Territorial Integrity v. Self-determination over the Nagorno-Karabakh region
A full-scale war over the Nagorno-Karabakh region recently erupted. Armenia and Azerbaijan have conducted hostilities over the region since the dissolution of the Soviet Union. The peace between these states has been from time to time maintained, however, it has never been complete. Armenia claims self-determination for the Armenian population of Nagorno-Karabakh, whereas Azerbaijan defends its territorial integrity.
Nagorno-Karabakh is de jure part of Azerbaijan that fell under control of Armenian forces as a result of occupation. The occupation lasted around 30 years that has recently come to a halt by the Russian brokered ceasefire in November 2020.
The article focuses on these two main principles of international law with respect to Nagorno-Karabakh conflict. The existing legal tools and practice of the international community are to be considered for the claims of both States. Combining theory with international practice we pursue the legal answer. The international community tried to address both issues equally; however, it was and still remains onerous to avoid the opposition of the principles in certain cases. This is a very challenging dilemma, both for international law and political system. Human rights law that mainly addresses the principle of self-determination is under umbrella of international law. The principle of territorial integrity, in the meantime, is referred as the linchpin of the system of international law. It is worth to say that the law has made significant progress, however, there are still issues challenging the international community. No one denies the protection and preservation of the particular group identities. However, the legality of the rights may not be established as a result of the violation of other rights.
The right of self-determination under treaty law and customs
The principle of self-determination dates back to 1918. This date is engraved in history as era of modernization of the political system. The rise of new states and accordingly the grant of independence after dissolution of empires and colonies triggered the League of Nations, the predecessor of the United Nations, to address these principles considering the rights of the post-colonial nations. The self-determination is found in UN Charter, in the 1960 Colonial Declaration and 1970 Friendly Relations and other legal documents, however, it is mostly referred to as a process of decolonization inter alia. The principle was vigorously addressed in the light of the WWI and furthermore with the consequences of WWII. The fate of the post-colonial states was determined in the following way: post-colonial states became independent with the territory they owned during the period of their colonization. Most importantly, both afore-mentioned declarations address the issue as a matter of last resort, when the rights of the peoples are oppressed, or the interests are not sufficiently considered. Nevertheless, the documents stress the importance of the territorial integrity of the states as well.
The only legally binding documents addressing the right of self-determination are International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). The principle of self-determination is framed in the Art. 1 (1) of the ICCPR as following:
“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.
It would be essential to stress that international law does appeal explicitly the ‘peoples’ in this context rather than minority groups. There are many debates regarding the definition of the term itself and the attribution of the rights consequently. Traditionally the term ‘peoples’ is used to refer to the group of people, being distinct due to the ethnical, linguistic and cultural features, however not possessing its national state. The term ‘peoples’ might be attributed, for instance, to the Kurds, who indeed lack their own national or better framing, “Mother State”. Therefore, for the precise attribution of the rights, would be appropriate to distinguish the terms ‘minority’ and ‘peoples’ under laws and practice of international law. Pursuant to United Nations Declaration on the Rights of Minorities, human rights system refers to minority groups as ethnic, religious, cultural, and linguistic groups. There is no widely accepted definition of the minority groups under international law.
The international law designates self-determination both of internal and external character. It would be crucial to state that minority groups have no rights for external self-determination, but an internal one. Only peoples as a group may resort to external self-determination, but the question of legality of such a decision would definitely lead to long debates. However, as practice shows that the international community is often reluctant to endorse the principle to avoid the violation of another core principle, territorial sovereignty. It would be relevant to resort to the particular wording of the legal tools, which may in certain way bring clarity into the attribution of the rights. As a corollary from the Art. 1 of the ICCPR, the peoples may ‘determine their political status’. Openly or covertly, it means that they do have a right for their political determination, whereas the rights of minority groups are confined with the ‘political participation’. Or, as Crawford clarifies, self-determination of such groups in this context, (meaning both peoples and minorities) is implemented through the participation in the governmental system of that state with respect to the territorial sovereignty of the state in question. Art. 27 of ICCPR states:
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”.
The question follows from the above discussed opinio juris: “Do Armenians of Nagorno-Karabakh fall under scope of the term ‘peoples’ according to respective laws?”
Azerbaijan is an ethnically diverse state. The Armenians are considered an ethnic minority group along with Kurds, Talish, Tats, Russians and others in Azerbaijan. Armenians, being settled in another dominant/mother state, are not considered as self-contained people. As flows from the given arguments, the Armenian population of the Nagorno-Karabakh region de jure shall confine to solely the right of internal self-determination.
