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U.S. Recognition of Kosovo Sets a Precedent for Artsakh

***Opinions expressed are those of the author(s). They do not purport to reflect the opinions or views of Hyetert.***

October 31, 2020

The case of Kosovo inadvertently laid out a framework for remedial secession that applies directly to the case of Artsakh and the expression of its right to self-determination in the face of the existential threat posed by Azerbaijan.

by Alex Galitsky

While addressing Armenian supporters at a campaign rally on Sunday, President Donald Trump invoked Kosovo in his pledge to resolve the ongoing humanitarian crisis in the South Caucasus. In doing so, Trump may have inadvertently acknowledged the solution to Azerbaijan’s decades of aggression against Armenia—the recognition of Artsakh’s independence.

Under international law, territorial integrity is generally considered inviolable except in certain circumstances—such as when a state violates the fundamental rights of a protected group. This principle—the right to remedial secession—has been enshrined in numerous documents of international law, but it wasn’t until Kosovo’s declaration of independence and subsequent recognition in 2008 that this theory was put into practice.

Despite the fact that self-determination exists as a fundamental right under international law, when the United States recognized Kosovo a statement by then-Secretary of State Condaleeza Rice argued that Kosovo “cannot be seen as a precedent for any other situation in the world today.”

But while Secretary Rice sought to appeal to the sui generis nature of Kosovo’s situation, she inadvertently laid out a framework for remedial secession that applies directly to the case of Artsakh and the expression of its right to self-determination in the face of the existential threat posed by Azerbaijan.

The statement identified four key factors in the decision to recognize Kosovo. First, in the “context of Yugoslavia’s breakup,” Kosovo—as a semi-autonomous province of the now non-existent Yugoslavian state—had a legitimate right to self-determine. Second, given the “history of ethnic cleansing and crimes against civilians in Kosovo,” Kosovars had a right to remedial secession. Third, by having “built its own democratic institutions separate from Belgrade’s control,” Kosovo had in effect earned its sovereignty. And finally, in light of the brutality of the 1990s conflict, “independence was the only viable option to promote stability in the region.”

Clearly, the argument against Kosovo being precedential is not a rejection of the legitimacy of the right to remedial secession. On the contrary, it affirms that very fundamental right by establishing a high evidentiary threshold for recognition. And on the basis of these criteria, a clear case can be made for Artsakh’s recognition under the Kosovo framework.

Artsakh, like Kosovo, was an autonomous province under the administrative control of a constituent republic—Soviet Azerbaijan—which, like the Socialist Republic Serbia, ceased to exist upon the dissolution of the parent state. Like Kosovo, Artsakh was subject to a brutal campaign of ethnic cleansing at the hands of Azerbaijan, as it sought to desperately maintain pre-dissolution borders. Artsakh has also earned its sovereignty, having achieved independence through a popular referendum and developed institutions of governance that have ensured the peaceful and democratic transition of power for three decades. And finally, in light of the threat of genocide posed by Azerbaijan, independence is the only remaining recourse that can safeguard the existence of Artsakh’s indigenous Armenian population.

But while the legal and moral imperative for self-determination is irrefutable, politicization and geopolitical posturing often comes in the way of its enforcement. There is no better example than Kosovo, the status of which is still subject to fierce politicization by global powers.

Russia, for example, has opposed Kosovo’s recognition on the grounds that it sets a “dangerous precedent”—fearing what its recognition might mean for its beleaguered federated republics. At the same time, Russia has used the Kosovo decision to try and legitimize its expansionist agenda in South Ossetia, Abkhazia, and Crimea.

Turkey, on the other hand, has recognized Kosovo. But not out of any particular affinity for international humanitarian law, but rather—like Russia—seeing it as an opportunity to re-establish a foothold in Europe and legitimize its illegal occupation of Cyprus. This has deterred both Greece and Cyprus from conferring recognition on Kosovo, fearing it may embolden Turkey.

Azerbaijan and Armenia also don’t recognize Kosovo—but for vastly different reasons.

Armenia welcomed Kosovo’s independence in 2008 on the grounds of its respect for the right to self-determination, and maintained a peacekeeping contingent in Kosovo under Greek command both prior to and following the declaration. But Armenia has not recognized Kosovo, citing its own non-recognition of Artsakh owing to Azerbaijan’s threat of war should recognition be conferred.

