At Daggers Drawn: International Legal Issues Surrounding the Conflict in and around Nagorno-Karabakh

On 10 November, Azerbaijan and Armenia signed a Statement with the Russian Federation that fundamentally changes the scope of the conflict concerning Nagorno-Karabakh and the surrounding territories as well the status of the so-called “Republic of Artsakh” that had declared independence in early 1992. Even if it remains to be seen whether the Russian-brokered tripartite agreement will establish a framework for a definite settlement of the decade-long dispute on the status and legal regime of the Karabakh Armenians, it is designed to reshape the territorial and political realities in the South Caucasus and bring – at a minimum – a lasting cease fire.

Armenia agreed to accept the result of Azerbaijan’s recent military campaign and, in addition, retrocede control over districts that remained occupied (Articles 2 and 6). In addition, the parties will guarantee a territorial link, the Lachin corridor, to ensure the connection between the territory of Armenia and Nagorno-Karabakh (Article 6). Armenia and Azerbaijan further invited Russia to deploy, for an initial five-year period, “peacemaking forces” along the contact line and for ensuring the security of the Lachin corridor (Articles 3 and 6). The Russian presence is envisioned as a cycle of self-renewing five-year terms unless one of the parties objects to an extension. Armenia also accepted to ensure the unimpeded transportation and communication between Azerbaijan and its exclave Nakhchivan (Article 9), with the latter obtaining a direct territorial link to Turkey. Under Article 7, refugees and displaced persons will be able to return to their homes under the supervision of the UNHCR. Crucially, the agreement leaves the “final status” for Armenian-inhabited Karabakh unresolved.

The recent events in Nagorno-Karabakh resurface a number of international legal questions. Can a State use force against a secessionist movement? Can territory lost several decades ago be repossessed through military means? Are there limits concerning the use of force, the use of mercenaries, or the use of cluster munition? Some of these have been addressed already in different fora (see, for instance, here and here). Whether, when and how those responsible for the most recent violence and the atrocities committed during the massive ethnic cleansing in the 1992-94 war will ever be held accountable, remains to be seen. In this contribution, we review the various claims that both countries have brought forward with regard to the status of Nagorno-Karabakh (and the adjacent districts) during almost three decades, and comment on issues concerning the use of force, self-determination, secession as well as on the chances that the enclave’s final status will be settled.

The Question of the Use of Force

While international law does not prohibit in an absolute manner the use of force by a State within its territory (for instance during civil wars), the most recent developments and the Tripartite Statement of 10 November have shown that the overall dispute and the recourse to force occurred between two States, Azerbaijan and Armenia, and not merely between State authorities and an insurrectional movement. Armenia controlled the “Nagorno-Karabakh Republic” (NKR), it entered into a ceasefire agreement in respect of the dispute, and it recognized its defeat accepting the loss of territories that it previously – illegally – occupied. Thus, Article 2(4) of the U.N. Charter is fully applicable, in particular between two States that are UN Member States and have pledged adherence to the principle and rules of the Organisation. This is certainly the case irrespective of the fact that Armenia’s territorial integrity was – it seems – never put into question by Azerbaijan’s use of force. Armenia did not have a title to the territory of NK and even less to the to the barren lands between Aghdam, Füzuli, Lachin and Kalbajar.

The fact that the conflict involved the fight for, or the re-conquest of, territory illegally occupied by another State – or even a non-state entity – does not lead necessarily to the conclusion that the rightful territorial sovereign may take enforcement – by military action – into its own hands. Any other result would challenge the overall architecture of peace preservation (see here at p. 70). The massive use of force since 27 September could not be justified under a putative right to self-defence, as Azerbaijan claimed somewhat tongue-in-cheek, given problems in the areas of immediacy, necessity and proportionality. Continued occupation cannot be equated with “continued attack” permitting the recourse to self-defence in line with Article 51. Likewise, Baku could not justify its “war of liberation” with reference to the four Security Council resolutions of 1993. In these four resolutions concerning the conflict (of which further below), the Council had urged those involved to cease the armed activities, to effectively enforce the cease-fire agreements, and to continue to seek a “negotiated settlement of the conflict”. Of course, almost 30 years had lapsed without sensible progress having been made in terms of the settlement of the conflict, despite the work of the OSCE’s Minsk Group. But this, in itself, should not – and could not – imply that Azerbaijan had a right to resort to self-help and impose its position by recourse to violence. A valid claim over the land does not justify the use of force (for a similar position see the 2005 Partial Award of the Ethiopia-Eritrea Claims Commission on the ius ad bellum here at §10-11).