Right of secession and recognition under international law
The roots of the conflict go back to 20th century. Some pro-Armenian sources state that NKO was handed to Soviet Azerbaijan in the soviet era. It would be relevant to bring some clarity into this issue. All legal documents are subject to interpretation without doubts. However, there is a slight difference between interpretation and paraphrasing of the legal documents. Today, the Armenian community blames Stalinism for “passing” NKO to Azerbaijan, although the wording does not reflect the essence of Stalin’s decision. The document, in contradiction with the Armenian argument, uses the word ‘keeping’. In 1921, Stalin’s fatal decision ‘kept’ NKO within Soviet Azerbaijani borders. Therefore, the Armenian argument is not legally based and hence, it may not justify occupation citing Stalin’s decision.
With the dissolution of the Soviet Union, the Armenians of NKO declared unilateral secession, and accordingly declared independence from Azerbaijan. During the outbreak of the first Karabakh war before the occupation, the Armenians claimed the unification of NK region with Armenia. Theoretically, it is hardly possible, since there are steps to be coherently pursued from the perspective of International Law. It seems that the Armenian officials did not take the regard the lawfulness of such claims. Furthermore, the recognition of NK has been on the top agenda of the Armenian policy recent years. Nevertheless, the recognition of the so-called Artsakh (Nagorno-Karabakh, recently renamed by the Armenians) has never been achieved. Even Armenia has never recognized the independence of the NK republic fearing international condemnation. The steps taken for the implementation of the stated goals have not been rationally considered and legally based leading to confusion and lacking a strong legal argument. The separatist regime has been following direct instructions from the Armenian government being a de facto Armenian entity within Azerbaijan, waiting on the final unification with the maternal state. The support from Armenia was vital to the extend that the existence of the government and inter alia survival would be seriously questioned. It is, therefore, obvious that the question of self-determination of Armenian community of Nagorno-Karabakh enclave does not fulfill the legal requirement.
The demographic feature of the region has been primarily argument to support the occupation. The population of Nagorno-Karabakh is diverse; as is the whole population of Azerbaijan. Armenians were settled in NKO and made up the majority in the autonomous region. The question that follows is: ‘Does a demographic majority justify (illegal) secession?’. Opinio juris regards this issue as a matter of domestic concern.
Demissie referring to Gros Espiell, underlines that the right to secede is not considered as an integral part of the principle of self-determination, rather has attributed this right to peoples under colonial power. Crawford states in his work that the practice does not support the unilateral secession of the group of people or territories within independent state. Secession is an act aimed at separation from a particular state owing the territory and creation of a new state on the part of the territory belonging to that state by the group of people. The effective control over the territory is crucial for the independence of that territory, however, the recognition by other states, and essentially, by the state owner of the territory is pre-condition for the legality of such acts. The practice shows that the states are reluctant to justify the ‘forcible’ secession as well. Regarding Nagorno-Karabakh region, Azerbaijan as a state owner of the NKO has never granted an independence to the region in question. Moreover, the international community is unwilling to support the unilateral secession of a particular part of the independent territories. Such conducts by virtue contradict the principle of non-interference, and hence trigger the violation of the art. 2 (4) of UN Charter. Furthermore, the principle of ad bellum must be discussed in order to analyze the lawfulness or unlawfulness of the use of force against the territorial integrity. The international community, namely UN justifies the use of force once these measures are taken ‘in the exercise of this right of self-defense’.
There are certain issues raising very crucial questions regarding the controversy between intention and behavior of Armenia. It must be clear for international community that Armenia did claim self-determination for the people of Nagorno-Karabakh of the Armenian origin. However, what the last 30 years of occupation has shown is that Armenia laid territorial claims to Azerbaijan under the umbrella of self-determination of Nagorno-Karabakh. What stays confusing from the legal perspective is the reason of occupation of the 7 regions out of NKO if the primary goal was deemed to be only the region in the question. The argument is a buffer zone for the safety of the occupied Nagorno-Karabakh enclave. However, in 30 years of occupation, one of the occupied districts, Kelbajar, was settled in by the Armenians from the different parts of the world, who later on started stating the territory to be ethnical historical Armenian. Well, agitation is very strong tool used by the Armenian diaspora and certainly by the Armenian officials. However, such agitation imposes a huge threat to restoration of the peace and peaceful negotiations overall. The radical statements of the Armenian officials gained a significant popularity among the population. The minister of defense of Armenia recently forged the doctrine of “new war new territories” that indeed reaffirms the occupational policy of the State. Armenia must be held accountable for the threat to peace in the region and moreover, for the aggression against Azerbaijan.
The territorial integrity is considered one of the backbones of the system of international law. Any use of force with the purpose of acquisition of new territories is prohibited under the laws and customs. The art. 2 para. 4 of the UN Charter explicitly states that all members of the UN ‘shall refrain from the threat or use of force against the territorial integrity or political independence of any state.’ The UN Charter is a legally binding document playing the role of a Constitution for the all member states. Shaw states in his work that the article inter alia prohibits the use of force against the territorial sovereignty of any state, referring to 1949 Declaration of the Rights and Duties of the States, which calls upon non-recognition of the acquisition the territories obtained by use of force or other means incompatible with the core principles of International Law. Art. 11 of the Draft Declaration of the Rights and Duties of the States 1949:
“Every state has the duty to refrain from recognizing any territorial acquisition by another state in violation of article 9.”
