THE CENTRAL ROLE OF THE INDIVIDUAL
THE CENTRAL ROLE OF THE INDIVIDUAL, AND THE PRIORITY OF THE INDIVIDUAL’S RIGHTS AND FREEDOMS AS THE BASICS FOR THE PEACEFUL “TERRITORIAL DIVORCE” BETWEEN STATES
The central role of the ind freedoms aetween states
The conventional definition of “interstate conflict”, which comprises handling categories such as “state”, “national security”, “national interests”, etc. suffers from etatism. Often the essence of the conflict, the real cause of its eruption, the core of the process of its development and the requisite outcome which should be strived for, are neglected. All the conflicts on the post-soviet territory in one way or another possessing an inter-state characteristic due to their origin, which is only on the surface, had an international or ethnic resistance. This superficial approach emphasizing exceptionally, or almost exceptionally, the ethnic dimension of the origin of the conflict and stressing the exceptional will of the political elite of the conflicting states, does not suggest an adequate understanding of the conflict and even more so, does not offer an effective and mutually-beneficial (of course, relatively so) option for the conflict resolution. In other words, the state overshadows the individual with his/her rights and legitimate interests.
The mentioned conflicts on the post-soviet territory were in a nutshell gross violations of human rights and freedoms, the restriction of those rights that were large-scale and perfidious, and this fact was not obvious on the first stages of these conflicts or rather were not fully realized. People stopped feeling secure and as a result, their political-legal status was in conflict with their realistic expectations. Formally they were bound in political-legal relations with the state which failed not only to ensure their security and take responsibility for this guarantee, but were also the source of this state of “insecurity” and threats to personal security. The fact of contradiction between the political-legal status of an individual and the state of his/her security was most clearly presented in the political-legal practice of the former Azerbaijani SSR starting from the early stage of the Karabakh conflict up to the date when its last citizen was exiled because of his/her ethnicity. The Armenians of Karabakh did not start a conflict with Azerbaijani SSR in the sense that is being pushed in its traditional state dimension. In other words, on its initial stage the demands of the Armenian population of Karabakh were essentially strictly legal in their nature both formally (observance of all the existing constitutional-legislative norms, observance of legal procedures, etc.) and substantially (those were demands for observing, protecting and guaranteeing their rights infringed in not so remote past and still vigorously continuing). This was not a territorial conflict as such: the Armenians of NKAR were already a state-constituent nation in this artificially formed, and from the perspective of its territorial formation, illegitimate state - NKAR.
The issue of territories appeared much later, when the legitimate right of a state-forming nation on political-legal self-determinations was held under suspicion by the newly formed Azerbaijani Republic, to which neither newly declared NKR, nor the former NKAR had or could have any political or legal relations. The very territories, which Azerbaijani Republic refers to as “occupied” by Armenians, was highlighted on the map of the conflict with one fundamental, conceptual goal only, which was a key to conflict settlement - to become a means, an instrument, a material-natural and economic provision of recognition, practice, protection and guarantee of the rights and freedoms of the part of the population of the former Azerbaijani SSR, which has suffered from the conflict the most regardless their ethnicity. These people were in a steady political-legal relation with the Azerbaijani SSR and had no direct relation to the legitimate demands of the Armenians of Karabakh. The Armenians of Karabakh themselves never doubted the status of these people as citizens of Azerbaijani SSR, and the only reason for their exile from the territory of their legal-republican affiliation was the war initiated by Azerbaijan. Thus, both the former Azerbaijani SSR and the modern Azerbaijani Republic proceeded and continue to proceed from the premise that the conflict has merely ethno-political reasons and given all the signs, will proceed further constructing its suggestions for the conflict resolution on these positions.