The Question of the NKR’s 1992 Declaration of Independence

Tackling the question of whether, at the commencement of hostilities in September 2020, the NKR constituted a State under international law, or whether it possessed (or still possesses) an entitlement to become a State today requires a deep dive into contested legal history. Before we go there, preliminary remarks are in order. International law does not prohibit declarations of independence. They are neither sufficient nor necessary for the establishment of a new State. As Professor Crawford dryly remarked before the ICJ, “[a] declaration issued by persons within a State is a collection of words writ in water; it is the sound of one hand clapping”. Endorsing this view, the Court noted in its 2010 Kosovo Advisory Opinion that “[s]ometimes a declaration resulted in the creation of a new State, at others it did not”, adding that “State practice (…) points clearly to the conclusion that international law contained no prohibition of declarations of independence” (§79). For this reason alone, addressing the issue of legality or illegality of a declaration of independence is an exercise in futility. It certainly does not resolve the question whether the NKR is or was a State.

Whether Stepanakert’s independence declaration was legal under Soviet law is a different and peripheral question. In a nutshell, aspirations of second- or third-level sub-units towards independence could not be grounded in the constitutional realities of the USSR. Minority groups trapped on a republic’s territory had no right to independence. Attempts to formally include the Karabakh province into the Armenian SSR under the then-existing Soviet law and constitution had been invalidated by the Azerbaijani as well as the USSR authorities (see here, pp. 28-39). The standard lines in which self-determination was to be exercised as the Soviet Union dissolved at the end of 1991, was along pre-existing republican borders. Azerbaijan achieved independence within the boundaries of the former SSR and Armenia did the same within its SSR boundaries.

Disregarding uti possidetis iuris, Armenia claimed that within the dissolving USSR, two States were established on the territory of the Azerbaijani SSR – the Republic of Azerbaijan and the “Republic of Nagorny Karabakh” (see, e.g., here, Annex, §§1, 43). This claim does not account for the findings of the Badinter Committee that are fully transposable to the question of the boundaries between former Soviet Republics. (cf. Pellet here, p. 185). The Committee considered that “whatever the circumstances, the right to self-determination must not involve changes to existing frontiers [of existing republics within the Federation] at the time of independence (uti possidetis juris)” (Opinion No. 2, §1). At least in the relations between the newly independent Armenia and the newly independent Azerbaijan, there could not have been any uncertainty about their common international boundary and the extent of their respective territories. Both States confirmed this, for instance, in the 1991 Alma Ata Declaration. Which does not, of course, resolve entirely the question whether the Armenians in Karabakh had a right to self-determination in 1991 or 1992.

The Question of the Right to Self-determination of Karabakh Armenians

The uti possidetis principle did not deny the Armenians in Karabakh an international legal entitlement to constitute themselves as a self-determination unit. In terms of substantive international legal entitlement, Karabakh’s Armenian population had, following Azerbaijan’s independence in 1991, a real claim towards self-determination beyond and independently of the titular autonomy status anchored in the 1937 and 1978 Constitutions of the Azerbaijan SSR as well as its 1981 law on the Nagorno-Karabakh Autonomous Oblast (NKAO) (see here pp. 67-8). This entitlement to self-determination did not involve necessarily a right to independence, but rather the recognition of “every right accorded to minorities under international convention as well as national and international guarantees consistent with the principles of international law” (see here at §2) – in other words: internal self-determination.

