Introduction
Nagorno-Karabakh is located in the Caucasus region and is disputed by two former Soviet Republics, Armenia and Azerbaijan. The territory, whose population is majority Armenian, is considered to be a part of Azerbaijan and under the occupation and control of Armenia. While the conflict has been going on for decades, heavy fighting most recently broke out in September 2020 which led to the recently US-brokered ceasefire of October 26, 2020.[1] This ceasefire already looks to be fraying mere days after it came into effect.
The conflict has garnered much media attention not only because of concerns that two states going to war in the midst of a global pandemic would exacerbate its effects, but also because of the geostrategic importance of the dispute. This is illustrated by the fact that key regional powers are backing either State; Turkey and Israel have thrown their weight behind Azerbaijan whereas Russia is supporting the Armenians. Pakistan interestingly is one of the few countries in the world that do not recognise Armenia as a state and has joined Turkey in supporting Azerbaijan.[2]
This article aims to address the legal and geostrategic implications of the latest Azerbaijanian-Armenian conflict. It offers a brief background of the roots and current status of the dispute, going on to apply international law to the conflict, and concludes with a look at the possible implications of the conflict.
Background
The current conflict in Nagorno-Karabakh finds its roots in ethnic tensions between the Azeris and the Armenians that stretch all the way back to the early 1900s. In the 1920s it was made an autonomous area within the Soviet Union which kept tensions under control for the better part of the 20th century.[3] By 1988, however, the fractures that had started to appear within the Soviet Union also gave rise to questions about the future of Nagorno-Karabakh. As ethnic Armenians started to protest and demand unification with Armenia, the Azerbaijanian government abolished the special administrative status of Nagorno-Karabakh and brought it directly under Azerbaijanian rule.[4] In response to this, in 1991, the Armenians held a referendum in which the majority voted for the creation of an independent state – the Republic of Artsakh. Azerbaijan declared war against the new state which it claimed was receiving help from the Armenians.
In 1994, Russian-led negotiations resulted in a ceasefire agreement between the conflicting parties and established the Line of Contact separating both forces. By then, the war had consumed the lives of thousands of people. The Minsk Group, a mediation effort by the Organization for Security and Cooperation in Europe (OSCE) has since held peace talks in an attempt at reconciliation, however, these have not led to a peace treaty and fighting continues.[5] The recent bout of clashes at the Line of Contact led to the governments of Azerbaijan, Armenia and Nagorno-Karabakh imposing martial law in their territories.[6] The conflict resulted in a great loss of life and infrastructure[7] until a ceasefire was agreed to on October 26 the success of which remains to be seen.
International Reaction to Current Escalation
The most recent escalation has received a mixed reaction from the international community with countries as expected responding in accordance with their geopolitical interests and historical involvement in the conflict. The United States[8], Russia, United Kingdom[9], Germany and India[10] have all called for a peaceful resolution of the conflict. On the other hand, states like Pakistan[11] and Turkey have rallied behind Azerbaijan, and blamed Armenia for escalating tensions. Turkey has gone so far as to rebuff American, French and Russian calls for a ceasefire, arguing that these countries have lost moral authority because they have ignored the region for almost three decades.[12] Turkey has also called for a withdrawal of Armenian forces before any ceasefire can take place. Israel is also supporting Azerbaijan due in part to it viewing Armenia to be pro-Iran and a close arms trade relationship with Baku.[13]
Nagorno-Karabakh and International Law
The legal questions regarding Nagorno-Karabakh revolve around the 1991 referendum that created the Republic of Artsakh. These questions can be categorised as follows:
- What is the legality of Artsakh’s statehood under International Law?
The starting point in determining what is or is not a state is found in Article 1 of the Montevideo Convention on the Rights and Duties of States (1933).[14] This provision clarifies that a state must possess a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. While Artsakh does satisfy the first three conditions of statehood, it does not possess the capacity to enter into relations with other states. This is because no other state has recognised Artsakh’s independence. Under the constitutive theory of statehood, statehood is contingent on recognition by other states. The declaratory theory of statehood meanwhile holds that declarations of recognition by other states hold no legal effect and statehood is contingent upon an entity meeting the factual criteria of statehood. Ironically even Armenia, the biggest supporter of ethnic Armenians in Nagorno Karabakh, does not recognise the Republic of Artsakh. Artsakh does not fulfil the criteria of either the constitutive or the declaratory theory given its lack of recognition and its inability to enter relations with other states. Hence, it is not a state under international law.
It should be noted that there are some cases of sub-national government bodies in countries like the United States[15] and Australia[16] that do recognise Artsakh. However, the official foreign policy stance of both these states is that their foreign policy is determined at federal government level and any sub-national recognition of Artsakh Republic does not amount to federal recognition.
- The question of occupation: Is Nagorno-Karabakh under Armenian occupation?
