Libmonster ID: MD-612
Author(s) of the publication: Suren ZOLYAN

Suren ZOLYAN

Rector of Yerevan Bryussov State Linguistic University

CE Expert

Professor

Ph.D. (Philology)

As the Conference on Security and Cooperation in Europe was reformed in the early 1990s, it changed its name to OSCE (an "Organization" succeeding the "Conference"), strengthened its institutions and administration, expanded its functions in the field of elections monitoring and enforcement of democratic procedures - at the same time, it failed to address either politico-legal or military technical aspects of settlement of conflicts caused by the disintegration of such federal states as the Soviet Union and Yugoslavia. Accordingly, the problems related to these conflicts did not go away.

Theoretically, the Council of Europe Framework Convention for the Protection of National Minorities and the partly complementary European Charter of Local Self-Government and

стр. 47


the Charter on Minority and Regional Languages (though their ratification was a mandatory requirement for new members joining the Council of Europe, most of them, just like a range of "old members", have not done it until now) constitute sufficient instruments for preventing potential conflicts and settling existing ones. However, at the Council of Europe, which was in its time patterned after a club, legal decisions are limited to recommendations and compliance control, to monitoring mechanisms. Monitoring covers only the countries, which ratified the said conventions - whereas, as the joke goes at the Council of Europe, the willingness to ratify them is inversely proportional to availability of problems requiring solution.

It would therefore appear worthwhile to once again consider the principles and methods of addressing conflicts that were discussed at CSCE/OSCE at the time when this organization proclaimed as its priority task prevention and peaceful settlement of regional conflicts, regarded as the biggest threat to Europe's peaceful future.

* * *

In the early '90s, with the end of the Cold War and the appearance of the Helsinki document "The Challenges of Change" approved by the CSCE 1992 summit, one could expect unlimited prospects for realization of the so called "Helsinki principles", a triumph of concepts of democracy, cooperation, security and human rights. However, the changed situation brought the CSCE to the brink of a severe crisis, which this organization at first even managed to overlook. This crisis was caused by regional conflicts. In 1992, CSCE adopted resolutions on not only the former

стр. 48


Yugoslavia (all of its former republics, to which Kosovo, Vojvodina and Sandjak were soon added), but also Nagorno-Karabakh, Transnistria and South Ossetia, which failed to improve the actual situation.

When CSCE emerged in the 1970s, it fixed the existing status quo between the two blocks, NATO and Warsaw Treaty Organization. That was a moment of unstable equilibrium, when any change could result in radical - and, maybe, even irreversible effects. Europe was divided into distinct spheres of influence, where interference in each other's sphere of competence - at least, on the official level - was ruled out. The principle of inviolability of borders and non-interference in the affairs of the opposing block was the paramount principle of practical politics, which was supposed to prevent whatever changes in the geopolitical structure of post-war Europe. CSCE did not have even a theoretical reference to regional conflicts in its documents - these were regarded as an internal affair of the specific block.

The cumbersome and conservative decision-making procedures precisely matched the key objective - changes of whatever kind would always require great efforts and take a long time to accomplish. The real practices were aimed at preserving a balance - in the first place, in the arms control sphere. As for the so called "third basket" - human rights and humanitarian problems, the main activities in this field came from non-governmental organizations; on the official level, however, this issue was not so much an instrument of real politics as material for ideological discussions.

The principle of national self-determination was set as one of the fundamental principles of CSCE, though it had no

стр. 49


implementation mechanisms to support it. An extensive range of documents was also adopted in the field of human rights protection. All of this basically created an opportunity to elaborate efficient instruments for political settlement of conflicting situations in Europe during the '90s. This, however, did not happen.

Even though the self-determination principle appeared among the fundamental principles of CSCE, the concept allowing changes in the territorial and political structure of Europe required a radical revision of the very basis of this organization. Besides, the self-determination principle, in contrast to others, not only failed to get any development in the form of regulating and implementing politico-legal norms and mechanisms (such work was done in the framework of UNESCO) - to the contrary, the theoretical thought of leading CSCE experts was bent on totally eviscerating the very notion of self-determination, stripping it of all practical content and turning it into a mere declaration.

Firstly, it was said that the self-determination principle had no relation to Europe - allegedly, it was only intended for newly independent former colonies, and, as there are no colonies in Europe, there can be no talk of self-determination, either. Secondly, an incomprehensible time limit was set - it was asserted that self-determination in Europe had only been possible prior to 1948 (the partition of Germany). Thirdly, the self-determination principle was presented as secondary to the principle of respect for the existing borders and territorial integrity, which made it practically unrealizable. Fourthly, it was proclaimed that self-determination may only be realized with the consent of the entire state, rather than the seceding part. Finally, a concept of "internal

стр. 50


self-determination" was introduced with a view to finding a legal justification for the chimerical self-determination that would not involve any changes of borders.

