The fact that Nagorno-Karabakh holds immeasurable significance for Armenia is an incontrovertible truth. Armenians have long felt a profound sense of injustice and double standards within the international community regarding Nagorno-Karabakh. This sentiment has grown stronger after the dissolution of the de facto Artsakh Republic and the ethnic cleansing of Armenians from their ancestral homeland. These grievances have fueled criticism that suggests international law has no influence when it comes to safeguarding Armenian interests.
This article aims to clarify the principles of international law and dispel common misunderstandings and misinterpretations about it. Although this article can provide clarity to the reader, it cannot alter the harsh reality on the ground. Nonetheless, the goal is to demonstrate that the law is not as culpable as it might seem, encouraging reflection on past mistakes and offering a more nuanced perspective on the current situation. It also aims to shed light on what can be expected from the law and the international community.
The Grass on Our Lawn
The prevailing narrative in Armenia regarding the Nagorno-Karabakh issue can be summarized as follows: The people of Nagorno-Karabakh exercised their right to self-determination through the April 3, 1990 law, “Concerning the Procedure of Secession of a Soviet Republic from the USSR.” On September 2, 1991, the Nagorno-Karabakh Autonomous Region declared independence. On December 10, 1991, Nagorno-Karabakh held a referendum on independence, preceding Azerbaijan’s own referendum by five days.
With the dissolution of the USSR on December 21, 1991, two independent and legally equal entities emerged on the territory of Soviet Azerbaijan: the Nagorno-Karabakh Republic and the Republic of Azerbaijan.
But can this stance withstand legal scrutiny?
The First Layer: Soviet Law
We need to determine whether Nagorno-Karabakh had the legal right to secede from the Azerbaijan SSR. According to the then-national law, the Soviet Constitution allowed for secession under Article 72. However, this right applied only to Union Republics and not to autonomous regions such as the Nagorno-Karabakh Autonomous Oblast (NKAO). The 1990 Law on Secession presented a complex procedure for secession for such units as NKAO. It could be argued that Gorbachev intentionally made this law unreasonably complex to hinder potential breakaway aspirations.
There is a significant inconsistency between the scope of units granted secession rights under the constitution and the law. According to Article 173 of the Constitution, in case of any inconsistencies, the Constitution takes precedence. This means that any territorial changes should have been made with the consent of the Union Republic, specifically the Azerbaijan SSR, in accordance with Articles 78 and 86. However, for the purpose of this analysis, we will set aside this otherwise formidable issue and focus solely on the Law on Secession.
Several conditions had to be met to achieve secession:
- The secession process had to be initiated by the Azerbaijani SSR under this law, which it did not.
- The approval of the Supreme Soviet of the Azerbaijani SSR was required to conduct a referendum, as stated in Article 2 of the Law.
- According to Article 4, the organization and review of the referendum were to be handled by the electoral commission of the Supreme Soviet of the Azerbaijan SSR.
- Articles 8 and 9 specified the need for a comprehensive assessment of potential consequences for each Soviet and autonomous republic by the Supreme Soviet of the USSR. Additionally, Article 9 required a final act from the Congress of People’s Deputies of the USSR to facilitate a transitional phase leading to secession.
Obviously, the NKAO authorities did not fulfill any of these requirements, which were, in essence, impossible to fulfill. The Law itself was designed as an insurmountable barrier from the outset. Hence, under Soviet law, the prospects of Nagorno-Karabakh achieving lawful secession were minimal. Can international law offer a viable alternative?
Does International Law Speak Armenian?
Self-determination is a significant departure from the traditional view that the creation of states is determined by facts rather than laws. Yet, it is a concept deeply rooted in legal context, and using it outside its intended meaning would be counterproductive from a legal standpoint.
