Editor’s note: This is a response to an earlier article (“Law Is On Armenia’s Side in Nagorno-Karabakh”) published last week.

In the past thirty years, the fundamental public international law principles have been put to test in “Europe’s longest conflict” between Armenia and Azerbaijan: territorial integrity, self-determination, and use of force in self-defense. Following the so-called “44-Day War” in 2020, Azerbaijan and Armenia continue several legal battles before the International Court of Justice and the European Court of Human Rights, under CERD and European Convention on Human Rights, respectively. However, there are still a lot of misunderstandings or misinterpretations of the relevant principles of international applicable to this conflict.

The conflict is over by Armenia’s territorial claim to Upper Karabakh (Nagorno-Karabakh), Azerbaijan’s province populated by a majority of ethnic Armenians, based on historical and ethnic arguments. A devastating war in the early 1990s resulted in Armenia’s military victory and occupation of Upper Karabakh and adjacent seven districts, home to almost 750,000 Azerbaijanis who were forced to flee. Following this occupation (known as “the Occupied Territories” in Azerbaijan), Armenia created the so-called “Nagorno-Karabakh Republic” in these territories to create a basis of international legitimacy and then annex these territories to Armenia proper. Almost a million ethnic Azerbaijanis were expelled from these territories and their property, civilian infrastructure, and cultural heritage were either looted or transferred to Armenia. The United Nations estimated the economic damage due to Armenia’s occupation at approximately $53.5 billion.

In 2020, Azerbaijan liberated most of these territories from Armenia’s occupation, except for parts of its Karabakh region, now temporarily stationed by a Russian peacekeeping force under an Armistice Agreement signed on November 10, 2020. 

The involved parties’ political, historical, and legal positions in this international armed conflict remain consistent. Azerbaijan’s position is that Karabakh is its integral territorial part, and the international community should not recognize Armenia’s occupation in the form of “Nagorno-Karabakh Republic” illegally created in its sovereign territory. Armenia’s historical-legal argument is that Karabakh was a part of the ancient Armenian kingdom, and the Armenian ethnic minority in Karabakh shall have the right to become independent and merge with Armenia based on the principle of self-determination or remedial secession. However, Azerbaijan views the declaration of an unrecognized “Nagorno-Karabakh Republic” in its territory as Armenia’s attempt to annex Karabakh under the pretext of self-determination.

Creation of Nagorno-Karabakh in Azerbaijan

A key hotly-debated historical-legal document in this conflict is the decision of the Caucasian Bureau, a regional body of the Central Committee of the Russian Communist Party for the Caucasus, adopted on July 5, 1921, confirming the belonging of Nagorno-Karabakh to Azerbaijan. This document is often invoked to argue that “Stalin gave Karabakh to Azerbaijan.” Nothing can be further from the truth. The Bureau’s decision stated that due to the necessity of peace between Muslims (Azerbaijanis) and Armenians and economic ties between lowland and highland regions of historic Karabakh, and the permanent ties between Karabakh and Azerbaijan, “mountainous Karabakh shall remain within the borders of the Azerbaijan SSR.” This was a reconfirmation of the existing territorial divisions in Azerbaijan rather than a reorganization of territorial units between Armenia and Azerbaijan. In this sense, Karabakh was not “granted,” “given,” “attached,” or “placed” in Azerbaijan. Under international law, there has never been legal discontinuity of Karabakh’s belonging to Azerbaijan during the existence of its legal predecessors of the Azerbaijan Democratic Republic in 1918, and the Azerbaijan Soviet Socialist Republic (SSR) in 1920, and its modern republic declared in 1991. 

Notably, granting minorities higher self-governance should be seen in the context of the Soviet minority policy in the early 1920s. The Soviet ideal of socialism was high local governance, and its decentralization policy aimed at granting autonomy to minority groups through organizing local self-government institutions based on ethnic characteristics. Consequently, the Soviets organized twenty-six “autonomous districts” based on local national (ethnic) characteristics. For example, the Russian SSR Constitution of 1918 (Article 11), the USSR’s Stalin Constitution of 1936, and the Brejnev Constitution of 1977 all granted extensive economic, cultural, social, and legal rights to local governments of “autonomous districts.”

