Kohen: All conflicts can be settled if there is a will

Tue 18 August 2015 13:18 GMT | 18:18 Local Time

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Interview with Marcelo Kohen, Professor of International Law at the Graduate Institute of International and Development Studies of Geneva, counsel of states from different parts of the world before the International Court of Justice and other international tribunals, also ICSID arbitrator, author of about 100 publications in the field of international law, in French, English and Spanish.

Mr. Kohen, what can be the implications of the Malvinas/Falkland Islands’ crisis for other territorial disputes?

The Anglo-Argentine Sovereignty Dispute is an example of a particular colonial situation in which the colonial power, after having expelled Argentina from the Malvinas/Falkland islands, refuses to negotiate.The UN has determined that the way to put an end to this colonial situation is through the settlement of the sovereignty dispute. The British current population of the islands (2800 inhabitants, even less than half of them being born in the islands) was established by the colonial power after the expulsion of Argentina from the territory and is not considered by the UN as a “people” entitled to self-determination.

Does every territorial dispute have its own nature and ways of settlement or the settlement principles are universal?

Each dispute has its own history and logic, but all of them are subject to the obligation to settle international disputes through peaceful means, i.e. negotiation, mediation, good offices, ICJ, etc

There are huge argues between super-powers and other nations on which of the two principles is more important than another one, I mean territorial integrity and self-determination of nations. And, anyway, could self-determination be justified if it happens after military occupation of territory, mass killings, ethnic cleanings?

Not any human community is holder of the right to self-determination. A national minority within a State is a “minority”, not a “people” entitled to self-determination. The territorial integrity of the State in which the national minority exists must be respect, as well as the minority rights of that community, which, as I said, does not include the right to decide the sovereignty over the territory. To invoke self-determination after a military occupation and/or ethnic cleansing of a territory is a mockery of the legal principle of self-determination, not its true application.  

We could see different approaches of international community to similar problems in Kosovo, Abkhazia, South Ossetia etc. Is it a good way for international relations when some countries declare independence of some regions, but this decision is not supported by other countries? Where the policy of dividing countries on a few parts could lead to? 

The international community is divided in relation to many conflicts and some States have adopted evident contradictory positions, disregarding international law. The solution to the problem of the co-existence of different human communities is not the division of States, but rather the creation of conditions to ensure both the territorial integrity and the rights of the different communities existing in the same State.

Armenian leadership says that Armenians and Azerbaijanis by their nature can’t coexist at the same region. Anyway, how to make people overcome mutual hate before the conflict sides after more than two decades of war and conflict? What do you think about Karabakh problem? Can any conflict's settlement in the world be a model for the Karabakh conflict? 

Peoples have coexisted in the same region for a long time. There is no reason why this cannot continue. As I said, the solution is not the separation in order to create mini-States with no real power. All conflicts can be settled if there is a will. The way China settled the question of Hong-Kong and Macau with the United Kingdom and Portugal is a good example: large autonomy within the sovereignty of China.

What do you think about Armenian claims that the only way of self-determination of Armenians living in Karabakh is independence of this internationally recognized region of Azerbaijan? In other words, is independence the only way to ensure self-determination?

The first question is whether the Armenian population of Karabakh is a separate people entitled to self-determination. As I said, not any human community is a “people” in the sense of international law, i.e. entitled to self-determination. Since the territory is part of Azerbaijan, the question must be settled within Azerbaijan’s sovereignty, for example by the establishment of a large autonomy, as it exists in other parts of the world.

F.H.

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