The most obvious solution, prior to the commencement of hostilities, would have been for Baku to grant Nagorno-Karabakh meaningful autonomy within an integral Azerbaijan which would have met Karabakh’s entitlement to (internal) self-determination. Did Karabakh Armenians (around 75% percent of NK’s population at the time) have a realistic and fair shot at exercising their economic, cultural and social autonomy within the constitution of the new Azeri Republic? Or would they have faced unsurmountable patterns of discrimination at the time? Providing an answer to this question today involves a number of counterfactuals. Imagination, on both parts, was certainly lacking in the second semester of 1991. Azerbaijan, drunk on its newly acquired independence, had no patience for considering the fate of minorities stranded on its sovereign shores. Karabakh Armenians, on the other hand, quickly realised that “autonomy” was neither a suitable vehicle to enable them to govern their own affairs in line with self-determination standards, nor a territorial arrangement for the realisation of effective participation in the parent state. A credible offer of the “highest possible level of autonomy” did not come forward at the time. And this is how Stepanakert’s declaration of independence of January 1992 came to pass.

Since then, Baku was unwilling to present concrete proposals that clarified the extent and depth of a potential autonomy regime for Nagorno-Karabakh. It remained a promise addressed to international audiences, raising strong doubts as to whether the regime would be able to put in place not only a legal framework but also a system of governance that would ensure that autonomy could be lived in all its dimensions. The problem, as one author observed, is that the nature of the political system in Azerbaijan never allowed for the conceptualisation of political autonomy. In a country where “elections are characterized by massive fraud, where the independent media suffers constant harassment, (…) the promise of a high level of autonomy sounds hollow, and is void of substance” (at pp. 714-15). Yet the absence of democratic practice in Azerbaijan could not mend the DoI’s deficiency and ineffectiveness. To the chagrin of proponents of “earned” sovereignty – an attempt at reconciling self-determination and humanitarian intervention with the principles of territorial integrity – the protection of sovereign privileges is not contingent upon the fulfilment of performance criteria in the domains of rule of law and human rights.

It remains doubtful whether a violation by Azerbaijan of the erga omnes (cf. East Timor (Portugal v. Australia), § 29) – or even the ius cogens (see, e.g., here at §1(e)) – entitlement of Karabakh Armenians to freely determine their collective future within Azerbaijan’s sovereign territory created a right to secede. Since the start of renewed hostilities in September, the question has surfaced whether the saving clause contained in A/RES/2625 (XXV) could be repurposed to justify NK’s quest for independence under the rubric of “remedial secession”. Following its independence, or so the claim went, Azerbaijan did not comport itself in compliance “with the principle of equal rights and self-determination” of NK and was not “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”.

Whether or not remedial secession has emerged as a legal norm is an endless and ultimately futile discussion. As the ICJ noted a decade ago, States express “radically different views” on whether “international law confers upon part of the population of an existing State a right to separate from that State”. In addition, the Court observed that “similar differences existed regarding whether international law provides for a ‘remedial secession’ and, if so, in what circumstances” (id., §82). Aficionados of the doctrine would not only have to provide evidence as to the robustness of this novel norm of customary law, but would also have to demonstrate that the state of customary international law at the end of 1991 was capable of vesting in a self-determination unit a right to secede. The silence of States in respect of the aspirations and claims of the Karabakh Armenians seems to answer this question in the negative. A right to secession does not arise in each case of oppression or discrimination, as cynical as it may sound. The oppression must cross a certain threshold of unbearable persecution that threatens the survival of the group (here at p. 119). While one can hardly deny that Karabakh Armenians were subject to harassment, intimidation, and gruelling beatings until late 1991, it is unlikely that acts of oppression and violence had crossed this threshold.