As a result, the CSCE principle, explicitly asserting the right of all nations to independently and freely determine their political, economic, social and cultural status without time restrictions, was now interpreted not as an opportunity for every nation to set up an independent statehood, but only as an opportunity to independently determine certain specifics of the political system in the territory, which is supposed to stay within the former state. Self-determination was in this way reduced to a form of local self-government or autonomy.

What is more, a scholastic distinction between "people" ("nation") and "national minority" was introduced and formalized. The nation being considered a subject of self-determination, it appears to be sufficient to "rename" a nation into a national minority to divest it of this subject status. As the people seeking self-determination constitutes, as a rule, a minority in a state dominated by another people, this arithmetical-terminological operation divested it of the right to be a subject of self-determination, so that all it could expect to achieve, at best, was the so called "cultural autonomy" (i.e. the opportunity to have, at its own expense, its own schools, newspapers, practice its religion).

It can be seen that CSCE experts prepared in advance rather strong theoretical bastions that were intended to preclude the very possibility of emergence of new states and territorial changes. So when new states did emerge in Europe of the '90s, this came about on the basis of strictly political, rather than legal decisions.

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In its own time, in 1918 - 1920, the League of Nations abstained from recognizing newly established states until they had all territorial conflicts settled among them. CSCE took a different decision - it decided to regard internal administrative boundaries as state borders and fix the borders existing between federation subjects, ignoring historical and ethnic factors, as well as the will of the population. This is what happened even in the case of Bosnia and Herzegovina, though it was evident that the status quo that existed under absolutely different conditions would most likely result in bloody clashes if it were fixed in a new situation.

In practice, the recognition or non-recognition of newly established states was governed in CSCE by not so much legal principles as political trends.

* * *

Normal logic requires that all parties to the conflict should have an opportunity to settle their differences at the negotiating table rather than on the battlefield. However, two problems immediately emerged here. Firstly, CSCE only recognized the status of an internationally recognized state, so that those who did not possess this status could not be admitted to official CSCE spheres even as observers. Secondly, CSCE discussions were based on the consensus rule, which made it practically impossible to adopt a decision whenever there were opposing viewpoints.

CSCE's reference to regional conflicts as "inter-ethnic" helped it to sort of rise above them in the capacity of an arbiter. In reality, however, the regional conflict is not an inter-ethnic clash -it is a conflict between the state and a people seeking statehood.

стр. 52


Nagorno-Karabakh became the next subject for discussion at CSCE after Yugoslavia, both chronologically and in importance. This problem seemed to be much simpler than the one of Yugoslavia, and its successful settlement was to restore the sinking prestige of CSCE and prove its efficiency - this time, in the ex-Soviet space. However, the NKR self-defense forces' liberation of the Lachin corridor, on^one hand, and, on the other hand, Elchibey's coming to power in Azerbaijan, -with reliance on an exclusively military solution of the problem, refuted the preliminary calculations of CSCE analysts.

In September 1992, CSCE, finding that the Karabakh problem was not so simple as it had seemed, bypassed Transnistria and addressed the Abkhaz and Ossetian problems, in which the other party to the conflict was not represented and had no ally (Armenia acting in this capacity in the case of Karabakh), as well as conflicts in which none of the parties were officially represented (as in the case of Kosovo, where the new Yugoslavia had been expelled from CSCE, and Kosovo was not a state).

In this situation, intermediaries were forced to play a much more active role, which in a number of cases nearly made them a party to the conflict. In excluding one or another party from the political process, CSCE itself appeared to be out of bounds.

* * *

When CSCE was not forced by a political situation to recognize the accomplished self-determination, CSCE theoreticians usually proposed a complex of principles for settlement of regional conflicts, which included respect for territorial integrity and the rights of national minorities. This approach seemed to be outwardly

стр. 53


respectable, yet this was but an illusion, because, with this approach, one side got "everything" (or almost "everything"), while the other, "nothing" (or next to "nothing"). Of course, in mathematics, substitution of a "zero" symbol for a full-value one is considered an adequate action; in real life, however, exchanging one thousand to zero rubles constitutes, as a rule, fraud, if not robbery.

I am convinced that not a single of its individual elements may be applicable to settlement of regional conflicts, to say nothing of the entire complex.

Territorial integrity means a complete sovereignty of the state over its entire territory. This is one of the key principles of international law, governing relations among states - it is one of the fundamentals of the existing world order. To subject it to revision or even to cast any doubt on it would mean shattering the very foundations and throwing the world into turmoil. This can hardly be disputed.

Another thing is that one should not consider this principle an absolute one. Modern international law specifies that human rights do not constitute an internal affair of the state, thus legitimizing international interference in the event of their violation. Besides, every international agreement represents a voluntary restriction of state sovereignty and, in this sense, may result in weakening its territorial integrity (for instance, the trans-border cooperation agreement adopted in its time by the Council of Europe).

