between [sovereign] States.” Artsakh is not a state as that term is used in the forgoing declaration. Therefore it has no applicability to Artsakh. With respect to its application to Armenia, the principle of humanitarian intervention must be intensively evaluated by both Yerevan and the ARF to provide leverage justifying its intervention in Artsakh. If the principle of territorial integrity were the determining factor, it would automatically negate the right of any people to exercise the principles of self-determination or remedial secession.

It is incumbent upon Yerevan and the ARF (since the latter is capable of activities that Yerevan is unable or fearful of doing) to undertake a bolder and more definitive role with respect to Artsakh. President Ilham Aliyev’s constant threats of military action and his statements alluding to the progress being made in the negotiations (of which Artsakh is not an active participant) or of agreements close to being reached are contributing to an increased anxiety and a serious concern for the future by the Artsakh Armenians. The latest incursion across the Line of Contact (LoC) in which four Karabakh Defense Force personnel were killed by the intruding Azeri force only heightens this apprehension. Further, Artsakh (and Armenia) cannot continue to appear either incapable or indecisive in responding to these constant military threats, public shows of force, or military transgressions without mounting an effective response. The Minsk Group is remiss in its obligations by allowing these actions by Azerbaijan to continue. It is an absolute requirement—especially with respect to any Azeri military action—that a response by the Karabakh Defense Force is initiated within an appropriate period of time. These precise military strikes are necessary to show the determination and the ability of Artsakh to defend itself.

Armenia cannot continue to simply voice its displeasure at these actions. Such a restrained response can justifiably be interpreted by both the Azeris and the Artsakh Armenians as a complete lack of resolve by Yerevan. Our brothers and sisters are living within a potential combat zone. Yerevan’s policies must serve to fortify their determination as they rebuild Artsakh and their personal lives. As an aside, this might give Tbilisi pause to reconsider their blatant policy of economic, political, religious, and cultural repression of the Javakhkahayer (Javakheti Armenians). If we can’t succeed in Artsakh, it will only be a matter of time before Javakhk is irretrievably lost as a result of out-migration and forced acculturation. Presently, Azerbaijan is waging a psychological campaign with their military threats, LoC incursions, and disinformation. And, unfortunately, it is having its effect. Yerevan’s complacency and the ARF’s “aloofness” only exacerbates the situation.

It should be noted that the Helsinki/Madrid Proposals that are constantly being trotted out by the Minsk Group (most recently only a few weeks ago) as the basis for negotiating Artsakh’s status continually speak to the principle of territorial inviolability. Of greater importance, the right of self-determination contained in these proposals is so circumscribed by qualifications that it becomes meaningless for the Artsakh Armenians. The only reason to continue the flawed process of negotiating is to buy time, but the question becomes for what purpose.

Although Artsakh has a stronger claim for de jure recognition than Kosovo, recall that Kosovo was encouraged by its benefactor the United States to declare its independence from Serbia. And immediately following that declaration, the United States was the first nation that recognized Kosovo’s independence. On the same day in what was most likely an agreed upon action, the United Kingdom, France, Turkey, compatriotic neighbor Albania, and the U.S.-dominated government of Afghanistan followed suit. Yet when Russia recognized Abkhazia and South Ossetia as independent states, the United States, France, and the United Kingdom strenuously objected. As expected, the recent advisory opinion by the International Court of Justice was hailed by the United States as supporting the legality of Kosovo’s independence while Russia took the opposite tack, claiming the opinion provided no legal basis for Kosovo’s independence.

The ARF, with or without the cooperation of Yerevan, must develop a supportable case for Artsakh’s independence. The loss of Artsakh will insure the loss of Javakhk. If these two regions of historic Armenia presently inhabited by Armenian majorities cannot be saved (Artsakh as an independent entity and Javakhk as a viable Armenian “exclave”), then what credence can be given Hai Tahd or the leadership of the ARF?

