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ICJ Kosovo Ruling Passes The Rubicon for New State

Armen Hareyan's picture

The top beneficiaries of July 22's non-binding advisory opinion by the International Court of Justice may be Nagorno Karabakh de facto Republic, which has fought and won a war against former metropolia – Azerbaijan at early 1990s, and now striking to gain international recognition. Kosovo may well open a door for new states such as Nagorno Karabakh, Abkhazia, Tibet and Northern Ossetia. Welcome to the 21st century of international relations.

The international community had been breathlessly waiting for the International Court of Justice – the highest court of UN-led world order – to issue an advisory legal opinion about the lawfulness of unilateral declaration of independence of one-time Yugoslavian region of Kosovo, which legitimately seceded from Serbia in February 2008. However, the best and worst scenarios of the ICJ ruling did not make any elaborations like Kosovo would be forced to re-unite with Serbia or the latter would recognize the secession of Pristina either way the Court's conclusion would look like. Even in Russia or Serbia hardly anyone imagined a scenario that Kosovo could be driven back to the arms of Belgrade for a friendly hug. Instead, ironically thanks to Serbia, this high court proceeding meant much for the rest of the world – from frozen conflicts in former Soviet Union area, such as Nagorno Karabakh, to potentially unstable Scotland or Basque County.

However, the background of the July 22 was quite easy predictable. On the eve of this the United States again pledged a "full support" to Kosovo, while KFOR commander-in-chief assured everyone the troops were ready to calm down any violence. The much anticipated news did not take long to be waited for. On July 22 the ICJ ruled in a 10-4 vote that Kosovo's declaration of independence from Serbia in February 2008 was legal.

At the Court hearings Azerbaijan, for instance, presented a written statement, where it claimed that "International law is unambiguous in not providing for a right of secession" (para. 24), while the Court concluded the opposite. In other words, as now a matter of fact, ICJ ruled that from now onwards unilateral declaration of secession was a legal norm. Perhaps this proved to be the utmost important and groundbreaking development that has been emerging since the first patterns of humanitarian interventions caused by mass and flagrant violations of human rights at the hands of nationalistic governments elsewhere.

As mentioned above, what did matter with this legal case – the possible impact of the decision to the other patterns of national self-determination movements around the world. No doubt that in Nagorno Karabakh, Abkhazia or Transnistria authorities followed the proceedings closely and passionately enough to draw some implications for themselves. Of course, states that oppose Kosovo independence and advocate for the absolute norm of sovereignty and territorial integrity – went on ignoring the ICJ decision. For instance, Russian Foreign Ministry announced that nothing might urge them to recognize Kosovo as an independent country, while it continues to advocate for South Ossetia and Abkhazia international recognition. Whatever it is - Kosovo has been enjoying the claimed independence since February 2008. And they do have the reason for a fiesta.

Early this year, in February, the Foreign Minister of Kosovo, Skender Hyseni, delivered a speech at the SAIS Johns Hopkins University in Washington DC. The speech was powerful and inspirational, where the Minister widely elaborated on the past and present and the future of the newly established and partly recognized Republic of Kosovo. At the end, a diplomat from Nagorno Karabakh Office in DC attempted to pose a question to the Minister concerning other newly emerging secessionist states in the world. The Minister, in an utmost self-confident manner replied that they already found their path to independence, and do not want to see themselves equal to any of the more unrecognized entities, concluding that all cases are unique in themselves. The old debate about basic uniqueness and commonalities between different cases will continue further, and there are no doubts about it. What is important – to have the precedents lessoned.

The leadership of Azerbaijan claims to have found a most relevant difference between Kosovo and Nagorno Karabakh cases. They insist that while Kosovo inhabitants are mainly ethnic Kosovars (Albanians) and that is a monoethnic entity, while the OSCE Minsk Group co-Chair countries, beginning with the Athens statement (Dec. 1, 2009) have stressed the norm of "equal rights" next to the one of "self-determination". Indeed, since that very document the mediators have been loudly speaking about Helsinki Final Act-based principle of "Equal Rights and Self-Determination of Peoples" but there is no evidence to claim that "equal rights" reference is made as of turning the conflict into a "bi-zonal" or "bi-communal" solution as it is to be in Cyprus. For instance, there are around 120.000 ethnic Serbian minority living in the Republic of Kosovo, they have their own MPs in the parliament, but they do not turn Kosovo into a bi-zonal state. After all, neither the OSCE Minsk Group mediators, nor the sides themselves have arrived at a consensus when the refugees should return to their homes, while, more importantly, the issue is not about the come-back itself, but to what laws these returnees should be abided to live on, if Nagorno Karabakh would remain, as they insist, at an interim status.

The ICJ proceedings offered interesting insights to the alleged core antagonism of the norms of territorial integrity and sovereignty of states, and, on the flip side, human rights and the right of people to self-determination. For instance, the British contribution to the discussions was the point that the norm of territorial integrity concerns only to relations between sovereign states, but not to the internal issues of a single state. This said, at the collapse of Soviet Union the Soviet Azerbaijan included both Azerbaijan-proper and Nagorno Karabakh Autonomous Region, and the conflict burnt out not because Armenia attacked Azerbaijan, but because the nationalists in Baku and elsewhere in Azerbaijan started a brutal campaign of ethnic cleansing to eliminate the Armenian presence from that soil. The same happened in former Yugoslavia, and later on in Serbia. The Serbian nationalism, fueled by Milosevic, massacred Muslim Bosnians in Srebrenica in 1995, thus trying to keep the former empire tidy. The new wave of human right violations and ethnic cleansing erupted in 1998-99 in Kosovo province which was eventually stopped by technically illegal, but fully legitimate NATO air strikes into Serbia, without a proper UN Security Council mandate. The same patterns of ethnic cleansing stood behind the Nagorno Karabakh secession which was "provoked" by the mass killings and anti-Armenian hatred in various cities of still Soviet Azerbaijan since February 1988. While the same on the pretexts, certain legal differences are there indeed. Nagorno Karabakh did its best to secede from Soviet Azerbaijan according to the laws of Soviet Union, while Kosovo did not resort to law at the outset of the conflict, in 1990 – they just declared their independence without any referendum (as it was in the case of Nagorno Karabakh), but on behalf of self-proclaimed national assembly.

Perhaps, well beyond legal approach and international law with regards to new states emerging on the political Atlas – for them to get established the neighborhood should be the first to recognize a new statehood and be ready and willing to build up bridges of cooperation. This is especially relevant to landlocked countries that need the land borders of their immediate neighbors to reach outside markets. In case of Kosovo – out of its immediate neighbors only Serbia so far refuses to acknowledge and recognize the independence, while Slovenia, Croatia, Macedonia, and Montenegro have done that. This means Kosovo is fully capable to enter into political and trade relations with its immediate neighbors and to develop its statehood based on friendly relations. This is obviously true at least for landlocked countries. The same is the case for Nagorno Karabakh. While now only having non-formal relations with neighboring Armenia, recently the NK leadership successfully concluded a business trip to Iran where they purchased some vehicles for agricultural sector. Still a minor step, but perhaps that was only the beginning.

The preliminary outcomes of the ICJ ruling will pop up to the surface a short while later. But still, its global effect to the other secessionist conflicts will be hard to decline. The Rubicon is now passed.

Written by Hovhannes Nikoghosyan
Mr. Nikoghosyan is a research fellow at Yerevan-based Public Policy Institute.

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