Application of the territorial integrity principle to newly established states constitutes an absolutely special case. This principle, in the first place, implies existence of internationally recognized borders. Without this foundation, the principle itself is inapplicable.

стр. 54


There once existed a norm in the practice of international relations, which made states, as a rule, abstain from formal recognition of a new state if it had territorial problems, because this would actually involve the recognizing state in an unsettled conflict.

This is why the position of international organizations regarding recognition of new states, former republics of the USSR and Yugoslavia, seemed rather strange. Internal administrative boundaries were suddenly regarded as internationally recognized borders, with the principle of territorial integrity being extended to the newly emerged states. This is not the place to refer to the arbitrary nature of many of these borders, yet it should be noted that this approach in itself led to conflicts. Recognition of internal boundaries was not extended to boundaries of autonomies (even though autonomous republics had constitutions of their own). In recognizing the USSR internal legislation in what concerned the borders of Union republics, international organizations failed to extend this recognition to legislation regarding secession of Union republics, whereas, under the latter, peoples of autonomies and compactly settled ethnic groups got the right to an "independent resolution of... the issue of their state and legal status" if a republic seceded from the USSR.

The arbitrary nature of such approaches on the part of CSCE cannot be explained either logically or legally; they were based exclusively on the desire to find the simplest, as it seemed, solution. As a result, it is residents of the conflict areas who have to pay for this seeming simplicity for already a decade and a half.

The principle of self-determination should come as a necessary adjustment for the principle of territorial integrity. In CSCE

стр. 55


documents, its realization was regarded as dependent on the consent of the central government (or the entire population of the state), which created a counterbalance to the principle of self-determination. However, there was no counterbalance specified for the principle of territorial integrity. There was no actual balance between these two principles; one of the parties to the conflict always found itself in an inherently unequal politico-legal situation.

It seems logical to amplify the established approach to self-determination with a provision that the right of a newly-established state to retain a territory populated by a different ethnic group should depend on consent of the population of this territory. This specification would create a real balance between both the two above-mentioned principles, and the parties to the conflict, providing the basis for a peaceful settlement of conflicts and stimulating the search for mutually acceptable options of a federalist type.

As for the principle of protection of minority rights, this is one of indisputable achievements of modern international law, yet it was elaborated to satisfy different requirements in different situations.

What is meant by "internationally recognized human rights"? There is a rather narrow range of rights that are classified as these. Lawyers of the Center on Human Rights and the Rights of Peoples at the University of Padua note in this regard, "international law does not recognize the rights of minorities as a collective subject, but only a range of special rights of individuals belonging to minorities. The formally recognized rights of individuals belonging to minorities represent cultural rights related to religious worship practices and the use of language; these contain no reference to

стр. 56


territorial autonomy. At the same time, it is often overlooked that a number of other recognized human rights are violated in the case of minorities".

Let me quote international norms related to minority rights (they, by the way, are not that numerous). The key provision is Article 27 of the 1966 International Covenant of Civil and Human Rights which says, "In states where there are ethnic, religious or language minorities, persons who belong to such minorities must not be deprived of the right, together with the other members of their group, to have their own cultural life, to confess their own religion or to use their own language". This is all. It should be noted, however, that Articles 1, 2, 3 of the same Covenant referred unambiguously and without any reservation to the right of peoples for self-determination and the obligations of all states to respect this right. Everything is natural here - the Covenant, after affirming the rights of peoples in its initial Articles, specifies in one of the following Articles one of the concepts included in the complex of human rights, namely that, among other rights, the man has the right to preserve his cultural, language and religious identity.

One should also note that the Covenant does not have any reference to the term "national minority", either. Here, as in other UN documents, there is only talk of ethnic, religious and language minorities, whereas the term "national minority" was introduced into usage by CSCE.

Ambiguity of the national minority concept makes it possible to terminologically ignore the principle of self-determination - as the people seeking self-determination does not, as a rule, constitute a majority in the state it seeks to secede from, the substitution of terms ("national minority" being substituted for "people" or

стр. 57


"nation") makes it possible to deny it the right for self-determination, offering it to settle for minority rights.

* * *

The attempts to present the complex of "territorial integrity plus minority rights" as a package that must satisfy both sides do not look substantiated enough. Even the most curtailed kind of autonomy is something bigger than the "internationally recognized human rights".

Nations, in contrast to minorities, represent collective international personalities, which have their right to self-determination ensured by major international acts. This is a qualitatively different right, which belongs to the people as such, rather than to "persons" making up this ethnic group. At the same time, international law does not oppose human rights to the rights of peoples - instead, as it is specified in the UN Declaration on the Right to Development (Art. 1, para 2), "the human right to development also implies the full realization of the right of peoples to self-determination". It therefore appears that the CSCE, assuming in the early '90s a terminology that was different from the one in UN documents (replacing the terms "peoples", "human rights", "ethnic, religious and language minorities" with a leveling term "national minorities"), took a step towards disavowal of the principle of self-determination.

