Monday, May 2, 2016

Nagorno-Karabakh: right to self determination or state territorial integrity?

No end in sight. The resumption of hostilities of the 2-5 April and the return to the ceasefire agreed in Moscow might have shaken the status quo, but definitely there's no hope that April 2016 will be remembered as the month that made the settlement of the Nagorno-Karabakh (NK) dispute closer.
The venues of negotiation ( the Minsk group, plus single Russian initiatives, presidential or whatever) are still there, as - by the way - the ceasefire violations.Casualties among civilians and soldiers occurred after April 5, as at least 2 Azerbaijani civilians died last week, while since the last official death toll announced by the NK on April 14 (92) were increased by 7 more military staff who lost their life by the end of the month.

So not only the situation remains tense, but from some points of view it's deteriorating. During the so called 4 day war no clashes were reported along the Armenian-Azerbaijan state borders, while recently Armenian Defence Ministry claimed that Azerbaijani Armed Forces fired 13 times in the direction of the Armenian-Azerbaijani State border. Moreover NK might be deploying at firing positions anti-aircraft missile systems, multiple launch rocket systems, missile systems, including long-range.

As the parties clearly rule out the option to resort to a judicial settlement of their controversy, the only two options are diplomacy or war. But within such a context, can parties approach the negotiation in good faith? Unlikely, to put it mildly. No one is ready to compromise, the level of mutual trust is at its bottom (or possibly underneath), concessions are unthinkable, and they both assume the right to be on their side.

Armenia claims that the right to self determination of NK should be the principle to be considered. And there are precedents encouraging this assumption: Kosovo, Abkhazia, South Ossetia (which by the way Armenia itself does not recognize), South Sudan...: self determination and breakaway regions... or the Soviet Union, Yugoslavia: self determination and state secession/dismembratio. Is there an ongoing new hierarchization of rights? is an emerging customary law placing the right to self determination above the pillar of state territorial integrity?

According to the UN Charter the right to self determination (art. 1, §2) is thus worded: "[...] To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace",
while territorial integrity (art. 1, §4) "[...]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, or in any other manner inconsistent with the Purposes of the United Nations."

The point is that THERE IS indeed a superordinate principle in the entire UN system, and therefore in the whole legal international system that stems from it, and that cardinal principle is not the right to self determination nor the inviolability of state territorial integrity. It is the peaceful settlement of controversies. 

As a consequence: war is losing legitimation. Military gains which alter the political status quo of a territory (borders, sovereignty, demography) are usually not internationally recognized and considered illegitimate. And turn the territory affected in an international pariah, or a limbo of a frozen conflict, whatever the military results were on the ground. Ask Abkhazia and South Ossetia.
There are degrees of inconsistency in the implementation of this emerging factor in customary law, but definitely the trend is there. And it should discourage military adventures. Anybody listening? No matter how well you fight and how brilliantly you successfully win, if not tabled and agreed, whatever the outcome won't be a solution.

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