For ethno-politically-centered states of the contemporary era the major issue is that of territories. They keep themselves aloof from the legal dimension of the conflict and the legal categories are being used only while mentioning about territories (“20% of territories and 1 million refugees”) or while dealing only with a chosen group of norms of international law, which are often interpreted unilaterally and restrictedly (e.g. the principle of territorial integrity). It is particularly bizarre when it happens with states that are members of UN, OSCE and Council of Europe where the issues of security and practice of human rights are indispensable, and where the ethnic interpretation of conflicts is considered an unacceptable principle, where the territorial interpretation of any conflict situation between states is regarded as a rudiment from the past, e.g. of the times of Cold War, and consequently, individual and collective human rights become a top one priority.
It is not doubted that in the process of settling a conflict the human, his/her rights and freedoms are the most crucial factors, as well as their protection, their safe functionality and development in all possible dimensions of this concept.
In the contemporary studies of international relations the recognition of primary significance of the safety and security of an individual in its comprehensive understanding is obvious. Theoretical research, applied studies, official documents of democratic countries as well as the norms of international rights in this sphere are all evidences of this. We will try to clarify the connection between science, official doctrine and “ideal situation” regarding international relations and international law in the field of security and protection of human rights. A. George and R. Keohane categorized all the national interests regarding security in the following three groups:
1. Physical survivor;
2. Freedom – the capacity of residents of a state to choose the form of government and establish a complex of individual rights, which are affirmed by law and protected by state;
3. Economic welfare, implying maximum increase of economic welfare .
Canadian researcher K. Holsti suggests a hierarchy of goals, clearly distinguishing among fundamental, intermediary, and perspective. Fundamental goals reflect those values that Holsti calls “core”. Those should be protected by all means and all the time. Those are safety, autonomy, independence of the political entity, i.e. state, its political, social, religious and cultural institutions and the welfare of its citizens .
“The doctrine of national security of the United States distinguishes among three levels of national interests: (a) vital national interests, including security of the territories of the US and its allies and safety of American citizens…” It is necessary to note that the Doctrine of National Security of the United States of America is quite a dynamic concept, comprised of perspectives on issues regarding the security of this country. Annually on the highest political ranks involving the President of the US a document called “National Security Strategy” is being adopted where the most important interests of the country and the most likely sources of threats and challenges are being identified . However, in its foundation it is permanent, regarding the hierarchy of values and interests. Here an individual, his/her rights and freedoms are always among the fundamental values.
Russian research in this field has gone through a process of formation and now has arrived to the same position of recognizing the fundamental values in democratic countries. For instance, in Panarin’s concept on general security the core is the above-mentioned multi-dimensionality of the security of a single individual, that has found its reflection in the following:
1. “Securing the physical safety, resisting factors that can threaten life and health of an individual;
2. Economic security, i.e. securing employment opportunities and sufficient remuneration for the work done, protection of savings and property;
3. Social security - a deserving status in the society and state and public institutions guaranteeing protection of the two above-mentioned aspects of security;
4. Ethnic-cultural security as an opportunity to maintain and freely develop ethnos and culture with which the individual identifies himself/herself;
5. Security of dignity - a qualitative denominator indicating that in a democratic society for a free individual the value of security is no less significant than the security itself. If for security one needs to pay with humiliation, denial of his/her principles and repression of individualism, then this concept turns into a purely biological specific category. ”
In 2000 the new edition of the “National Security Concept of Russian Federation” was issued, where the national security concept of the Russian Federation is referred to as “a system of views on ensuring the security of the individual, society and the state (the prioritization of the subjects of security are obvious - authors’ emphasis) from external and internal threats in all spheres of life in the Russian Federation.”
Article 19 of the Charter for European Security adopted in 1999 states, “We reaffirm that respect for human rights and fundamental freedoms, democracy and the rule of law is at the core of the OSCE’s comprehensive concept of security.”
Thus, there is a certain consensus regarding the issue of prioritizing the interests of an individual while discussing security issues on doctrinal, national and international levels. The status of the security of an individual is based on three factors: humanitarian (directly human, personal), social-economic and military-political. This glossary is in full conformity with the Charter of European Security of OSCE adopted in 1999. Article 9 of the Charter states, “We will build our relations in conformity with the concept of common and comprehensive security, guided by equal partnership, solidarity and transparency. The security of each participating State is inseparably linked to that of all others. We will address the human, economic, political, and military dimensions of security as an integral whole.”