According to Article 1(2) of the UN Charter, one of the purposes of the Organization is to promote “friendly relations among nations based on respect for the principle of equal rights and self-determination of people.” Article 55 of the Charter connects self-determination with the right of peoples to unhindered economic development. Within the Charter, self-determination refers to the sovereign equality of existing states, particularly the right of a state’s people to choose their own form of government without external interference.
Self-determination can also include the right to choose a particular form of government within a state, known as internal self-determination. This is implied in Articles 73(b) and 76(b) of the Charter. However, the Charter does not explicitly address the right of external self-determination, which would grant a specific territory or a people the right to secede. Over the next three decades, the General Assembly used its resolutions to apply the concept of self-determination outlined in the Charter to real-world situations. As a result, these resolutions, based on the principles of the Charter, paved the way for the development of decolonization law.
The 1960 Colonial Declaration and the 1966 International Covenants on Human Rights included similar references to self-determination. The 1970 Friendly Relations Declaration aimed to establish this legal norm as a guiding principle of the United Nations, with a primary focus on traditional colonization. The ICJ’s Namibia Opinion (para. 52), and the Western Sahara case (para. 54) confirmed this. However, the Court cautioned against interpreting self-determination too broadly, even within the concept of decolonization.
Advocates who support the right to external self-determination often highlight Principle 5, paragraph 7 of the Friendly Relations Resolution, commonly referred to as the “safeguard clause”. According to this formulation, self-determination is realized when people participate in their government, and the state represents the entire population of its territory without any form of discrimination. This principle was reaffirmed during the United Nations World Conference on Human Rights in Vienna in 1993.
But what if that is not the case? In such situations, the concept of remedial secession comes into play, where international law allows distinct peoples within a state to secede in extreme cases of oppression and systematic human rights violations by the state. The Canadian Supreme Court discussed this idea hypothetically in the Quebec secession case. The Court acknowledged the colonial context of this principle and emphasized the importance of cultural identity and internal self-governance for different groups within the state.
The ICJ’s caution in the Namibia and Western Sahara cases serves as a reminder that a proposed rule cannot be considered as such until it has been definitively established through practical application. Currently, the concept of self-determination as a means of expressing secession has not reached this level of establishment in international law. Therefore, the reliance on self-determination by Armenia and Nagorno-Karabakh is problematic, to say the least, when viewed through the lens of established international law.
Furthermore, Armenia’s military intervention and its effective control over the region significantly heightened the legal complexity of the issue. This transformed the conflict from a local insurgency seeking secession into an International Armed Conflict. It is important to note that this does not mean that Armenia should have ignored Azerbaijan’s acts of violence against Armenians in Artsakh. However, this is how the situation appears from an international law perspective.
What About Kosovo?
The simple answer is “forget about it”. The recognition of Kosovo by over 100 states as an independent state, as well as the ICJ’s advisory opinion on Kosovo’s declaration of independence, does not establish a precedent for Artsakh.
After Kosovo unilaterally declared independence in 2008, Serbia requested that the ICJ determine whether this declaration complied with international law. The entire process was fraught with political tension and had the potential to trigger unpredictable geopolitical consequences. With this in mind, the Court stated that the declaration of independence itself did not violate international law. However, this did not mean that the declaration had any impact on Kosovo’s right to “remedial” self-determination. The Court explicitly clarified this in Articles 82 and 83 of its opinion, emphasizing that its mandate was limited to addressing the specific question posed to it.
In simpler terms, although Kosovo could declare independence, this declaration did not hold any significant weight under international law. International law did not effectively regulate the declaration. Additionally, Article 51 of the ICJ opinion intentionally avoided taking a stance on Kosovo’s statehood. The question of statehood was left to the political sphere, where such matters are typically addressed. Therefore, the question of why many states chose to recognize Kosovo and not Nagorno-Karabakh is futile. These matters are inherently sui generis, making it unwise to make broad generalizations. Ultimately, recognition remains primarily a political act that defies legal precedent.
