INTERVIEW OF POLITICAL EXPERT, INTERNATIONAL LAW SPECIALIST VARDAN POGHOSYAN
Ashot Safaryan
ArmInfo
2010-09-09 15:57:00
OSCE Minsk Group format is insufficient for Karabakh conflict
settlement
Interview of political expert, international law specialist Vardan
Poghosyan with ArmInfo news agency
Mr.Poghosyan, are there any mechanisms to combine the two basic
principles of international law – people’s right to self-determination
and territorial integrity, and how can this combination be projected
on the Karabakh conflict?
>From the viewpoint of international law, these two principles are jus
cogens principles i.e. imperative laws having supreme legal force. And
all the treaties that violate the jus cogens principles are doomed to
denunciation. Now a logical question arises – how can these principles
be combined and applied to the Karabakh conflict if there is a conflict
or at least a seeming contrast between these principles?
Hence, there must be mechanisms to liquidate this contrast. I’d like to
recall that the UN International Court of Justice made certain steps
to liquidate the problem when it declared that Kosovo independence
does not contradict the international law. But the Court took only
a small step and, unfortunately, failed to present the details of
the two principles’ ratio. The Court declared that the principle of
territorial integrity is related to the relations of countries and
cannot be applied to the subjects inside a country i.e.
if part of the population wants to become separated from the state,
there is no territorial integrity principle for it.
Unfortunately, the Court’s verdict does not fully reflect the
situation. In particular, the court could touch on the question in
what preconditions one can fulfill the right of part of the population
to separate itself from the state. It is insufficient to state only
that the principles of people’s right to self-determination and
territorial integrity should not contradict each other. In order to
find out in what conditions it is possible to fulfill the right to
self-determination, one should reveal the premises that can give a
right to a specific ethnos to separate itself from a state.
Baku’s statements that proclamation of Nagorno-Karabakh’s independence
contradicts international law norms are groundless. Azerbaijan lacks
any serious arguments based on the international law norms. Here a
question arises: what to do with the problems the Hague Court has
failed to give the key to? I mean the problem of premises providing
the opportunity of self-determination in the form of separation from
a state, in the given case – withdrawal of Nagorno-Karabakh from
Azerbaijan. In this respect, the scene is quite complete from the
viewpoint of international law. The declaration about the principles
of international law adopted by the UN General Assembly in 1970 says,
in particular, that the right of people for self-determination should
not be automatically watched as a principle, which loosens territorial
integrity of a state. This principle functions when a state, within
which the given nation exists, does not at all represent this nation.
That is to say, by its actions this state does not respect the right
for self-determination the way it is fixed in the declaration. For
this reason, it stops being the legal representative of the people,
which want to self-determine. Taking all this into account, the
process of Nagorno-Karabakh establishment as an independent state
fully meets international law norms.
The resolutions on the Karabakh conflict adopted by various
international structures do not take into consideration the factors
mentioned by you. How can such lack of interrelation be explained?
I ascribe this circumstance to the passivity of Armenian foreign
policy, which has held defensive positions from the very beginning.
The Armenian party’s negotiations for resolution of the conflict
have not been based on the existing legal documents. Nagorno-Karabakh
proclaimed independence from the Azerbaijani SSR and not from sovereign
Azerbaijan, which was in line with the Soviet legislation effective
in that period. The legal positions of Nagorno-Karabakh and Armenia
must be as follows: since the moment of the collapse of the Soviet
Union Nagorno-Karabakh has not been part of Azerbaijan.
Therefore, it is absurd speaking of territorial integrity of Azerbaijan
including the territory of Nagorno-Karabakh. It is quite hard to
correct the situation, but it does not at all mean that one should
do nothing.
How much probable is the cession of 5 regions around the NKR to
Azerbaijan? And is this right stipulated in the NKR Constitution?
According to the NKR Constitution, these territories are under
control of Karabakh but are no integral part of it. The cession of
territories should be considered only in the context of liquidation of
consequences of Azerbaijan’s aggression against the self-determined
people. The problem of territories can be settled only in case
of complete restoration of the NKR’s territorial integrity, since
Shahumyan region, as well as a number of villages of Martakert region
are still under occupation of Azerbaijan.
The Un International Court delivered the verdict on Kosovo after
70 countries had recognized its independence. Can we speak of any
political engagement of this instance?
Certainly, we can. One shouldn’t forget that the international law
appears as a result of agreements reached by the states, and this
circumstance already implies dependence on political processes.
Actually, Kosovo exists as an independent state, and it has already
been recognized by a great number of states. Unfortunately, the
situation is different in case of the NKR. I think both Armenia and
the NKR failed to exert enough efforts to gain international legal
recognition, because we ourselves didn’t completely realized the
strength of the legal arguments possessed by Nagorno-Karabakh when
proclaiming its independence.
Both Armenia and Nagorno-Karabakh should gain recognition of the NKR
at least by several states. It is not right to hope that peaceful
settlement of the conflict may be reached only within the frames
of the OSCE MG. Baku is trying all the time to take the discussion
of the conflict out of the frames of the OSCE MG format. For this
reason, the Armenian party should create serious counter-balance to
activeness of Azerbaijan in the Organization of the Islamic Conference,
as well as in the UN. Naturally, Armenia cannot do anything in the OIC,
but adequate measures should be taken in the UN and other structures.
Armenian diplomacy has to insist on the fact that the so called
“occupied territories” appeared as a result of Azerbaijani aggression
against Nagorno- Karabakh. In full accordance with the norms of
international law and the acting legislation of the Soviet time
Nagornyy Karabakh declared its independence, because of which it
underwent Baku’s aggression. The principles of inadmissibility of
aggression may be applied just in the relations between the NKR
and Azerbaijan.
May the NKR’s return to the negotiation table introduce any changes
in the situation?
I think it may, since it will thereby be acknowledged that
Nagorno-Karabakh is an international subject and the destiny of
this subject is being determined in course of the talks. Actually,
Armenian diplomacy made a rough mistake, having excluded Karabakh
from the negotiation process. Today modest attempts are being made to
make up for lost time; however, there are no tangible results yet. If
we do not consider the issue in the specified context, we willy-nilly
accept the mistaken thesis, according to which the conflict is between
Yerevan and Baku, not between Stepanakert and Baku.
From: A. Papazian