It is true that the Charter does not mention about the fundamentals, but only about the dimensions of the individual security and through it the security and the state of protection of the society and state. It is necessary to have a foundation for this provision. This can and should be the institution of rights and freedoms of an individual and a citizen. In this context the reciprocity of these two legal subjects - an individual and a state, is obvious. Moreover, it is obvious that there is a certain rapprochement between the levels of recognizing their statuses as legal subjects, which is reflected in so-called system of corresponding rights and responsibilities. The individual has a right to recognize his/her legal personality regardless where he or she is (Article 6: Everyone has the right to recognition everywhere as a person before the law. Universal Declaration of Human Rights; Article 16: Everyone shall have the right to recognition everywhere as a person before the law. International Covenant on Civil and Political Rights), a right to recognize that the state is responsible for human rights and freedoms, a right to recognize that a concrete state should grant the individual with nationality, which provides him/her with a complex of rights and freedoms of an individual and a citizen. An individual also has a right to safe development within this state, where she/he together with other individuals are the carriers of the sovereignty and the only source of power of the given state, and the state, which is engaged in practice and realization of this rights in one way or another and has certain responsibilities towards this end. In contrast, the state also has a right to secure the observance of the laws and other normative-legal regulations by these individuals and thus the individuals also get certain responsibilities corresponding to these rights (for instance, Article 2 of the Convention relating to the Status of Stateless Persons states: “Every stateless person has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”)
Obviously the internal law of democratic countries tends to be homocentric. For already a considerable time the international law also reflects the same tendency, emphasizing more and more the significance of ensuring the interests and rights of an individual. Defining an individual as an object and not subject of law is already in the past. “Even in the not so remote past an individual was regarded as an object of international law. In one of the reports presented during the preparation process of the Hague Conference for the Codification of International Law in 1930 it was mentioned that individuals are not considered as subjects, but only objects of international law. ”
The contemporary understanding of law, which is formulated in a liberal-legal concept elaborated and suggested by academician V. S. Nersisyants, is anchored on a homocentric approach, which is reflected in the principle of formal equality. According to this concept, the mentioned principle is a whole comprising three implicative characteristics of law - universal measures of regulation, liberty, and justice. “This tri-unity of essential characteristics of rights (three components of the principle of formal equality) can be defined as three modules of a common substance. Like three mutually connected and implicative meanings of one substance, one of them simply cannot exist without the others. The universal equal measure typical of law is exactly the equal measure of liberty and justice, and those two are impossible without and beyond equality (universal equal measure). ”
Such an interpretation of law has human rights and freedoms in its core. All the three principles of formal equality of the liberal-legal concept, i.e. measures of regulation, liberty and justice, have their real reflections through which it becomes possible to practically realize and effectively develop human rights and freedoms. The measure of liberty is reflected in human rights. “Within the framework of formally securing the freedom an individual’ self-determination is realized, and the conditions for real use of social benefits in various spheres of political, economic and socio-cultural life are established. ” In internal law it is accepted to approach human rights from a complex perspective, when the separate categories of these rights as a whole acquire a systemic character. The complex of human rights and freedoms comprise personal, political and socio-economic rights and freedoms. It is worth to note that the basic approach to divide rights and freedoms into categories and at the same time to necessitate their unified, systemic perception underlies the International Bill on Human Rights (Universal Declaration of 1948 and International Convents in 1966).
Personal rights define the freedom of an individual in the sphere of her personal life, his/her legal protection from any kind of intervention of illegal character. These are right to life, personal immunity, right to respect, protection of dignity and honor and liberty of conscience.
Political rights belong only to the citizens of a state and can be realized only within the framework of that state. They reflect the opportunities of an individual to take part in the political life of the state (right to participate in the activities of political entities; right to elect and be elected; right to take part in national referenda, etc.) It is important that “the political rights are indispensable conditions (authors’ emphasis) for the realization of all the other rights of citizens, since they underlie the foundation of the democratic system and appear as means of control over power. ”
Ideally socio-economic rights should provide an individual with a sufficient level of living standards (right to employment, social security, freedom of entrepreneurship, right to private property, etc.)