Given the significance of Artsakh and its potential impact on Javakhk, the ARF might reconsider the desirability of focusing its considerable influence and efforts almost exclusively on genocide recognition. Recognition by the United States Congress has limited political currency. At its very best, if successful, passage will assuage the hurt carried by Armenians these many decades. There can be no underestimating or denying the value of what would be a significant moral victory. However, Artsakh’s independence would represent a major political triumph and its loss a catastrophic defeat. With that in mind, is it fair to ask what support has been forthcoming from those governments that have officially acknowledged the genocide? Do they make (or desire to make) any connection between the moral issue of the mass murder of some 1.5 million innocent Armenian men, women, and children by Ottoman Turkey and the unresolved political and socioeconomic issues that are its legacy? The answer is no!

Unfortunately we are not privy to any understandings or agreements that may exist between Russia and Armenia-Karabakh, or between Iran and Armenia-Karabakh. Contrary to any public agreements, understandings or diplomatic cordialities that may exist from time to time between Russia or Iran and Armenia’s neighbors (Turkey, Azerbaijan, Georgia, as well as the United States), it is logical to assume that it would be counterproductive to Russian interests (and Iran’s as well) to allow Turkey with the United States to dominate the south Caucasus. For both Russia and Iran, Armenia-Artsakh is all that remains to block a resurrected pan-Turanian expansion into central Asia. That is an important factor in the Artsakh equation that should encourage a bolder proactive effort by Yerevan and the ARF.

Working from that assumption and the importance a victory in Artsakh has for Armenia and the political fortunes of the ARF, it is necessary that a comprehensive public relations offensive be undertaken that will explain a) why the Artsakh Armenians exercised their right to self-determination and declaration of independence; b) why remedial secession is applicable; and c) the significant progress in state-building that the Stepanakert government has made.

This public relations offensive would involve hosting conferences and symposia to inform and influence key legislators (especially in the United States Congressional Armenian Caucus), corporate leaders, representatives of relevant international organizations, and advocacy groups. Recognition is a highly subjective political act exercised for varying reasons by each of the nearly 200 sovereign countries. Because it is subjective, it is important to develop a compelling rational that will support Artsakh’s cause. In support of this objective, the convening of experts in Russian (Soviet) constitutional law and scholars on relevant aspects of international law is required. Waiting for good things to happen is not an acceptable alternative.

Another aspect of this public relations offensive would involve ongoing visits by these same key legislators, corporate heads, entrepreneurs, and leaders of advocacy groups to Artsakh. How many such groups have been invited to Artsakh during the past 10 years to see first-hand what has been accomplished and to have the opportunity to speak to government officials and private citizens? How much information is available to support Artsakh’s cause? In this technology dominated era where information can be instantly disseminated worldwide there is a woeful lack of relevant material in various formats. Is it because we have nothing to say? Because we have no competent professionals to format the information? Or is it be because disseminating information is not considered vital to the objective?

It is said that nothing comes to the man who waits. Too often in our past we have patiently waited and in the end received nothing but disappointment and a sense of betrayal. An Artsakh policy cannot be bound by fear that it might provoke a resumption of hostilities by Azerbaijan or that it runs counter to what the Minsk Group believes is appropriate. Baku has too many constraints against unleashing another war. The international oil companies want peace to recoup their investments. Aliyev and his lackeys are too busy amassing personal fortunes while most of their countrymen languish in near or absolute poverty. Then the danger always exists that another war could result in a greater loss of territory or a possible coup d’état by disgruntled army officers. How Russia or Iran (and possibly the United States) might respond are significant unknowns and in the volatile region of the Caucasus, any conflict could have serious unintended consequences (especially for Azerbaijan’s Turkish ally).

This is without question the most important moment in the modern history of Armenia. Success will determine the political and economic viability of the Armenian nation within and beyond the borders of Mer Hairenik for decades to come. This is not the time for either reticence or subservience by our leadership whether in Yerevan or in the ARF. Simply put, the future of the nation is at stake.

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Writer’s note: Azerbaijan was one of 25 countries that filed written statements in response to the Court’s request for comments. Azerbaijan also presented an oral argument before the court. Armenia did not respond.

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One Comment;

  1. stephen Bekian said:

    Armenia should not sleep re gharabakh or Artsakh , it is time to recognise that enclave by yerevan
    the more we sleep and waite the more chances are given to the Azeries to get cocky , and the more cocky AZeris get Armenia will look weak and if we look weak , that’s when we lost it …………

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