The Kosovo issue, similar to the case of Nagorno-Karabakh, is highly complex and extensive. It requires a separate analysis that falls beyond the scope of this article. However, what is important to note is that in both cases, international law is reluctant to recognize the right of external self-determination. The ICJ’s cautious approach emphasizes the consistency of international law in this regard.
Was Nagorno-Karabakh a Part of Azerbaijan When Azerbaijan Gained Independence?
The prevailing narrative in Armenia rejects this notion. However, according to the principle of uti possidetis, when a (federal) state dissolves, its former units gain independence within their previous administrative borders. Therefore, when Azerbaijan gained independence, it did so within the boundaries it had during the Soviet time, which included Nagorno-Karabakh.
Now, there is a counter-argument suggesting that Azerbaijan’s claim to continuity from the 1918-1920 Azerbaijan Republic, which did not have ownership of Nagorno-Karabakh, implies that Azerbaijan relinquished ownership of Nagorno-Karabakh upon its independence in 1991. However, this argument is not valid. The USSR incorporated Nagorno-Karabakh into the borders of the Azerbaijani SSR, making it an integral part of that administrative entity. According to uti possidetis, the latest legal fact, which in this case is the Soviet Constitution, serves as a reference point. Hence, under international law, Nagorno-Karabakh was considered a part of Azerbaijan when Azerbaijan gained independence in 1991.
Lastly, while Soviet Russia forcefully sovietized Armenia and transferred Nagorno-Karabakh to Azerbaijan, this was not expressly prohibited at the time, as it is under Article 2(4) of the UN Charter today.
Artsakh’s Statehood As an Established Fact?
Nagorno-Karabakh had the potential to change the situation over time through the principle of ex factis jus oritur. Article I of the Montevideo Convention of 1933 established basic criteria for statehood, which include (a) a permanent population, (b) a defined territory, (c) a government, and (d) the capacity to enter into relations with other states.
To be considered a valid criterion in international law, the fourth criterion should encompass both government and independence requirements. While the first three criteria could hypothetically be deemed met in the case of Nagorno-Karabakh, Armenia’s military, political, and economic influence hindered its true independence. This impedes the process of attaining statehood over time. It is important to acknowledge that Armenia’s involvement was crucial in ensuring the safety and security of the local population. However, it does affect the legal perspective. It is worth noting that just because the appearance may not be favorable to Armenians, it doesn’t necessarily mean it should be different; our judgment may not always be accurate.
In fact, after the November 9, 2020 ceasefire agreement, Nagorno-Karabakh could have potentially met the criteria for statehood over time as Armenia’s involvement was significantly reduced. This could have been one of the contributing factors why Azerbaijan quickly organized the ethnic cleansing of Armenians in the region.
Controversial as it may sound, the legal position of the people of Artsakh is currently strong. While ethnic cleansing is not explicitly defined as a crime under international law, Azerbaijan’s actions in Artsakh were widely recognized as such and received condemnation. Importantly, the right to internal self-determination for Armenians remains unaffected. There have been discussions on potential avenues to reverse the ethnic cleansing in Artsakh, which is undoubtedly a complex matter (see here and here).
If a scenario like this were to occur, Armenians would begin with internal self-determination, as recognized by international law, which could potentially lead to autonomy. However, remedial secession is not currently an option under international law. It could become a viable option if there are significant legal transformations or changes in state practice. Although these changes are not immediate, they are not impossible. This underscores the critical need for a strong, well-crafted legal strategy.
International law possesses a unique nature that sets it apart from domestic law. While assessing its effectiveness against specific benchmarks, it is important to remember that no law, whether international or domestic, can guarantee flawless outcomes – such a perfect ideal is simply unattainable. However, this does not make international law irrelevant. On the contrary, it has produced significant results, shaping a world where any conflict is met with discomfort and of criticism, all driven by a steadfast commitment to the principles it upholds. Demystifying international law allows us to have a more reasonable and independent understanding of our surroundings. The law does not operate in mysterious ways.
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