The Recent Ceasefire in Nagorno-Karabakh: Territorial Control, Peacekeepers and Question of Status

The nine-point ceasefire agreement signed by the president of Azerbaijan, the prime minister of Armenia and the president of the Russian Federation on 9 November 2020 ended 44 days of hostilities that claimed more than 5000 lives. It also transformed the status quo existing in the South Caucasus since the 1994 Bishkek Ceasefire Agreement, which ended the first Nagorno-Karabakh War (1992-1994).  

While the previous posts on this website and elsewhere analysed questions regarding the status and legal claims concerning Nagorno-Karabakh and the legality of the use of force (here, here and here), this blog focuses on some of the key terms of the ceasefire deal and their implication for various legal issues arising from this long-standing conflict.

Territories Dealt With by the Ceasefire Agreement

Since the end of the first Nagorno-Karabakh War, Armenia-backed separatists controlled internationally recognised territories of Azerbaijan, which include Nagorno-Karabakh itself, i.e. the territory of the former autonomous region of Nagorno-Karabakh (NKAO) within the former Azerbaijan Soviet Socialist Republic (SSR); and seven Azerbaijani districts surrounding Nagorno-Karabakh: Kalbajar, Lachin, Qubadli, Zangilan, Jabrayil, Fuzuli, Agdam.  

Under the new deal, this status quo is completely transformed. Firstly, Azerbaijan regains control of all seven districts around Nagorno-Karabakh. This includes districts that had already been captured by Azerbaijan during the conflict and three districts held by Armenia at the time of ceasefire – Lachin, Kalbajar and Agdam. Armenia returned the Kalbajar district to Azerbaijan on 25 November 2020 (the original deadline was extended by 10 days) and the Agdam district on 20 November 2020. The Lachin district was handed over to Azerbaijan on 1 December 2020.

Secondly, Azerbaijan now also controls parts of Nagorno-Karabakh itself, including the strategically important city of Shusha, which it gained during the hostilities. Thus, a new line of contact now runs through Nagorno-Karabakh itself.

However, the core of Nagorno-Karabakh, including the capital of Stepanakert, remains under the control of Armenia-backed separatists.

After the handover of those surrounding districts to Azerbaijan, Nagorno-Karabakh is essentially cut off from Armenia, save for the Lachin corridor. Under the deal, this is a 5 km-wide corridor under the control of Russian peacekeepers connecting Armenia and Nagorno-Karabakh (through the Lachin district which is now under Azerbaijan’s control), but bypassing Shusha. Under the agreement, Azerbaijan guarantees “the security of persons, vehicles and cargo” moving along the corridor in both ways. The agreement also foresees a plan within three years to build a route alongside the corridor; it will also be under the control of Russian peacekeepers.

The ceasefire deal provides for unblocking economic and transport connections, even including the construction of new roads through Armenia linking the Nakhichevan autonomous republic (which is Azerbaijan’s exclave bordering Armenia, Iran and Turkey) with the western regions of Azerbaijan. Russian border guards will oversee these transport connections. Previously, Nakhichevan was linked with Azerbaijan through Iran.

The administrative delimitation of districts (used as the basis for their return to Azerbaijan and for the deployment of peacekeepers) essentially follows the pre-1991 Soviet division.

Even though the ceasefire freezes Azerbaijan’s military gains and foresees significant shifting of territorial control from Armenia to Azerbaijan, neither of these changes concerns the transfer of sovereignty. Under international law, territories captured by or handed over to Azerbaijan belong to the Republic of Azerbaijan (see for example “the Nagorny Karabakh region of the Azerbaijani Republic” UNSC Res 853 (1993), para. 9; similarly, UNGA Res 62/243, para. 4).

Russian Peacekeepers in Nagorno-Karabakh

The ceasefire agreement also provides for the deployment of Russian peacekeepers along the line of contact in Nagorno-Karabakh and the Lachin corridor. The deal is rather specific in that it foresees the deployment of “1960 troops armed with firearms, 90 armoured vehicles and 380 motor vehicles and units of special equipment”.

The deployment of the Russian peacekeepers is an unprecedented development. Never before was Russia militarily present in this conflict. In fact, no peacekeepers have ever been deployed in it.

The distance between Shusha – now in Azerbaijan’s hands – and Stepanakert is just 10 km. The presence of the peacekeepers is thus seen as a vital guarantee against the re-eruption of hostilities.

It is worth noting that the EU-Fact Finding Mission on the 2008 Georgia-Russia War considered that the Georgian attack on Russian peacekeepers stationed in South Ossetia under the 1992 Sochi Agreement could constitute an armed attack in the sense of Article 51 of the United Nations Charter (here, pp 264-269; see for the criticism of the analysis of the existence of the Georgian attack here, pp 16-17; for the criticism of viewing the Russian peacekeepers in South Ossetia as ‘State instrumentalities’ here, pp 17-20).

While there were some speculations regarding the presence of Turkish troops as peacekeepers, this is not foreseen by the deal itself. However, Vladimir Putin recently confirmed that Turkey would take part in monitoring the ceasefire through a joint centre located on Azerbaijan’s sovereign territory.

The duration of the presence of the Russian peacekeeping contingent is five years, with an automatic extension for five-year periods if none of the parties declares its intention to terminate it six months before the end of the current period.