For analytical purposes, the accelerating chain of events at the relevant time remains important. As a newly independent    State, Azerbaijan declared its independence on 30 August 1991 and was internationally recognized as such in accordance with the uti possidetis principle. The enclave retorted by proclaiming the Nagorno-Karabakh Republic three days later, to which Baku responded by abolishing its constitutional autonomy in November. Stepanakert reacted by organising an independence referendum in December of that year and Azerbaijani authorities launched a blockade of the capital. Against this background, it remains rather questionable whether a claim for independence and statehood constituted the ultima ratio for securing the implementation and the respect of self-determination. The speed of events seems to have overtaken its actors. The NKR Supreme Soviet, the body that ratified the DoI, had not exhausted all effective and realistic remedies. No negotiations between Stepanakert and Baku authorities took place prior to the NKR’s DoI. In any case, the short-circuiting from putative self-determination unit via creating an ethnically homogenous protectorate through force to claiming sovereignty is not something the most fervent followers of the remedial secession doctrine could advocate.

The Question of the De Facto Secession

Independent of questions concerning the legality of the 1992 DoI or a putative right to secede, the creation of new entities submitted to international law remains largely a question of fact (see here at §1(a)). Even in the absence of a right to secession recognised under international law, secession is not prohibited. At best, international law remains disinterested in the phenomenon; it neither prohibits nor encourages it. Until a week ago, the NKR had, through its de facto secession in the early 1990s, emerged as a reality grounded in fact. Following the cease-fire agreements in 1994, the NKR enjoyed undeniable independence from Azerbaijan. But this does not necessarily imply that the NKR is or has become at some point in time a State.

Although the recognition or the absence of recognitions by other States does not determine the legal status of an entity as a State, the reaction of members of the international community is a telling element which need to be taken into account. The NKR, despite its decade-long existence, has not been recognized by any Member State of the United Nations – including Armenia. This is revealing. The reasons for non-recognition might be manifold yet there seem to be at least two elements that might explain the reluctance of other States vis-à-vis the NKR.

First, the factual situation surrounding the establishment of the NKR as a State is tainted by the use of force and the violation of the territorial integrity of Azerbaijan in breach of Article 2(4) of the U.N. Charter. The Security Council remained rather reluctant to formally recognise the involvement of the Republic of Armenia. The four resolutions adopted in 1993 (here, here, here and here) certainly reaffirm the “sovereignty and territorial integrity of Azerbaijan”, but they refrain from naming Armenia, using the rather unclear formulation of “hostile army”. Nevertheless, it appears established that Armenian forces actively participated in the hostilities. Armenian officials have claimed over the years that only Karabakh Armenians have been waging a war of self-defence and that Armenia was nothing more than a concerned neighbour. This has always been a diversion manoeuvre as Armenia exercised significant and decisive influence over a subordinate entity. In the words of former Armenian MoD Manukian, “You can be sure that whatever we said politically, the Karabakh Armenians and Armenian army were united in military actions” (de Waal here at p. 210).

Second, it remains highly doubtful that the NKR had, at any stage, been properly independent – one of the key elements of statehood in modern international law (Crawford here at p. 62). Following the 1994 cease-fire agreement, Karabakh gradually morphed into a part of Armenia. Over the years, the NKR has received critical budget support from Armenian Finance Ministry; the Armenian Dram continued to be Karabakh´s legal tender. Its residents carry Armenian passports (albeit with a special stamp). Armenian conscripts were drafted to defend the occupied buffer zone (see the Chiragov judgment at §§74, 176) and Armenia furnished military advisers, arms and supplies to Karabakh. Its military leaders were seamlessly upgraded to highest ranks in the Armenian armed forces. NKR has prospered as Armenia’s protectorate, siphoning off public goods such as gas and electricity supply, radio frequencies, citizenship, banking services as well as benefits associated with its inclusion in a common customs zone. Overall, the ECtHR concluded that Armenia exercised effective control over NKR through extensive financial, political and military involvement (§186) and considered the territory to remain under Armenian occupation.