The Constitution of Azerbaijan SSR (Article 80) and the Law of Azerbaijan on the Status of Nagorno-Karabakh district (Article 11), granted extensive powers to the Nagorno-Karabakh district, over areas such as judicial, political powers, education, land distribution, local industries, finance, economic planning, organization of defense works. and local elections. The Soviet constitutions and laws of Azerbaijan SSR did not grant Nagorno-Karabakh district to declare independence or merge with Armenia. Such local governments were authorized to decide matters only within their specific delegated powers. The central governments in Baku and Moscow, in turn, notably had the right to abolish or suspend any decision of its Nagorno-Karabakh district. 

Principle of Territorial Integrity and Military Occupation

According to the principle of territorial integrity—the essence of modern nation-states and international relations system—the territory of one state cannot be acquired by force by another State. It prohibits direct or indirect military occupation under any justification.

Since 1991, the reality on the ground was that this principle was gravely and consistently breached in this conflict. Since the 1991–1994 war, Armenia’s military occupation has been unequivocally established, among others, by the United Nations Security Council’s resolutions 822, 853, 874, and 884, along with the UN General Assembly, the Council of Europe, the European Parliament, and other international organizations. On top of this, in 2015, the European Court of Human Rights, in the landmark case of Chiragov and Others v. Armenia, confirmed Armenia’s military occupation of Azerbaijan and responsibility for massive human rights violations in the Occupied Territories.

In other words, both the international community and international law have been consistently clear: Nagorno-Karabakh is Azerbaijani territory.

Currently, the reality on the ground is that Armenia’s occupation of parts of Karabakh continues. While the Armistice Agreement envisages the “withdrawal of Armenian armed forces” (Article 4), this process is incomplete. According to the International Crises Group’s report, there are still 12,000 Armenian soldiers in Karabakh. Accordingly, despite the significant territorial reduction of Armenia’s control over the previously Occupied Territories, it still continues to occupy parts of Karabakh through the unrecognized “Nagorno-Karabakh Republic” in breach of international law and the Security Council’s resolution 822, which remain unaddressed by the United Nations. Armenia’s refusal to waive its territorial claims to Karabakh remains a crucial violation of Azerbaijan’s territorial integrity. 

Self-determination and Right of Secession of Minority Group 

The Armenia-Azerbaijan conflict is not the only one where these principles were put to test in the post-Soviet space. The “constitutions” of unrecognized separatist entities of Crimea, Nagorno-Karabakh, South Ossetia, Abkhazia, and Transnistria all refer to the principle of “self-determination” as the basis of their declared independence or unification with another state. Interestingly, the Declaration of Independence of the Autonomous Republic of Crimea and the city of Sevastopol adopted on March 11, 2014 even invokes the International Court of Justice’s Kosovo decision and the fact that the declaration of independence seceding from the territory does not violate any norms of international law.

However, the reality is that the principle of self-determination only applies to “peoples” under colonial rule under public international law. The recent constitutional experience of advanced democracies such as Canada, Spain, Italy, and Germany, which dealt with secession movements in their territories, represents a modern understanding of secession and self-determination. For instance, in 1998 Canada’s Supreme Court in a landmark Quebec secession case, stated that the right to secede was meant for “peoples” under a “colonial rule or foreign occupation,” and self-determination should be exercised within the framework of existing states through democratic means to prevent threats to a state’s territorial integrity or the stability of relations between states. In 2014, in respect of a unilateral referendum in Veneto, the Constitutional Court of Italy ruled the independence referendum out as contrary to the Constitution for the above similar reason. In 2017 the Federal Constitutional Court of Germany, in respect of a proposed referendum on Bavaria’s exit from the Federal Republic of Germany, stated that there is no room for secession efforts by individual states under the German Constitution and shut down hopes for a breakaway Bavaria. In 2017, at the height of the Catalonia crisis, the Constitutional Court of Spain declared unconstitutional a law passed by the regional Parliament of Catalonia calling for a referendum on self-determination and evoked the principle of the territorial and political unity of Spain, among others. The European Union supported Spain’s legal position. 

Under international law, self-determination has a specific and delineated meaning and does not apply to minorities. In this context, the right of self-determination in this conflict would only apply to the “Armenian people” in Armenia proper to declare and fulfill its republic. The Armenian ethnic minority in Karabakh is not a separate people from Azerbaijan and Armenia. Under international law, ethnic Armenians in Karabakh, the third-largest minority group in Azerbaijan, constitute a part of the “people of Azerbaijan” rather than a separate people. Only the people of Azerbaijan, as a whole, has the right to self-determination, which it exercised in 1991 to become independent from the Soviet Union. 

