Interview with Javid Gadirov, PhD (SJD, CEU) Lecturer, Baku State University.
This week the International Court of Justice (ICJ), the UN's principal judicial body, has delivered its opinion on the matter of legality under the norms of international law of the Kosovo's unilateral declaration of independence. While it is an advisory opinion, meaning that it has no binding legal force, the interpretation of international legal rules by ICJ are very authoritative.
Q: Could you please comment on the Kosovo decision of the Hague Court?
A: ICJ has held that the declaration of independence adopted by Kosovo was not prohibited by the norms of international law. Contrary to various statements in the media, ICJ did not hold that Kosovo has a right to secession, neither that Kosovo achieved statehood, and not even that it had a right to make a declaration of independence.
Nevertheless ICJ did refer to cases in which even the declarations of independence would be prohibited by international law, that include declarations that are “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character” (these include according to majority of international lawyers such crimes as genocide, crimes against humanity, slavery etc).
The ICJ also declined to look at the issue of secession as a “remedial right”, suggested by some states. “Remedial secession” concept implies that the failure on behalf of the parent State to provide protection leads to emergence of the right to unilateral secession. In such cases as when for example violations such as crimes against humanity are perpetrated against a part of population, the right to self-determination would mean secession, according to some authoritative international lawyers. ICJ did not pronounce on this question, and instead chose to formulate the issue narrowly, namely whether the declaration of independence per se was illegal, answer to which we already know.
Thus while the decision clearly does not stand in the way of Kosovo's independence plans, it also marks out certain scenarios where declaring independence could be in violation of international law, thus distinguishing Kosovo among many secession movements, that are in fact mere pretexts for unlawful use of force and aggression, such as for example cases of South-Ossetia or Nagorno-Karabakh.
Q: Does this mean that principle of territorial integrity has no weight in international law any more?
A: Certainly not. There is nothing in the Kosovo Opinion that suggests this reading.
Mind however that principles of international law are not static and unchangeable, while their meaning and interpretation are subject to evolution and change. There are always exceptions to territorial integrity, and self-determination in contexts of colonial or military subjugation are vivid examples. Principle of self-determination paved the way of Azerbaijan's independence twice in the last century, and moreover is still a pressing issue for millions of Azerbaijani's.
Q: What could be the impact of this decision on unsettled conflicts in post-soviet space?
A: First of all there is no more such thing as a post-soviet space, but let me focus on the Karabakh conflict instead. The Kosovo opinion clearly states that declarations connected with the unlawful use of force and crimes against humanity could constitute exceptions to the legality of declaring independence. One needs to remember the Security Council resolutions condemning use of force against Azerbaijan, and also abhorrent crimes against humanity and war crimes committed in the course of Nagorno-Karabakh conflict in order to relate to the wisdom of this approach.
Q: What could be implications of this decision for Azerbaijan of this decision in the view of the unsettled Karabakh conflict?
A: As remarked above, the ICJ Decision does not provide criteria of statehood, neither whether there is a right to unilateral secession, even in remedial sense. In any case it is the priority concern for Azerbaijan to pursue international recognition of the illegality of use of force against Azerbaijan during the 90s conflict, and take reasonable steps to investigate crimes against humanity and war crimes committed in the course of the conflict, with a view to bring perpetrators and their superiors to individual account.
Q: Do you think that Armenia gradually achieves its purpose on legitimizing the occupation of Azerbaijani territories? And what do you think Azerbaijan could undertake as a preventive measure?
A: I do not think that legalization or legitimization of a crime can be achieved, gradually in particular. First of all one must not fail to recognize the formidable force with which the principle of self-determination has changed the world political map in the last century, and that in the coming decades it would challenge multinational and ethnic-based federations to accommodate and recognize claims of their minorities. On the other hand there is nothing in the Kosovo opinion or in the self-determination trend in general to suggest that use of force and crimes against humanity can be justified by a declaration of independence, in fact the decision says exactly the opposite.
Q: Some experts consider that this decision will put an end to hopes of peaceful solution of Karabakh conflict and will reinforce militaristic rhetoric. Do you share this opinion?
A: I am not an expert on the hopes and beliefs of population. But ICJ's Kosovo Opinion cannot be used as a basis for discouraging peaceful solution to the conflict. Any solution of Karabakh conflict depends on the will of the People of Azerbaijan, which also bears responsibility for it in various senses. In the best case this ICJ Opinion is a message to ongoing peace negotiations that use of force and crimes against humanity will not justified just because they are 'successful'.
Leyla Tagiyeva
News.Az
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