(This is the second article from the two-article series covering the conflict from historical and international law perspectives. Click here to read the first article.)
The international law applicable to the situation of Nagorno-Karabakh – besides the international humanitarian law governing the conduct of hostilities mentioned above – encompasses two main principles: The right to self-determination and the prohibition on the use of force. Additionally, the potential of the Minsk Group shaping the outcome of this conflict has to be taken into account.
1. The prohibition on the use of force
The prohibition on the use of force, enshrined in Article 2 (4) of the UN Charter, states that all members shall refrain from the threat or use of force against the territorial integrity or political independence of any state. The illegality of any act of aggression, especially to gain territory, is universally accepted customary law. This principle is supported by the rules on occupation, which clearly state that an occupying power does not acquire any sovereignty over the occupied territory. On the contrary, the occupying state is no more than an administrator of the territory and has multiple obligations to guarantee the safety of the civilian population. According to Geneva Convention IV, supplemented by Additional Protocol I, deportations, transfers of civilians, forced labour, pillage, and destruction of property are specifically prohibited in occupied territories. Moreover, the occupying power needs to ensure food and medical supplies for the population, maintain public health as well as provide clothing, beddings and shelter essential to survival. Although these last duties cease to apply one year after the general close of military occupation, the general rules on the protection of civilians are applicable for the whole duration of the occupation.
Despite Armenia’s position of not occupying Nagorno-Karabakh, according to international law, there is no doubt that Armenia was in fact occupying the region since 1994. Pursuant to Article 42 Hague Regulations 1907, the territory is considered occupied when a state exercises actual authority over it. In the 2015 judgement Chiragov v. Armenia, the European Court for Human Rights recognized that Armenia was exercising effective control over Nagorno-Karabakh through extensive financial, political and military support given to the NKR.
The view that Nagorno-Karabakh has been occupied is also supported by the UN Security Council, but without the particular ascertainment that Armenia is the occupier. In 1993, the Security Council passed four resolutions (822, 853, 874 and 884) demanding the “immediate withdrawal of all occupying forces from occupied areas of Azerbaijan”. This was reiterated and specified by the General Assembly in 2008 with its Resolution 62/243, calling for “the immediate, complete and unconditional withdrawal of all Armenian forces from all the occupied territories of the Republic of Azerbaijan”. However, it must be noted that this Resolution was passed with only 39 states in favour, as 7 states voted against it and 100 abstained. This clearly shows the reluctance of the international community to take a position in this conflict. For the most part, the conflict between Armenia and Azerbaijan has gone unremarked by the rest of the world. Despite recent developments, states still find it difficult to provide a legal assessment on the situation, as shown by the German representative in the Security Council, who recently avoided several times to answer whether Germany considered Nagorno-Karabakh to be legally a part of Azerbaijan.
Due to the international law principles discussed, Armenia was never able to acquire a legal title to the occupied Nagorno-Karabakh. Instead, it violated not only the prohibition on the use of force when it attacked Azerbaijan, it also violated international humanitarian law as a belligerent occupier. The only possible justification for the interference by Armenia could be a humanitarian intervention. However, to invoke this concept, Armenia would need to demonstrate that its use of military force was required to protect the population of Nagorno-Karabakh from gross human rights violations.
2. The right to self-determination
On the other side of this conflict, there is the right of the people to self-determination. This right was mentioned as early as 1918 by U.S. President Woodrow Wilson in his “14-Point Program” and was finally enshrined in 1967 in the two UN Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR). Accordingly, all peoples have the right to freely determine their political status. However, this right does not necessarily imply a right to a sovereign state for every people. It was initially designed as a legal justification for freedom fights of peoples suffering from colonial or racist regimes, as well as territories under alien occupation and exploitation (external right to self-determination). However, not every minority is a suppressed group, especially not if their rights as minorities are respected and protected by the state authorities. Therefore, ethnic minorities within a country primarily have the right to enjoy their own culture, to practise their own religion, or to use their own language within that state (Art 27 ICCPR). The state has the corresponding obligation to integrate those rights within its structures and to ensure that minorities can participate in social and political structures. Hence, minorities have a right to (internal) self-determination within the framework of an existing state. Otherwise, every minority, no matter how small, would have the right to secede from its home state and start a new country.