The United Nations Security Council Resolutions of 1993 on the dispute condemned both Azerbaijan and Armenia for their actions in the war.[17] However, they also used the word “occupied” twelve times to describe the disputed territory of Nagorno Karabakh[18]. United Nations General Assembly (UNGA) resolution 62/243[19] from 2008 also called for the immediate and unconditional withdrawal of all Armenian forces from the occupied territories of Azerbaijan. Despite the non-binding nature of UNGA resolutions, the language used can be taken as an indication of the international community’s view of the situation in Nagorno-Karabakh. Lastly, Nagorno Karabakh can also be considered as an occupied territory under Article 42 of the 1907 Hague Regulations.[20] Article 42 states that for a territory to be considered as occupied under International Law, it must be under the complete authority of a hostile army that must be physically present in that territory. This occupation can also be done through the use of proxy forces, provided that the foreign state has de facto control over local authorities, who in turn exercise effective control over the territory in question. Given that both these conditions are met in the case of Nagorno Karabakh,[21] it can be considered an occupied territory under international law.
Moreover, interestingly, Armenia is also a signatory of Additional Protocol I under which “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination” are considered to be international armed conflicts.[22] This provision is seen as bestowing legitimacy on national liberation movements. While the people of Nagorno-Karabakh may be considered a ‘peoples’ under international law given their distinct ethnicity and language, further discussion is required to evaluate whether they are exercising their right to self-determination, secessionary or otherwise. However, given Azerbaijan is not a signatory to the Protocol and the armed conflict is already an international one given it qualifies as an occupation, this may not be relevant for the purposes of Additional Protocol I.
- By declaring independence, were the residents of Nagorno-Karabakh exercising their legal right to self-determination?
Pro-Artsakh acolytes argue that the ‘peoples’ of Nagorno-Karabakh have the right to self-determination in international law. The right to self-determination as enshrined in Article 1(2) and 55 of the Charter of the United Nations affirms the equal rights and self-determination of all peoples. The most commonly used interpretation of this article is that all people are free to choose their political status and pursue their economic, social and cultural development. In addition to the UN Charter, the right to self-determination is also found in General Assembly Resolutions, including Resolutions 1514, 2625 and 37/43. Furthermore, both the International Covenant on Civil and Political Rights, 1966[23] and the International Covenant on Economic, Social and Cultural Rights, 1966[24] have included the right to self-determination as a fundamental human right. However, the right to self-determination does not necessarily lead to a right of secession from the parent State, as illustrated by the Canadian Supreme Court in the Quebec case.[25] In that case the court distinguished between internal and external self-determination. It held that if a government respects all its citizens, and respects self-determination within its borders, it is entitled to international protection of its territorial integrity. However, erring on the side of caution, it concludes that even when the pursuit of internal self-determination is frustrated, it may not lead to a right to secession. As a result, while the right of self-determination is guaranteed under international law, it may not lead to a right to secede. A declaration of independence is not itself contrary to international law though as ruled by the International Court of Justice in its Kosovo Advisory Opinion.[26]
Conclusion
Statehood is a famously uncertain area of international law. It seems that all that can be said about the struggle in Nagorno-Karabakh with any degree of certainty is that its peoples have a right to self-determination. However, the success of the realisation of this right, if it leads to independence or secession in favour of joining Armenia, will be contingent on the international community’s reaction. This reaction is largely indicated by States’ recognition, or not, of the entity. This recognition often involves States balancing between the antithetical principles of territorial integrity and secessionary self-determination. The interplay of questions on statehood, self-determination and occupation, makes the conflict over Nagorno-Karabakh a very complicated yet interesting legal issue. Furthermore, the geopolitical and strategic interests of other states further add to its complexity. Unfortunately, given the involvement of larger powers, it shows no signs of being peacefully resolved in the near future.
[1] “Nagorno-Karabakh Conflict: Armenia and Azerbaijan Agree US-Brokered Ceasefire,” BBC News, October 25, 2020, https://www.bbc.com/news/world-europe-54686284.
[2] “Global and Regional Issues,” Ministry of Foreign Affairs (Government of Pakistan), accessed October 27, 2020, http://mofa.gov.pk/global-and-regional-issues/ ; Andrew Korybko, “Why Is Pakistan the Only Country That Does Not Recognise Armenia?,” The Express Tribune, July 21, 2020, https://tribune.com.pk/article/97102/why-is-pakistan-the-only-country-that-does-not-recognise-armenia; and see Report of meeting, OIC Contact Group on Armenian Aggression, held at UN HQ in Sept 2019 available at: https://www.oic-oci.org/docdown/?docID=4525&refID=1255
[3] “Stalin’s Legacy: The Nagorno-Karabakh Conflict,” Association for Diplomatic Studies & Training, August 6, 2013, https://adst.org/2013/08/stalins-legacy-the-nagorno-karabakh-conflict/.
[4] Philip G. Roeder, “Varieties of Segmented States,” in Where Nation-States Come From: Institutional Change in the Age of Nationalism (Princeton University Press, 2011), p. 51.
