Time and time again, all sides have stated that Kosovo was a one-time thing and not a formal legal precedent. Invoking it in the case of Nagorno-Karabakh demonstrates an unwillingness to recognize this reality.
’s stance on separatism is largely an issue of framing, regardless of how many times the Western officials have stated otherwise. So, they believe that they can succeed in lobbying their case in the West if only they can construct an attractive enough narrative that will appeal to the Western audience. During the Catalan Referendum of independence in 2017, for example, the Catalonian government’s strategy was to compel the European community to intervene in Spain by trying to convince them that, just like in Kosovo, there was no other viable solution except to secede in the face of the “authoritarian nature” of the Spanish government.
The Armenian advocacy groups in the West love to argue that based on the Kosovo case, the United States should urgently recognize Nagorno-Karabakh’s independence. And this is despite the fact that at the time the U.S. State Department explicitly warned that Kosovo was not a precedent and should not be seen as a precedent for any other place out there in the world and that it “certainly isn’t a precedent for Nagorno-Karabakh.” Armenian prime minister Nikol Pashinyan himself has repeatedly argued in recent months that the international community should recognize Nagorno-Karabakh as an independent state based on the principle of remedial secession. The problem is not just that the doctrine of remedial secession—which claims that secession can be accepted as the last resort for ending oppression—is a myth, does not have a strong theoretical foundation in international law, and overall has no relevance whatsoever to the “frozen conflicts” in the post-Soviet region. It also presents a false dilemma of having to choose between a well-integrated society and external self-determination while completely ignoring a much more effective third approach to the conflict resolution—an internal self-determination, which not only allows for both intergroup cooperation and sufficient autonomy to co-exist, but also is the only viable way to ensure sustained peace in the region.
Moreover, separatists often seek to gather international sympathy for their cause by attempting to present a moral case for separatism. The main problem with ethnically based right to secede however is that it is very hard sometimes to separate secessionist logic from the mentality that advocates for ethnonational purity and ethnic cleansing. By denying a chance for a more pluralistic and inclusive notion of the nation to exist, the secessionist worldview can be very regressive by its nature, and as such epitomize the very ills of ethnic nationalism that the postwar liberal order has sought to do away with. Upholding the principle of territorial integrity also makes good sense, given that there are already too many failed states in the world that undermine the stability of their surrounding regions and increase the possibility of wars and human suffering.
The Armenian government also likes to argue that Nagorno-Karabakh achieved independence “through a popular democratic referendum.” In practice, such a referendum is nothing more than an opinion poll. Under international law, a unilateral declaration of independence based on a referendum is no more legitimate than a unilateral secession without a popular vote. Following Kosovo’s independence bid in 2008, Belgrade made a strategic mistake by asking the International Court of Justice (ICJ) to rule on the legality of Kosovo’s unilateral declaration of independence, rather than asking the ICJ to rule on the legality of Kosovo seceding from Serbia. If the ICJ decided that the act of secession had violated international law, major European powers would have found themselves in an extremely awkward position of having to defend an act that had been unequivocally declared illegal under international law. Alternatively, had the ICJ ruled that Kosovo’s secession had not violated international law, it would have opened the floodgates for numerous other acts of secession. In the end, Serbia’s error allowed the Court to avoid addressing the key issue of secession—whether there is a right to secede—and instead take the narrowest approach possible by stating that, in general, there is no prohibition in international law against declaration of independence as a mere statement, unless it is explicitly banned by the Security Council. In essence, a declaration of independence is a free speech issue. Like in Crimea, just because someone can say that they are independent does not make it a legally-binding reality.
However, it goes further than this. Accepting the claim to external self-determination predominantly advanced by the ethnic Armenian community of Nagorno-Karabakh, which cannot alone represent the Nagorno-Karabakh population as a whole, risks legitimizing the ethnic cleansing of the Azerbaijani population of Nagorno-Karabakh. The atrocities against Azerbaijanis are still denied by the Armenian side because it does not align with the victimization narrative that has been carefully constructed over the years to legitimize violence against Azerbaijanis as resistance. Just like the Armenians, the ethnically cleansed Azerbaijani community of Nagorno-Karabakh and, in fact, all citizens of Azerbaijan have a right of self-determination, as well, which incorporates, among other things, the right to vote on the future of their country and not to have their country torn apart.
The fact of the matter is that the ceasefire of 1994 left Azerbaijani territories occupied by Armenia. Despite Armenia claiming otherwise, the fact of occupation has been confirmed numerous times by various impartial international bodies. In 2015, the European Court of Human Rights reaffirmed that Armenia’s military and political support to Nagorno-Karabakh amounts to “effective control” of the region. The Court pointed out the obvious fact, still vehemently rejected by Armenia, that “it is hardly conceivable that Nagorno-Karabakh—an entity with a population of less than 150,000 ethnic Armenians—was able, without the substantial military support of Armenia, to set up a defense force in early 1992 that, against the country of Azerbaijan with approximately seven million people, not only established control of the former NKAO but also, before the end of 1993, conquered the whole or major parts of seven surrounding Azerbaijani districts.” The concept of effective control lies at the heart of the notion of occupation. It is a conditio sine qua non of belligerent occupation. /nationalinterest
