Vol. 3, No. 4 (February 15, 2010)
Territorial integrity and self-determination: From ‘either-or’ to ‘both and’
Azerbaijan Diplomatic Academy
The evolution of discussions about the Karabakh conflict between Armenia and Azerbaijan over the last 15 years provides some important lessons about the complex and evolving interrelationship of two principles of international law: the territorial integrity of states and the right of nations to self-determination.
In the early years of that conflict, both sides argued that the conflict in the South Caucasus required a decision as to which of these principles was the more important, with those who believed in the primacy of the territorial integrity of states generally dismissive of the right of nations to self-determination and those who believed in the right of nations to self-determination equally dismissive of the principle of the territorial integrity of states.
These polar positions, of course, reflected the specific features of the immediate post-Soviet period. On the one hand, Azerbaijan like the other former Soviet republics and like many powers around the world had a vested interest in arguing that the maintenance of territorial integrity of states against challenges based on claims by minorities for self-determination was absolutely critical for stability and development. And they did so even though, as the most thoughtful participants acknowledged, these states themselves had burst on the international scene on the basis of the principle of the right of nations to self-determination.
From the perspective of the governments of the new countries, the paramount question was this: how could the international community expect them to survive if it did not close the door to ethnically-based challenges to their borders or even existence?
And on the other, ethnic Armenians in Azerbaijan, like minorities in other post-Soviet states, had an obvious interest in arguing that self-determination as a principle was more important than territorial integrity – not least because they could see around them the results of massive claim of the rights of various peoples to self-determination against the assertion of the territorial integrity of the Soviet Union. And they took this position even though they too concluded that without effective state power, something they sought for themselves, there could be no hope for the nations on whose behalf they spoke.
Consequently, from the perspective of the minority nationalities, the overriding question was entirely different: how could the international community deny them the very right to self-determination that it had clearly recognized and supported in the case of the former Soviet republics?
Given these arguments, it is not surprising how the sides formed up around the world. The international community, a euphemism for the states of the world, came down hard on the side of territorial integrity either because its members faced or feared challenges to themselves or because they were fearful of the way in which any recognition of the right of nations to self-determination except post facto and in rare instances could trigger instability over large swaths of the world, particularly in what many chose to call “the newly independent states” of Eurasia. Indeed, as early as February 1992, the US government declared that it would support “no secession from secession” in the post-Soviet world, a statement that called into question what it had done in recognizing the former Soviet republics but that also indicated it would oppose any acts in the future in that region based on claims of national self-determination.
Meanwhile, many in the human rights and academic communities plumped for the other side in this debate, arguing that right of self-determination must take precedence over territorial integrity not so much because the world had just recognized the consequences of the former but much more because of the conviction that the rights of people, both individually and collectively, are more important than lines on the map. And consequently, unlike the governments which form the international community, they were deeply skeptical about any shift that appeared to downplay the rights of people at the expense of elevating the rights of the state.
The author of these lines, as some readers know, was among the latter camp. Having spent much of my career focusing on the way in which the lines Moscow drew in the South Caucasus were designed to create imbalances and hatreds, with none of the peoples involved getting the borders any of them believed were properly theirs and all of them seeing territories they were convinced belonged to them being handed over to the control of others. I was convinced that in the fluid situation that existed in the wake of the collapse of the Soviet Union, there would have to be border changes to achieve peace. Without them, I was certain, there would either be serious continuing ethnic problems with minorities mistreated or forced to move or the renewal of hostilities when the losing side felt it had a chance to win. In short, I believed that without changing the borders, the best that could be hoped for would be an unstable armistice rather than a genuine peace (Goble 1992).
In short, all concerned with this issue almost two decades ago conceived it as a classical case of “either/or” – either those involved must subordinate the right of nations to self-determination to the principle of the territorial integrity of states, with all the risks to human rights and democratic development that could entail, or subordinate the principle of the territorial integrity of states to the right of nations to self-determinate, even at the risk of the spread of instability within existing states or among them.
Over the last 15 years, however, three developments have pushed those who would like to see some resolution of the Karabakh conflict from this “either/or” paradigm to a “both and” one, toward the conviction that the only way forward will inevitably involve the respect of both principles – however naïve or even impossible that may sound to anyone who has been involved with or tracked this intractable conflict and however many steps those on both side of the “either/or” divide will have to make in order to achieve this outcome.
The first of these developments is that the situation in the post-Soviet world has become distinctly less fluid. The kinds of things that seemed possible or even natural in 1991 now seem farfetched and dangerous. If the international community welcomed or at least sanctioned the disintegration of the Soviet Union, its members are certain to oppose any diplomatically arranged change – even if once such a change happens through force, they are likely to find ways to live with a world of “partially recognized” states.
That shift has given aid and comfort to the governments of the post-Soviet states who regularly invoke the principle of the territorial integrity of states – even as it has led many in the human rights world to despair about the future of minorities now that it appears the ultimate sanction of such minorities against the powers that be under which they live appears to have been taken away from them by the same community many of whose members have benefited from that very right.