The dependency encountered in the NKR can, however, not be fully captured by subsuming it into a category “occupation regime” aimed at protecting an occupied population’s welfare vis-a-vis the occupying State. Karabakh Armenians did not wish to be protected against the occupying State; they embraced it and sought protection against the ousted sovereign. Armenia rather established a protectorate in outright violation of its obligations under the Geneva Convention (IV, Arts. 47, 49). At the end of the day, “belligerent occupation” best described the legal situation, whereas categories like “protectorate” and “de facto annexation”, as the Parliamentary Assembly of the Council of Europe termed it over a decade ago, highlighted the wrongfulness of the situation. As Professor Brownlie stated (here at p. 301), a State cannot avoid responsibility for military occupation “by setting up, or permitting the creation of, forms of local administration however these are designated.”

In any event, the strong dependency on Armenia raises doubts over the NKR’s autonomous capacity of government. At best, the NKR constituted a protectorate created by the use of force in violation of Azerbaijan’s territorial integrity (see Melnyk here at §10, with reference to its quality of a “satellite ‘puppet-State’ or even a de facto Armenian province”). Significantly, the Tripartite Statement of 10 November was entered into by Armenia – and not the NKR – which confirms its dependency on, rather than its independence from, the Republic of Armenia. If there had been any ambiguity as to NKR’s deficient statehood, Armenia clarified it.

This also hints at the answer to the question whether third States should be discouraged from, or encouraged to, recognise the meanwhile amputated ‘Republic of Artsakh’. As the ICJ opined a decade ago, the illegality of an independence declaration would stem from its connection with an unlawful use of force or another egregious violation of legal norms, “in particular those of a peremptory character (ius cogens)” (§81). In so many words, the Court confirmed the general legal principle of ex injuria ius non oritur. Even effective international actors, such as de facto regimes, shall not be recognised if they were created in breach of peremptory norms of international law. The active military intervention by Armenia in the conflict since its very beginning, which was certainly decisive in the establishment of the factual situation until the most recent Tripartite Statement, is one of these breaches. And of course, one cannot just ignore the large-scale expulsion of ethnic Azerbaijanis from the territories that were under Armenian occupation – itself a massive violation of, inter alia, Article 49 of Geneva (IV) which prohibits the forcible transfers of native civilians. The General Assembly expressly confirmed more than a decade ago “that no State shall recognize as lawful the situation resulting from the occupation of the territories of the Republic of Azerbaijan, nor render aid or assistance in maintaining this situation” (§5).

The Question of the Kosovo Precedent

Comparing different factual situations across periods of time is difficult and dangerous. The fact remains that the creation and the existence of a great number of States are the result of more or less consensual secessions (see here at p. 24.). Nobody would dare equate the secession of the United States or of Bangladesh with the purported secession of the NKR. As such, any secession is sui generis and necessarily upsets the established inter-State order. For this reason alone, it is not particularly rewarding to ask today whether the population of Kosovo had a right to establish a new State in 2008, or any better right to accede to independence than the Karabakh Armenians had or still have. Incidentally, not even Serbia submitted this question to the scrutiny of the ICJ, although it sought to widen the scope of the question throughout the advisory proceedings in order to include the salient issue: whether the attempt at creating a new State was in accordance with applicable rules of international law (see, inter alia, here at pp. 120-1). The Republic of Kosovo is an established fact of international life. Kosovo was able to secure a large number of recognitions and has certainly joined the international community of States, albeit with difficulties. It has been, since 2009, a Member State of the organisations of the World Bank, including ICSID, and performs its responsibilities, for instance by defending its position in investor State arbitration proceedings. In 2015, Kosovo joined the 1907 Hague Convention and became a member of the Permanent Court of Arbitration. Moreover, in 2017, a panel of the Court of Arbitration for Sport took the position that Kosovo is a country recognized by the United Nations, i.e., by the member States of the United Nations, as an independent State.

The only legally relevant difference between the aspirations of Kosovars and those of Armenians in Karabakh is rather banal: Kosovo’s secession was successful and resulted in the creation of a new State that effectively and peacefully exercises State functions and assumes responsibilities under international law. The effectiveness of the Kosovo secession is not commanded, encouraged, or prohibited by international law; these are developments are situated outside the realm of law. International law only recognises the effectiveness and the reality of the existence of a new member in the international community of States and draws consequences from that fact. In stark contrast, the so-called NKR has certainly not achieved this effectiveness, independently of the questions of illegality surrounding the declaration of independence or the de facto secession.

