Balkan Time | Question 3 – The right to self-determination: the case of Kosovo and Karabakh

Karabakh’s claim to autonomy are the conditions for its right to self-determination. Exposure to systematic violations of human rights, the “people” element, the consent of all persons living in the mother country, and the consent of the mother country.

Mammad Ismailov wrote his assessment of the validity of Karabakh taking Kosovo’s independence as an example in its separatist agenda, in the context of international law, in 3 questions for AA analysis.

1 • Is it realistic for Karabakh to take Kosovo’s independence process as an example?

Kosovo unilaterally declared its independence from Serbia on February 17, 2008. Kosovo’s independence was supported by the majority of the international community. This caused separatist forces in different geographic areas to legitimize their separatist actions by emphasizing the example of Kosovo. For example, after the annexation of Crimea by Russia in 2014, Russian President Vladimir Putin; “The Kosovo issue, which our Western colleagues created with their own hands in a very similar situation, is also a suitable precedent for Crimea.” The statements highlight the danger of potential separatist movements.

When the International Court of Justice announced its advisory opinion on Kosovo’s unilateral independence on July 22, 2010, the government of Armenia and the Karabakh Armenians said, “The Court has decided that Kosovo’s independence is legitimate. The Court’s Kosovo decision can set a precedent for Karabakh as well.” made remarks. The separatists also supported the annexation of Crimea, with the thesis that this was “another manifestation of the realization of the right of peoples to self-determination”. Recently, Armenian Prime Minister Nikol Pashinyan called on the international community to recognize Karabakh. However, it is seen that there is no similarity between Karabakh and Kosovo in terms of the rules regarding the right to self-determination.

2 • What is the right to self-determination and what are its conditions?

The right to self-determination can be expressed as the right of the human element of the state to choose its government or the right of the people to choose the form of government in which they live or will live under their will. Although this right is accepted as one of the fundamental principles of international law, there are differing opinions about its legal validity.

The first applications of the right to self-determination emerged during the First World War. In this period, the peoples living under the colony gained their independence by reference to this right. Therefore, the right to self-determination took its place in international law as a right granted to peoples who were subjected to genocide, racism and migration at that time. Today, since colonial administrations do not exist, there is no legitimate basis for implementing this right.

The right to self-determination is regulated in Article 1, Paragraph 2 and Article 55 of the UN Charter. Both systems emphasize the development of peaceful relations and the establishment of world peace in order to consolidate this right. In addition, the right to self-determination should not conflict with the principle of “respect for territorial integrity”, which is one of the most important principles of international law. In this context, the independence movements through the use of force contradict the principle of “respecting territorial integrity” and violate the prohibition of the use of force.

the committee that drafted the United Nations Charter; On what does not mean the right to self-determination; He stated that as long as there are no gross violations of human rights against a group, establishing a new state by declaring its independence or merging with a foreign country does not fall within this scope. According to the conclusion reached by the International Commission of Jurists (ICC) in the Åland Islands case, declaring the will of a particular group living in a particular area of ​​the country within the scope of the right to self-determination is not sufficient regarding its property. All residents of the country must agree to secession, and the consent of the “parent” country is also required. For example, the accession to the UN of Estonia, Latvia and Lithuania, which seceded from the USSR, took place only after they were recognized by the USSR (USSR).

3 • What are the differences between Kosovo and Karabakh?

Kosovo’s status as an “autonomous region” was defined in the 1946 constitution of the former Yugoslavia, which was later elevated to the same level as the other six constituent republics. However, although Article 72 of the Constitution of the USSR of 1977 regulated the right of each constituent republic to leave the Soviet Union freely, there was no provision for the Autonomous Regions. This constitution did not include the right of secession for Karabakh, and this region did not have equal rights with the former republics of the Soviet Union. In this regard, although the constitution of the former Yugoslavia provided for the right of secession for Kosovo, this right was not included in the constitution of the USSR because Karabakh was an autonomous region under Azerbaijan.

For the right to self-determination to happen, the mother country must commit a systematic violation of human rights against a particular group. Another requirement is that third countries do not support the exercise of this right. The reason Kosovo became independent was the use of violence against Kosovo Albanians by Serbia. However, in Karabakh, which is the territory of Azerbaijan, the Armenian armed forces, with the help of the Armenian state, are carrying out acts of violence amounting to ethnic cleansing against the Azerbaijanis living in the region. In this regard, the intense intervention of Armenia in the Karabakh issue prevents Kosovo from setting any precedent in the disputed region.

In addition, Armenians push Azerbaijanis, in Karabakh and surrounding areas, further east. Therefore, the Karabakh independence movement is not a pure reflection of the people’s demand for autonomy. The subject of the right to self-determination is “the people”. The concept of “people” includes everyone who lives within the borders of the state’s territory. Therefore, the desire of a particular ethnic group to secede does not satisfy the “people’s” element of the right to self-determination.

It is accepted without objection that Karabakh falls under the sovereignty of the Republic of Azerbaijan, both within the framework of the Alma-Ata Declaration and within the scope of examining the membership of Azerbaijan and Armenia in the United Nations. All four resolutions adopted by the UN Security Council in 1993 adopted the same approach, affirming that the Karabakh conflict should be resolved in accordance with the principles of the territorial integrity of Azerbaijan and the inviolability of its borders. On the other hand, the Chiragov decision of the European Court of Human Rights reveals that the right to self-determination cannot constitute a realistic solution for Karabakh, which is subject to the military, political and economic influence of Armenia.

Thus, the Kosovo issue must remain unique. The demand for autonomy put forward by a group of Karabakh Armenians is the terms of the right to self-determination. Exposure to systematic violations of human rights, the “people” element, the consent of all people living in the mother country, the consent of the mother country does not meet the standards and these demands are a threat to the territorial integrity of Azerbaijan.

[Mehmed Ismayılov, Ankara Sosyal Bilimler Üniversitesi, uluslararası hukuk alanında doktora çalışmalarına devam etmektedir.]

* The opinions expressed in the articles belong to the author and may not reflect the editorial policy of Anadolu Agency.

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