The second development, however, has had exactly the opposite effect. Far more than was the case before the end of the Cold War, European institutions in particular have dramatically expanded the number and kinds of monitoring that they do within countries to protect a wide range of rights. The Council of Europe, for example, has created a large number of special representatives, offices and missions. And the European Court of Human Rights has become a court of last resort for people in countries whose regimes mistreat their populations. Not surprisingly, minorities of various kinds view these institutions as key allies, even though they recognize that such agencies have little power to compel governments to behave. And equally unsurprisingly, governments view these groups as nuisances, accusing them of “double standards” or ignorance of local conditions, but often over time at least improving their treatment of their population in order to avoid continuing criticism.
As a result, these institutions are playing a key role in transforming the Westphalian world in which governments were more or less free to act as they liked within their borders into a post-modern one in which governments no longer have such complete freedom of action, unless they are prepared to be isolated internationally, a state which carries with it increasingly high costs. And that in turn reduces the significance of borders and their maintenance under the principle of the territorial integrity of states even as it opens the way for the manifestation of the right of nations to self-determination within existing borders.
But it is the third development, one within the South Caucasus region in particular, that is perhaps the most important in changing the discussion from an “either/or” to a “both and” paradigm. And it is this: both the proponents of the principle of the territorial integrity of states and the backers of the right of nations to self-determination have come to see that each of their positions requires the recognition of the validity of at least part of the argument of the other and that the promotion of one of these values to the complete exclusion of the other is not only counterproductive but potentially self-destructive.
That can be seen if one imagines a world in which either principle would be elevated to the point that the other could be entirely ignored. A commitment to the principle of the territorial integrity of states without an acknowledgement of the right of nations to self-determination would inevitably both undermine the possibility for the development of a participatory politics and an open-ended economic system and – and this is far more serious – raise questions about the basis of the state and its borders. If the state does not exist for its population, then what does it exist for? If people begin to ask that question insistently, their governments are going to face difficulties.
Conversely, if the principle of self-determination is elevated to the point where that of the territorial integrity of states is ignored, ever more groups will invoke it, even to the point of inventing themselves or reviving an identity long lost as ethnic entrepreneurs challenge the existence of that within the current borders. That in turn means that the principle will implode because it will end by calling into question or even destroying the only institutions capable of protecting the groups advancing such claims.
While the logic of these competing vectors has long been known, at least in the scholarly community, the implications of it have increasingly been taken into account by policy makers in the South Caucasus, sometimes on the basis of their own experiences and reflections and sometimes under pressure from others, self-interested or not. As a result, both sides in the Karabakh conflict have been moving, as for example Azerbaijan did at the December 1996 Lisbon summit as expressed in an annex to the final communiqué, toward a settlement of the conflict that will take both the principle of the territorial integrity of states and the right of nations to self-determination into account.
As the two sides approach at least a partial resolution of the conflict, each is having to confront the implications of moving from the rhetorically and politically powerful claims of a world of “either/or” to the far more difficult but ultimately more sustainable outcome of “both and.” Curiously, most discussions of the possible endgame of the Karabakh conflict have focused on what Azerbaijan will gain – restoration of control over its territory on the basis of the principle of the territorial integrity of states – and on what Armenia will lose – its insistence on the right of nations to self-determination. But as the discussions proceed, it is likely that all concerned will see that Azerbaijan will have to “pay” for its gains by making concessions to the principle of the right of nations to self-determination and Armenia will “recoup” some of its losses both by the concessions Baku is likely to make and by the benefits it will get from having borders recognized by the international community rather than being in dispute.
Exactly what formula it will employ is still unclear, but Azerbaijan is going to have to recognize the collective rights of the Armenian community within its borders if it is going to be able to maintain its position in the international community. That will require a fundamental revision of the understanding of what Azerbaijan is and who Azerbaijanis are, a revision that is going to be far more difficult than many in Baku now expect, albeit one that the historical tolerance of the Azerbaijani people may open the way forward if the horrors of the conflict can be overcome.
Meanwhile, Armenia, once it acknowledges the principle of territorial integrity of states in this dispute will to the surprise of many in Yerevan and elsewhere find that it will also see the right of national self-determination reaffirmed as well. That superficially counter-intuitive conclusion reflects the reality, not always recognized by Armenians, that an Armenian state which lives in peace with its neighbors will gain a far better chance to become a modern nation rather than an historical cause, thus able to achieve its self-determination rather than remaining hostage to history and the diaspora.
These reflections do not mean that a favorable outcome combining both principles is easily or immediately achievable, but they do mean that the analyses and policies of the 1990s, which were based on the notion that there is an “either/or” choice in this conflict, are at the very least out of step with the new conditions and that the “both and” approach provides the basis for a peace and not just an armistice.
Goble, Paul (1992) “Coping with the Nagorno-Karabakh Crisis”, Fletcher Forum of World Affairs, 16:2, Summer, pp. 19-26.