The Right of People of Nagorno-Karabakh to Self-Determination in the Light of the ICJ’s Advisory Opinion on Kosovo

The key issue of negotiations over Nagorno-Karabakh (hereinafter NK) conflict settlement is the status of the disputed region, which must be resolved on the basis of the right of nations to self-determination. In this regard many experts and politicians point out the mechanism of resolution of Kosovo conflict as precedential for determination of the NK status[1].

Truly, with its historical and political context of origination and further development the Kosovo conflict resembles the one around Nagorno-Karabakh, and what is the most important, the UN International Court of Justice—ICJ, played a considerable role in the settlement of Kosovo conflict, transforming it from strictly politically negotiable issue to a legal one. This fact is of utmost importance, since legal resolution of an international dispute has formal and definite rules, and hence, it is considered a much more reliable tool for the conflict settlement.

The legal mechanism for determination of the Kosovo status is valuable due to the very fact of the element of international judicial control over its resolution. Moreover, the ICJ advisory opinion of July 22, 2010, that recognized the proclamation of independence by Kosovo parliament on February 17, 2008 as lawful, for the first time has issued a valuable legal interpretation (legal doctrine) of the right of nations to self-determination in post-colonial context. Exact legal criteria have also been prescribed, which, in every single case, enable to legally assess lawfulness of an act of declaration of independence and secession by a national community seeking self-determination.

This fact makes Kosovo a very important precedent for the Armenian side both in the negotiations and in the context of international legal recognition of NK sovereignty.

The normative gist of the advisory opinion of the UN Court on Kosovo case is built upon reasoning on two interrelated issues: 1. Is unilateral declaration of independence from the parent state by the national community lawful under the international law? 2. Which criteria should be met by the act of independence or external self-determination to be considered legitimate according to international law?

Pursuant the ICJ, unilateral declaration of independence by a nation or people is not internationally illegal in itself, because the international law does not enshrine prohibition of such an act[2]. Factually, in this case the UN Court has applied the famous “Lotus presumption”—a well-known principle of international law, inherent to intra-state legal doctrine as “what is not prohibited is permitted.”[3] It follows that a parent state cannot delegitimize the act of declaration of independence by a national community, performing a cessation from that state through its right to self-determination. Surely, the parent state shall not use force against seceding community, as Serbia did against Kosovo and Azerbaijan did against the Armenian population in Azerbaijan, unleashing ethnic cleansings of Armenians in Sumgait, Kirovabad, Baku and elsewhere, and launching military aggression against the people of Nagorno-Karabakh, who were striving for their self-determination.

Besides that, the UN Court in Paragraph 80 of its advisory opinion has touched upon the correlation between two principles of international law: territorial integrity of states and rights of nations to self-determination. The ICJ states, that the principle of territorial integrity of states concerns relations between the states[4]. Thus, the UN Court has annulled another basis of disputing the secession act by a national community seeking self-determination: the supposed contradiction between self-determination of nations and territorial integrity of states and the dominance of territorial integrity over self-determination. As a result, the ICJ has emphasized the self-executive nature of the principle of self-determination of nations.

We are of the opinion that the logic of UN Court’s reasoning about the scope of action of the principle of territorial integrity is limited to the international obligation of states not to use force against each other[5]. Such an approach reveals the ICJ’s inner determination towards legitimation of the principle of self-determination of nations in post-colonial context. This fact is of paramount importance, because the UN Court is one of the basic subjects, contributing to the formation of international law.

The ICJ in its advisory opinion is also very informative about which formal criteria unilateral declaration of independence, as an international legal concept, shall meet to determine its being legitimate or not in each case.

Analyzing legal arguments of the ICJ’s advisory opinion in question, the UN Court’s legal stance on this issue may be defined in the following way: unilateral declaration of independence is lawful, if it is performed by an organization or body, representing all the people, seeking self-determination, and it shall not be a result or be connected with egregious violations of jus cogens or other norms of general international law by the people, seeking self-determination[6]. Hence, a national liberation movement or other representative body can act as a subject, representing the will of the whole nation, seeking self-determination[7].

Kosovo’s independence was declared by Kosovo’s parliament, having a high level of representativeness. However, it was formed under the control of the administration of the UN Mission in Kosovo and within its institutional support. Whereas, the act of Nagorno-Karabakh’s declaration of independence has preceded the minimum threshold of democratic legitimation, prescribed by the ICJ, because on December 10, 1991, Nagorno-Karabakh  Autonomous Region was proclaimed independent by means of direct declaration of people’s will: plebiscite or referendum, which is considered the supreme manifestation of democracy.