It is controversial whether USSR-law encompassed a right to secession. The Constitution provided that the territory of a Union Republic may not be altered without its consent. In contrast, the Law on Secession allowed the secession of a Union republic from the USSR within a certain framework but did not deal with the secession of territory from a Union republic. Autonomous oblasts, such as Nagorno-Karabakh, solely were given the right to decide to either stay within the USSR, stay within the Union republic or become their own state if the Union Republic, in this case, Azerbaijan, decided to secede from the USSR. However, at the time of the declaration and referendum in Nagorno-Karabakh, Azerbaijan was already an independent state and USSR no longer applicable.
3. The peace process
The agreements between the parties during the peace process serve as a third pillar for assessing this conflict. Even in 2020, the OSCE Minsk Group is the only internationally body agreed upon to mediate the peace negotiations in the conflict. The Madrid Principles, which were proposed by the Minsk Group in 2007 and updated in 2009, are basic principles for the settlement of the conflict. Inter alia, they call for the “future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will”. However, both sides have criticized the principles and only accepted the preamble so far. Within the Minsk process, the status of Nagorno-Karabakh was always to be decided through negotiations between the parties, and possibly a referendum. Although the agreement from 10 November 2020 finally ended the latest fighting, it does by far not provide a final solution for the conflict. Instead, it arranges for the deployment of a Russian peacekeeping force for the next five years along the contact line in Nagorno-Karabakh. Additionally, internally displaced persons and refugees shall return to the territory of Nagorno-Karabakh and adjacent districts. Most importantly, the parts of Nagorno-Karabakh that Azerbaijan managed to take control of, together with the Aghdam and Kalbajar district, will remain under Azerbaijan’s authority. Although Azerbaijan now has de jure and de facto control over Nagorno-Karabakh, the armed conflict about its legal status is not yet resolved. So far, no peace agreement ending the conflict and deciding on the status of the region has been signed between the parties.
Despite the prolonged time of the conflict, Armenia and Azerbaijan were unable to achieve peace because both sides have focused on the aggressions and violations committed by the other one, thereby creating an environment of hatred and mistrust. Due to this propaganda of portraying the other side as the archenemy, both countries are trapped by their own radical narratives and are unable to work together on a peaceful solution. That no solution has yet been found is also partly the responsibility of the international community, which has turned a blind eye to the crimes committed. Especially the Security Council as the primary actor to maintain and restore peace has failed, by not providing peacekeeping forces or taking other measures. Ultimately, it comes down to Armenia and Azerbaijan to decide through negotiations on how to resolve the conflict.
Conclusion
At present, the Republic of Nagorno-Karabakh cannot be regarded as an independent state due to the facts that it relies on Armenia to exercise control and that it has not been recognised by any other state. With Azerbaijan regaining control over Nagorno-Karabakh, the government needs to ensure compliance with the rights of the Armenian minority group and provide protection from deportation, exploitation or discrimination. Although there is no international right to secession, a right to political independence could be considered if the ethnic Armenians suffered systematic and gross human rights violations through the state authorities of Azerbaijan, and no remedy was available.
As a result, Nagorno-Karabakh is part of Azerbaijan under international law. The state of Azerbaijan was legitimately established with the borders it had under Soviet law (uti possidetis iuris), which included Nagorno-Karabakh. The principle of territorial integrity must be maintained, but in the case where administrative borders were more or less arbitrary drawn, it is questionable whether the prior status quo is indeed the one worth being preserved. This is exactly why the Minsk Group decided upon the Madrid Principles and suggested that the legal status of Nagorno-Karabakh should be determined through negotiations. Only future can tell whether the recent victory of Azerbaijan has removed the status of Nagorno-Karabakh from the peace talks, or if the issue will continue to be the subject of negotiations.