[5] CFR, Nagorno-Karabakh Conflict, https://www.cfr.org/global-conflict-tracker/conflict/nagorno-karabakh-conflict
[6] “Azerbaijan’s Parliament Approves Martial Law, Curfews – President’s Aide,” Reuters (Thomson Reuters, September 27, 2020), https://www.reuters.com/article/armenia-azerbaijan-curfew/azerbaijans-parliament-approves-martial-law-curfews-presidents-aide-idINKBN26I0OU.
[7] Al Jazeera, “The Human Cost of the Nagorno-Karabakh Conflict,” Al Jazeera, October 12, 2020, https://www.aljazeera.com/news/2020/10/12/the-human-cost-of-the-nagorno-karabakh-conflict.
[8] “Putin, Macron, Trump Call for Talks on Nagorno-Karabakh without Preconditions,” TASS, accessed October 11, 2020, https://tass.com/politics/1207437.
[9] Global Affairs Canada, “Joint Statement by Canada and the United Kingdom on the Armenia-Azerbaijan Conflict” (Government of Canada, September 28, 2020), https://www.canada.ca/en/global-affairs/news/2020/09/joint-statement-by-canada-and-the-united-kingdom-on-the-armenia-azerbaijan-conflict.html.
[10] Shubhajit Roy, “Armenia-Azerbaijan Flare-up: India Asks All Sides to Cease Hostilities,” The Indian Express, October 1, 2020, https://indianexpress.com/article/india/armenia-azerbaijan-flare-up-india-asks-all-sides-to-cease-hostilities-6664061/.
[11] , “Pakistan Expresses ‘Deep Concern’, Assures Support to Azerbaijan over Nagorno-Karabakh Conflict” (The News International, September 27, 2020), https://www.thenews.com.pk/latest/721049-pakistan-expresses-concerns-over-nagorno-karabakh-conflict-assures-support-to-azerbaijan.
[12] Nailia Bagirova and Nvard Hovhannisyan, “Turkey Rebuffs Russia, France and U.S. over Nagorno-Karabakh Ceasefire Moves,” Reuters (Thomson Reuters, October 1, 2020), https://www.reuters.com/article/us-armenia-azerbaijan/turkey-rebuffs-russia-france-and-u-s-over-nagono-karabakh-ceasefire-moves-idUSKBN26M5IJ.
[13] “Azerbaijan Using Israeli ‘Kamikaze’ Drones in Nagorno-Karabakh Conflict,” The New Arab, October 1, 2020, https://english.alaraby.co.uk/english/news/2020/10/1/azerbaijan-using-israeli-kamikaze-drones-in-nagorno-karabakh-conflict.
[14] “Convention on Rights and Duties of States Adopted by the Seventh International Conference of American States,” United Nations Treaty Collection, accessed October 11, 2020, https://treaties.un.org/pages/showdetails.aspx?objid=0800000280166aef.
[15] “Michigan Recognizes Artsakh Independence,” The Armenian Weekly, September 28, 2017, https://armenianweekly.com/2017/09/28/michigan-recognizes-artsakh-independence/.
[16] “Artsakh Independence-Recognized NSW Delegation in Armenia,” ArmenPress, July 13, 2013, https://armenpress.am/eng/news/726040.html.
[17] UN Security Council, Security Council resolution 822 (1993) [Armenia-Azerbaijan], 30 April 1993, S/RES/822 (1993);
UN Security Council, Security Council resolution 853 (1993) [Armenia-Azerbaijan], 29 July 1993, S/RES/853 (1993);
UN Security Council, Security Council resolution 874 (1993) [Armenia-Azerbaijan], 14 October 1993, S/RES/874 (1993);
UN Security Council, Security Council resolution 884 (1993) [Armenia-Azerbaijan], 12 November 1993, S/RES/884 (1993).
[18] Todd Carney, “Applying International Law to the Nagorno-Karabakh Conflict,” Opinio Juris, January 21, 2020, http://opiniojuris.org/2020/01/22/applying-international-law-to-the-nagorno-karabakh-conflict/.
[19] UN General Assembly, The situation in the occupied territories of Azerbaijan : report of the Secretary-General, 30 March 2009, A/63/804
[20] “International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907;
“Military Occupation of Azerbaijan by Armenia,” Geneva Academy, accessed October 11, 2020, http://www.rulac.org/browse/conflicts/military-occupation-of-azerbaijan-by-armenia.
[21] “Armenia and Azerbaijan Fight over Disputed Nagorno-Karabakh Region,” BBC News, September 28, 2020, https://www.bbc.com/news/world-europe-54323553.
[22] International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 34.
[23] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171
[24] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3
[25] Reference Re Secession of Quebec, [1998] 2 SCR 217
[26] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), General List No. 141, International Court of Justice (ICJ), 22 July 2010