Final Status of Nagorno-Karabakh

Nagorno-Karabakh claims to be an independent State. No United Nations (UN) Member State, including Armenia, has ever recognised it as such. As mentioned, under international law, this territory belongs to Azerbaijan.

The question of Nagorno-Karabakh’s status has been at the core of the existing conflict. The OSCE Minsk Group, co-chaired by Russia, France and the United States, has been the key forum for the negotiation of the settlement of the conflict. The 2007 Madrid Principles – the legal and political framework for the settlement of the dispute within the Minsk Group process – foresaw inter alia “future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will.”

Following the end of hostilities, it could be expected that the parts of Nagorno-Karabakh captured by Azerbaijan will be integrated into the Republic of Azerbaijan.

The status of Nagorno-Karabakh is not mentioned once in the ceasefire agreement, nor is the OSCE Minsk Group mentioned. With hostilities concluded, the so-called “Republic of Artsakh” seems to continue to operate de facto, albeit within a more limited territory.

Despite this glaring gap in the agreement, one matter seems clear. The war has further exposed the dependence of Nagorno-Karabakh on Armenia. Moreover, the deal itself was signed exclusively in an inter-State format. This seems to further undermine claims of the existence of an independent State made by separatists.

France has recently urged that the text of the ceasefire be clarified, including a plan to discuss the future status of the region. In response, the Russian president has stated, “[y]es, there is this problem, since Karabakh’s final status has not been settled. We have agreed to maintain the status quo. What happens next will be decided eventually by the future leaders and the future participants in this process.”

In fact, within the four and a half years either of the parties may end the presence of the Russian peacekeepers – this timeframe might possibly offer an impetus for a reassessment of the situation, including the remaining issue of final status.

Armenia’s Occupation and Effective Control

According to the European Court of Human Rights (ECtHR), Armenia exercised effective control over the territory of Nagorno-Karabakh and surrounding districts (Chiragov, para. 186). In 1993, the United Nations Security Council demanded the withdrawal of all occupying forces from the Kalbajar, Agdam and Zangilan districts and other recently occupied areas of Azerbaijan (UNSC Res 822 (1993), para. 1; UNSC Res 853 (1993), para. 3; UNSC Res 874 (1993), para. 5; UNSC Res 884 (1993), para. 4). In 2008, the United Nations General Assembly demanded the “withdrawal of all Armenian forces from all the occupied territories of the Republic of Azerbaijan” (UNGA Res 62/243, para. 2). The doctrine saw Nagorno-Karabakh itself as occupied by Armenia (see also here).

Under the new ceasefire agreement, the basis for this legal assessment changes. The Russian peacekeepers are being deployed concurrently with the withdrawal of Armenian armed forces. This presumes the withdrawal of the regular Armenian armed forces not only from the Lachin, Kalbajar and Agdam districts – the territories to be returned to Azerbaijan – but also from the core of Nagorno-Karabakh itself. According to Interfax, the Russian peacekeepers started their deployment to Nagorno-Karabakh in parallel with the withdrawal of Armenian armed forces, on 10 November 2020.

As to the seven surrounding districts and the parts of Nagorno-Karabakh now under Azerbaijan’s control, they will be reintegrated into the Republic of Azerbaijan. Thereby, they will fall within Azerbaijan’s jurisdiction under Article 1 of the European Convention on Human Rights. A fortiori, they could no longer be qualified as occupied by Armenia.

However, with respect to the remaining parts of Nagorno-Karabakh itself, the factual situation is much more complex. One of several factual elements taken into account by the ECtHR when establishing Armenia’s effective control over Nagorno-Karabakh was the military presence of the Armenian troops there (even though it did not determine their exact number, see Chiragov, para. 180). Apart from this, all new factual realities in Nagorno-Karabakh will require a reassessment of the existence of Armenia’s effective control.

Even more complicated is the question of whether the territory of Nagorno-Karabakh could be considered to be occupied by Armenia. Without the presence of Armenian “boots on the ground”, the issue of occupation by proxy comes into question. This would require establishing that Armenia exercises overall control over the armed groups of Nagorno-Karabakh, which in turn exercise effective control over the territory.

On the ground, the governing apparatuses of the so-called “Republic of Artsakh”, including its Ministry of Defense, continue to operate. Previously, the ECtHR held that the armed forces of Armenia and the Nagorno-Karabakh were “highly integrated” (Chiragov, para. 180).

On the one hand, taking into account this previous situation, it could be expected that Armenia’s influence will aim to be significant. On the other hand, factually, Nagorno-Karabakh is cut off from Armenia (and the Russian peacekeepers are deployed along the line of contact) – as pointed out by commentators, it is difficult to see how Armenia would be able to send military equipment to Nagorno-Karabakh through the Lachin corridor, as it is located on Azerbaijan’s territory under the control of Russian peacekeepers.

Conclusion

 While the ceasefire agreement of 9 November 2020 ended hostilities and provided a legal basis for changes in territorial control, the deployment of peacekeepers and the return of refugees and IDPs, the key issue – the final status of Nagorno-Karabakh – was left out. Thereby, a new status quo was established there. Whether it will exist beyond the first five-year term of the Russian peacekeeper mission is yet to be seen.