US recognition of Kosovo sets a precedent for Artsakh - The National Interest

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.