The concept of minorities, being separated from the entire complex of human rights, does not agree with the notion of civil society - instead, it even runs counter to it. The society is no longer

стр. 58


regarded as an integrity of equal citizens but is divided into two unequal parts, "majority" and "minority".

The purely quantitative concepts of majority and minority are to a great extent relative notions, derived from a territory within certain boundaries. Depending on whether we narrow or extend the boundaries, any people at all may be a majority or a minority. In doing this, one does not at all take into account the historical settlement areas, forming a harmonic unity of land, culture, and people.

Differentiation of minority and human rights results in an unnatural situation when the international community shows a different reaction to facts of individual and mass violations of human rights. It is a recognized norm of international law that violations of human rights do not constitute an internal affair of the state. Political persecution immediately evokes international condemnation and sanctions. At the same time, mass violations of human rights of people of a different nationality, including such flagrant violations as tortures and murders, evoke a much more feeble reaction, being interpreted as "inter-ethnic conflicts". The international law seeks to protect victims of arbitrary treatment when this arbitrariness has to do with personal choice and personal responsibility, as in the case of political convictions. Yet when it comes to persecution of people of another nationality, when the rights of an individual are infringed upon regardless of his or her personal qualities, this situation is for whatever reason viewed as imprescriptible law. This unnatural situation is yet another argument against political and legal differentiation of minority rights and, simultaneously, an argument in favor of application of a global and universal complex of human rights and freedoms.

стр. 59


* * *

Modern international law recognizes human rights and the rights of peoples. Provisions to this effect are included in the UN Charter, the Universal Declaration of Human Rights, the two international Covenants of 1966, on civil and political rights, and on economic, social and cultural rights. These legal acts, along with a range of European, Inter-American and African conventions, Conventions on prevention of discrimination, against tortures, on children's rights, constitute the sources of new international law.

The key principles of international law include the right to life, equality of people and nations, the principles of peace, solidarity, social justice, and democracy. The fundamental principle of human rights enforcement is interrelationship and indivisibility of the entire complex of rights (civil, political, cultural, social, individual, collective rights) for both individuals and peoples, as specified in a number of UN General Assembly resolutions and conventions.

International legal regulations on human rights are reinforced by the principle of peaceful settlement of conflicts, which prohibits the use of force (Article 2, UN Charter). The same regulations imply the principle of supranational (supra-state) authority as essential for preparation and efficient application of the relevant mechanisms of enforcement by international action.

It is the people, as distinct from the state, that is the subject of self-determination. Based on the multi-factor definition of the people, provided in a UNESCO report, one can single out two key elements that distinguish the people, in particular, from the type of human community, to which UN documents refer as "indigenous population". These are availability of a common cultural heritage (patrimony) and availability of a political program, whose

стр. 60


realization includes accomplishment of an extensive territorial autonomy.

The right to self-determination is of dual nature, both external and internal. Internal self-determination means the right of the people to freely, i.e. democratically and without outside interference, determine its political and economic regime within the state. External self-determination is the right of the people to freely, i.e. democratically and without outside or internal interference of the state whose element it constitutes, determine the form of its political independence in the system of international relations.

The call for self-determination, especially external one, is also a cause for an armed conflict. The international system, except decolonization cases, is not yet prepared for peaceful settlement of self-determination processes. International law actually recognizes the right to self-determination, yet has no duly elaborated, adequate system of enforcement, analogous to what is provided with respect to individual human rights.

Another problem is that in many instances it is hard to draw a distinction between a minority and people. This is, however, a key issue, because, if a minority is a people, it should automatically acquire the right to self-determination as a collective subject. This problem is further exacerbated by the fact that the so-called minority in one state may identify itself with a majority people in another one. In these cases, the minority, besides calling for protection from discrimination, also calls, in a more or less explicit form, for a territorial autonomy or even self-determination.

The biggest problems arise both in this case and when there are several minorities inhabiting the same territory. In both instances,

стр. 61


it must be necessary to recognize and protect the rights of minorities as collective subjects, and implement the protective measures specified in the Document of the Copenhagen Meeting of the CSCE Conference on the Human Dimension (paras 31 and 32), which extend to minorities the entire complex of rights and basic human freedoms with no discrimination of any sort. A number of important recommendations was also presented in a report from CSCE experts on minorities (Geneva, 1991).

* * *

On the whole, our brief analysis demonstrates that, at present, neither the mechanisms nor legal norms used in international organizations' treatment of so-called regional conflicts correspond to current realities, requiring serious modifications and additions.

RA


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