If an analogy is drawn between the concepts “dimensions of security” and “human rights and freedoms” several implications become obvious. Security, if it is regarded as a state of protection of an individual in all its dimensions, can be reached only in case of approaching its perception and realization through recognition and practice, protection and guarantee of human rights and freedoms. The state carries the main responsibility for the provision of the mentioned components of human rights and for the creation of real conditions in the sphere of providing security to an individual. All these show the necessity of establishing confiding relations between an individual and state, especially in the case when there is a chance of establishing constant political-legal relations between them, i.e. citizenship, and even more so, if such a connection already exists. And what does confiding relation mean? The terminology used in international-legal cooperation of countries (measures for securing trust between states both in documentation and in activities of many international organizations, e.g. OSCE) can be applied to the internal communication between a state and an individual. The mentioned connection between the dimensions of security (in OSCE terminology humanitarian, socio-economic and military-political dimensions) and human rights and freedoms (correspondingly personal, socio-economic and political) reveals a seeming variance. If there is an obviously mirror reflection between the human (humanitarian) and socio-economic dimensions of security and personal, socio-economic rights and freedoms, a similar relations between military-political dimension of security and political rights of a citizen of a specific country are somewhat doubtful.
It was noted earlier that in the sphere of international cooperation between countries regarding military-political partnership a new term - measures for securing trust - is being largely used. Former enemies attempt to find common interests, overcome the existing mistrust between each other and undertake certain measures towards securing bilateral partnerships and developing further towards the negotiation of the potential conflict. However, in internal political practice, on the level of a state and individual, this is no less significant. The situation when there is mistrust between an individual and a state, certain distancing of the legal subjects from each other, is particularly acute in the national-legal practices of post-soviet republics. Such a situation is possible in two cases:
1. An individual and state are already connected with political-legal relations characterized as stable;
2. An individual and state are not yet connected with such relations, but there are certain prerequisites and conducive factors for the development of such relations.
It is necessary to focus on the second case, since it clearly refers to violations of rights of all those deported from the former Azerbaijani SSR, who are yet to be granted a concrete legal status.
If in the international arena the military-political dimension of security has a considerable significance for a state, in its internal policy the recognition, exercise, protection and guarantee of human rights should share an equal importance. Therefore, it is necessary that a state find certain ways to engage in a constructive dialog with an individual, and secure measures of trust between them. The unique importance of the necessity of adopting a comprehensive approach towards the resolution of any conflict becomes obvious as well, which takes into consideration all the aspects of the concept “security” and the complex of human rights and freedoms.
Political and economic disparity between the positions of the parties regarding the resolution of Karabakh conflict and different argumentation to support their legal claims are results of state-centric, conventional perception of international relations, as well as dogmatic interpretation of the principles and norms of international law, especially within the framework of international-legal institution of recognizing a state as a subject of international law, whereas in a much general context, it is the result of impaired subjective composition of the parties involved in the process of seeking common grounds . The political and economic interpretation of the conflict and the construction of geopolitical and geo-economic principles into its resolution are important. However, the experience of 11 years shows that those are not sufficient for the final settlement of the Karabakh conflict. Therefore, the only real alternative for the effective use of legal approach is the return to the sources of national and international laws, to the human rights and freedoms. It is exactly this legal approach, which focuses on the principle that is not being disputed between the parties (and actually, it cannot be disputed given the current state of the parties), i.e. recognition and protection of human rights, that is necessary for overcoming strictly geopolitical and geo-economic deadlock where the conflict has currently phased to. Legal approach is possible, and actually it is the only approach that can bring to one or another scenario of resolution. However, it is possible only if the parties do not feel “deprived” regarding one or another issue and at the same time, this is the only approach that will allow restoring the rights of the people that have suffered the most of the conflict regardless their ethnicity.
All this is impossible though if there is no real involvement of one of the equal and in many ways decision-making parties - NKR.