The legal power of UN Security Council has never been under question. There is list of UN Security Council Resolutions (822, 853, 874, 884) calling upon Armenia to withdraw its troops from the occupied Azerbaijani territories. The decisions of UN SC are legally binding upon all members of UN. Art. 25 of the present Charter stays that ‘the Member of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. Furthermore, the resolutions of the Council are empowered to create new international obligations binding upon all State members of UN. These 4 UN SC Resolutions for Nagorno-Karabakh have never been fulfilled by Armenia. Such disregard to the laws by Armenia as a member of UN is unacceptable and triggers legal consequence for Armenia.
As a consequence, Armenia is in breach of the article 2 (4) of UN Charter for resorting to prohibition of use of force against territorial integrity of Azerbaijan and therefore, the acquisition of the occupied territories, streamed from the unlawful conduct, may not be recognized. The UN endorses the member states not to recognize the independence of the states created on the territory or part of the occupied territory. The conquest of the territory of another state is inadmissible, and moreover the use of force as a method of acquiring the territory in not invalid under the respective laws and customs.
The remedial secession
The territorial integrity has always been jeopardizing the recognition of secession. The history of international law, however, has witnessed the support of States and UN in favor of secession. It is well known that recognition is a matter of political will or better expressing the preference the states. The States are legal concepts. No States would indeed support the separation of the territories and therefore, any succession deemed to be peripheral. As stated above, the external self-determination of minorities might be a question of last resort. International law does not force any minority groups to remain under the government of that State, if that group of people are subject to maltreatment. The vivid example is the secession of Kosovo, predominantly settled by ethnic Albanians, from Yugoslav State with the hand of the UN SC. The Kosovo case is considered ultima ratio. The remedial secession in this case is observed as a last resort, after all measures to restore the rights of peoples or minorities, has been exhausted or has failed. One may raise the following question: “What would authorize the UN SC to intervene?” The major principle of the Security Council is to maintain peace and security and to prevent any threat to peace and aggression against the member of the UN. Yet, the recognition of Kosovo as an independent state has indeed invoked the hope for de jure statehood for other separatist regimes. Nevertheless, it is crucial to investigate the facts on the grounds and regard each case individually.
The analysis of the existing laws and practice above has assured that the territorial integrity of Azerbaijan has prevailed with regards to the external self-determination of the Nagorno-Karabakh region. The Armenians, as a minority group within Azerbaijan, do not qualify to be classified as a group of “peoples”, to whom the rights of external self-determination might be legally attributed. Instead, the Armenians have a right along with other minority groups to exercise their cultural, religious, and linguistic rights and certainly, political participation under the domestic law of Azerbaijan.
The principle of remedial secession has not been justified under the laws; otherwise the four UN SC Resolutions for Nagorno-Karabakh would have never been adopted. This article reaffirmed that the SC acting under Chapter VII of the Charter may intervene and support the secession in case of systematic human rights violations. The maltreatment of the minority group within Azerbaijani community, as such, has never been assured. Therefore, the maltreatment of the Armenian community of Karabakh as well as the Azerbaijan in whole before the occupation has never been challenged. The remedial secession as a means of last resort is inadmissible and hence may not be invoked for the external self-determination of the NKO.
Most importantly, the use of force against the territorial integrity of Azerbaijan by the Armenian forces is not justified. The principle of Ex injura jus non oritur is one of fundamental principle of jurisprudence. It literally means that no legal rights can be derived from an illegal act. Applying the case of occupation, which, as mentioned before, was primary aimed at the external self-determination of NK region. However, it turns out to be aimed at gaining more territories instead. A Member State of the UN upon signing the Charter must respect the fundamental principles of international law and must abide by its obligation under the laws.
The recognition of the rights over territory may in no way be valid simply for the reason of the method of acquisition, namely the acquisition derived from the use of force or threat to use of force. Such recognition would be against the ethical norms of international law that emphasizes the inadmissibility of the results derived from illegal acts. The assessment of the treaty law and customs reaffirmed the position of the principle of self-determination. The claims put forward by the Armenian community have failed from the legal perspective. The Armenian community as minority group as such does not fulfill the requirement to be attributed the right for external self-determination. The international practice has restricted the attribution of these rights to “peoples” and only as a means of last resort. Hereto, the territorial integrity of the State prevailed, as in many cases, over the principle of self-determination. The claims for secession are inadmissible and not legally justified.
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