Misunderstanding the “Kosovo precedent”

Armenia also links the Kosovo case and the Karabakh case by creating a legitimacy framework for recognition of Karabakh independence or a merger with Armenia. However, the Kosovo case did not involve remedial secession or self-determination but a declaration of independence in the Serbian province of Kosovo by the majority ethnic Albanian population. In this case, the International Court of Justice referred to Southern Rhodesia, Cyprus, and the Republika Srpska cases put a principled limitation on the declaration of independence of a constituent part of modern states. It noted that unilateral and non-consensual declarations of independence may be in breach of general international rules where such declaration is connected with the unlawful use of force or other egregious violations of norms of general international law. This means that if a declaration of independence is accompanied by military occupation, the commission of international crimes, such declarations are not legitimate or allowed under international norms. In fact, these transgressions happened in the Armenia-Azerbaijan conflict, which makes the application of the ‘Kosovo precedent’ fundamentally inapplicable to this case. 

In light of the International Court of Justice’s exceptions, the key differences between the Kosovo case and the Karabakh case are that unlike Armenia’s occupation of Karabakh and adjacent districts: there was no Bosnian military occupation of Kosovo, or a massacre of the local Serbian residents in Kosovo similar to the Kojali genocide in 1992. Additionally, the independence and merger process of Karabakh to Armenia was accompanied by a massive violation of the human rights of almost a million Azerbaijanis, including their ethnic cleansing from the Occupied Territories. These transgressions made the declaration of independence in Karabakh invalid under international law.

The declaration of the “Nagorno-Karabakh Republic” in the territory of Azerbaijan by using force does not meet the recognition and statehood conditions, as required by the Montevideo Convention. This entity is fictional, without any legitimate territory, economic, military, political, or financial independence. In the post-war period, for instance, Armenia’s annual support dramatically increased, providing up to $300 million to the local regime’s operations in Karabakh, an increase of 50 percent compared to the pre-2020 era. It pays for salaries, pensions, utilities, infrastructure, local programs, and the military. It is an entity completely dependent on Armenia in all material respects. It is very similar to Russian entities—namely, the so-called “Donetsk People’s Republic” and “Luhansk People’s Republic” in the occupied parts of Ukraine. For all intent and purpose, the so-called “Nagorno-Karabakh Republic” is an extension of the state of Armenia in the territory of Azerbaijan, which bars any international recognition by virtue of the fact of military occupation. 

Abusing the principle of self-determination for territorial expansion is one of the key factors fueling the post-Soviet space. The international community did not view the secession movements in Crimea, Catalonia, and Kurdistan positively. The Azerbaijani case is no exception; international law does not recognize any exceptions to the territorial integrity of Azerbaijan.  

Solution: Minority Rights and Compliance Mechanisms

The reality is that neither developed nor developing states today recognize the right of an ethnic group to declare independence in its territory or merge with a neighboring state. There is no emerging customary international law to support claims for self-determination or remedial secession based on historical or ethnic arguments. On the contrary, there is a global trend toward dealing with such issues within the framework of evolving minority rights protection mechanisms. 

The rights of ethnic Armenians in Karabakh shall be addressed within the rules of minority protection under international law rather than in terms of statehood. The current framework for the protection of national minorities stipulates extensive cultural, language, educational, and related rights for minorities short of secession rights. For example, the Council of Europe’s Framework Convention for the Protection of National Minorities, which both Azerbaijan and Armenia ratified, obliges signatories to respect the rights of national minorities, undertaking to combat discrimination, promote equality, preserve and develop the culture, language, and identity of national minorities, etc. If there are allegations about discrimination or breach of minority rights, there are available legal means or group action, including the right to refer complaints to the European Court of Human Rights or monitoring bodies for specific conventions. The UN minority rights framework provides another platform for the protection of national minorities, which provides extensive minority rights, reporting, and compliance mechanisms. The ethnic Armenian minority in Karabakh will be able to use such extensive minority rights granted by international law and Azerbaijan’s commitments. There is no reasonable basis to claim that Azerbaijan will not be able to fulfill its minority protection obligations under international law with regard to its ethnic Armenian citizens. The international community should give it a try. 

Nurlan Mustafayev is an international law practitioner and a lecturer on public international law at Azerbaijan Diplomatic Academy.

Image: Reuters.