Azerbaijan on the other hand—in a rare split from Turkey—has explicitly referred to Kosovo’s independence as “illegal.” In a tacit admission of the legitimacy of Artsakh’s independence under the Kosovo framework, Azerbaijan’s dictator Ilham Aliyev said the decision risked “the emboldening of Armenian separatists in Nagorno-Karabakh.” This spurred Azerbaijan in the weeks following Kosovo’s declaration of independence to initiate what was then the most significant violation of the ceasefire since it came into effect in 1994.

The reaction this elicited from the United States was the first and only time—prior to President Trump’s remarks—an administration official had invoked Kosovo in relation to Artsakh’s plight for self-determination. While attempting to reaffirm the unique nature of the Kosovo case, State Department spokesperson Tom Casey noted that the key distinction between Artsakh and Kosovo was the fact that Kosovo had been subject to a period of UN administration that “anticipated a decision on its final status.”

It becomes clear that the only discrepancy between the two cases is geography. Yugoslavia was in Europe’s backyard, so there was a strong geopolitical impetus for engagement with the region. When the Yugoslavian wars broke out, it didn’t take long for NATO to become involved. And it was as a result of NATO’s intervention in Kosovo that the UN interim administration was established. This ushered in a status-determination process that was ultimately endorsed by both the United States and EU.

Artsakh, by comparison, was an afterthought. There was never a geopolitical impetus for international involvement, and the Armenians were left to defend themselves against Azerbaijan’s onslaught. When the tide of the war turned against Azerbaijan, Russia stepped in to broker a ceasefire. While a conflict resolution process was established through the Organization for Security and Cooperation in Europe (OSCE) in the form of the “Minsk Group,” the body was never given the mandate nor the authority Kosovo’s UN interim administration had. This, combined with the disengagement of Europe and the United States from the issue, meant there has never been a long-term vision for the determination of Artsakh’s status.

But today, the geopolitical landscape is very different to what it was during the war thirty years ago. Erdogan’s Turkey has stopped masquerading as a democracy and revealed itself to be an expansionist dictatorship seeking to re-establish the Ottoman Empire. Turkey sees Azerbaijan’s campaign for Artsakh as central to their shared pan-Turkic vision of regional order. And Russia, which is no longer reeling from the collapse of the Soviet Union and has increasingly sought to reassert its regional authority. Iran is another important factor—both Turkey and Russia see Iran as an valuable strategic partner in the region, and Iran has become increasingly aware of what the spillover of fighting could mean for its predominantly ethnically Azeri north. 

These factors combined pose a significant risk to regional stability, not to mention the interests of the United States and Europe when it comes to theemerging axis between Moscow, Tehran, and Ankara.

But above all of this is the threat of genocide looming over the Armenians of Artsakh. If the Kosovo case should set a precedent for anything, it’s that the world should not sit idly by while states perpetrate major crimes against humanity.

Azerbaijan has made it clear that its desired outcome is the eradication of the Armenian presence in Artsakh. For decades, its leaders have promoted anti-Armenian rhetoric, institutionalized anti-Armenian sentiment throughout all levels of Azerbaijani society, and engaged in the destruction of Armenian cultural monuments. During the course of this wave of aggression, Azerbaijan—with the assistance of Turkey—has deployed foreign jihadistmercenaries, used illegal cluster munitions against civilians, targeted schools, hospitals, and churches, and forcibly displaced over half of Artsakh’s population.

Azerbaijan, emboldened and backed by Turkey, has no interest in a diplomatic solution, having fundamentally disavowed the OSCE Minsk Process and increasingly escalated its hardline military rhetoric demanding the complete subjugation of Artsakh.

The prevention of mass atrocities is central to the right to self-determination and remedial secession. With Artsakh, the international community has the opportunity to reaffirm the fundamental principles of human rights enshrined in international law in the face of one of the most egregious modern threats to humanity. If those values and principles that once gave hope to the people of Kosovo are to mean anything, it is imperative that they be upheld for the people of Artsakh.

With so much at stake, it is clear that the recognition of Artsakh’s independence is the only viable option to secure the fundamental rights of the region’s Armenian population in the face of a genocidal threat.

Alex Galitsky is Communications Director of the Armenian National Committee of America—Western Region, the largest grassroots Armenian advocacy organization in the United States. His works have previously been featured in The Jerusalem Post, Haaretz, The Hill, The Los Angeles Times, and the Washington Examiner.

Image: Reuters


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