At the same time, the UN Court has emphasized that the lawfulness of unilateral declaration of independence is conditioned by the fact whether it is a result of or is connected with unlawful use of force or other egregious violations of peremptory norms of international law, i.e. jus cogens[8]. In this context it is necessary to note, that in case of Kosovo it is alleged, that the authorities of the region have primordially organized violence and even ethnic cleansings of national minorities of Kosovo and especially Serbians[9]. By contrast, it is obvious, that the movement for independence of Nagorno-Karabakh was peaceful and legitimate and was subjected to brutal force of Azerbaijan, authorities of which unleashed war against the population of Nagorno-Karabakh.

Thus, despite in some sense cagey stance of the ICJ and its reluctance to wholly reveal the inner sense and the application issue of the principle of self-determination of nations, the UN Court’s advisory opinion on the Kosovo case is of great importance for post-colonial interpretation of the aforementioned principle of international law and for the elaboration of legal bases of its application. It encourages liberation movements to further their political aspirations and to reach international recognition of their right to self-determination. It especially relates to the people of Nagorno-Karabakh.

As preceding paragraphs of the article show, Nagorno-Karabakh fully meets the legal criteria and postulates, set forth by the ICJ and, hence, has all the necessary legal and factual bases for having its independence internationally recognized.

Accordingly, the UN Court’s advisory opinion can become an influential trump for the Armenian side. In this respect it is necessary, that the Republic of Armenia initiated an active diplomatic process in the UN, Council of Europe, OSCE and other international organizations to secure adoption of resolutions and other documents, which will concern the issue of recognition and respect of the right of the people of Nagorno-Karabakh to self-determination. Certainly, these documents may refer to the UN Court’s advisory opinion on Kosovo, as a strong legal dictum.

It is also important to use the ICJ’s aforementioned judicial act to strengthen the position of the Armenian side in bilateral negotiations with other states on recognition of Nagorno-Karabakh’s independence. Besides that, if Armenian-Azerbaijani negotiations on peaceful settlement of Nagorno-Karabakh conflict will be held up, the advisory opinion on Kosovo might be a precedential legal basis for the Armenian side to initiate international proceedings in the ICJ for recognition and endorsement of the right of the people of Nagorno-Karabakh to self-determination.

Artashes Khalatyan

Assistant to MP, National Assembly of the Republic of Armenia

PhD Program Researcher, Law Faculty of Yerevan State University

Alumnus of the AIISA Leadership Academy Program

Improving Security Policy Debates in Armenia (NED)

The Armenian Institute of International and Security Affairs (AIISA)

[1] See the speech of the senior consultant of the OSCE D. Linch at NATO international seminar Parliamentary Assembly held in 2008 in Baku, https://armenpress.am/arm/news/140135/eahk-i-nerkayacucichy-kosovon-nakhadep-e-hamarum.html, G. NIksy, “Kosovo is a precedent for the resolution of the Karabakh conflict” 2012,  http://www.artsakhtert.com/arm/politics/item/2300

[2] See Advisory Opinion on the Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo,  p.32, para 84 (I.C.J. 2010)

[3] See Burri, Thomas. The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links German L aw Journal. 11(2010):881-890

[4] See  Advisory opinion, p. 30, para 80

[5] Not surprisingly the UN Court refers to Article 2 of the UN Charter and Article 4 of the Helsinki Final Act, according to which, states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state (See Advisory opinion, at 30). Moreover, there are much more international legal instruments, which prescribe alike status of the principle of territorial integrity in international relations. (See International Covenant on Civil and Political Rights, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations etc.)

[6] See Advisory opinion  p.20, para52, pp.30- 31, para 81 and 36-39, para 102-109

[7] See Cassese, Antonio. Self-Determination of Peoples. Cambridge: University Press,1995, pp.165-166

[8] See Advisory Opinion, pp. 30-31, para 81

[9] See A. Bolgari, Comparative Analysis of the Secessions of Kosovo and South Ossetia and Their Subsequent Independence Recognition, Kent State University, 2011, p.53, T. Torosyan, Similarities and Peculiarities of Nagorno-Karabakh and Kosovo conflicts., Yerevan, 2007, pp. 9,12,14