The Open Question: Future Status

In one way, the situation in Kosovo in 1999 resembles that of Nagorno-Karabakh in 2020. In both cases, interim regimes were chosen that left the future of the respective territories in limbo. In Kosovo (and this is where the parallel ends), Serbian sovereignty was suspended and the territory submitted to the authority of multilateral institutions vested with administrative prerogatives. The drafters of S/RES/1244/1999 refrained from making binding determinations with regard to Kosovo’s future status, with the “old sovereign” retaining a ius nudum, a “residual” title (see here at pp. 197-203). Similarly, the parties to the trilateral Statement settled on an open-ended operation that shies away from projecting a final status.

The past two months have injected a new dynamic into regional conflict resolution efforts that also saw the OSCE Minsk Group – secretive and beset by atrophy – replaced as the host and driver of diplomatic activity. Triangulating a final status for NK will also have to account for the possible marginalisation of the Security Council, relegating multilateral diplomacy to the back bench. The Trilateral Statement has framed a new reality, quashing hopes for a final status in the near future. The division between Azeri-controlled areas, on the one hand, and the patch of territory that remains under the authority of the self-declared “Republic of Artsakh”, on the other, will be fossilised by Russian armed forces.

Similar to Kosovo, a future status will be conceptionalised along a binary. The first option, clearly at the centre of Azerbaijani charm effort in the years to come, involves the reintegration of the enclave into the parent State in keeping with the full array of internationally guaranteed minority and autonomy rights. This will involve an exercise in delineating the thin grey line between “more than autonomy, less than independence” through meaningful participation of Karabakh Armenians in Azerbaijan’s political institutions (including far-reaching veto rights). Negotiations on these first-level issues, known to anyone familiar with the past work of the U.N. special envoy for Kosovo’s status process (UNOSEK) in Vienna, may focus on devising constitutional provisions that guarantee both the extent of NK’s self-determination entitlements in an integral State and the continued functioning of the government in Stepanakert. Discussions about deep decentralisation are likely to gravitate around issues of education, public utilities, social policy, culture and – more controversially, justice and policing. A parallel track may focus on sharing mechanisms of central income tax revenue and beneficial treatment of financial subsidies from Yerevan to increase municipal financial sustainability. A final track may be devoted to the preservation of cultural and religious heritage, minority rights and property issues should returns take place.

Full independence and statehood for the meanwhile truncated “Republic of Artsakh” through agreement is, as an antithetical option, similarly unlikely to materialise unless Azerbaijan realises that the efforts of including an irredentist population in the parent State outweigh the costs of relinquishing its territorial title. For Baku, the domestic price for such a solution would probably depend on a broader agreement on issues such as regional infrastructure, transport and trade that it could reach with the leadership in Yerevan. This does not mean that NK’s quest for independence through a re-stated argument of remedial secession can be discarded. Its strength will depend on Azerbaijan’s compliance with the ceasefire agreement and whether it will extend to Armenians under its jurisdiction the most basic fundamental rights and autonomy entitlements.

In the medium run, the status quo will be re-frozen under the tutelage of the Russian Federation. In terms of popular legitimacy among both Azerbaijanis and Armenians this will be costly; over the years it will, like in Kosovo, hamper development, deter investment and fuel ethnic entrepreneurship. The task of institution-building after conflict is made more complex in an environment of lasting uncertainty, also given NK’s own severe problems in the sphere of democratic participation, the rule of law and economic governance. A similar scenario of continuing limbo, most aptly described as purgatory, has materialised in Transnistria, a protectorate of, and securitized by, the Russian Federation. Getting from ceasefire to peace will, like on the banks of the Dniester, require the restoration of trust following decades of hostility – the most difficult challenge to overcome before status option can be considered.