The Importance Of International Law In Nagorno-Karabakh Conflict

KEY POINTS The separatists of Nagorno-Karabakh cannot claim the mantle of democracy when they have

KEY POINTS

  • The separatists of Nagorno-Karabakh cannot claim the mantle of democracy when they have none. Elections – such as they have been conducted in the territory – have not been supported or recognized by the international community.
  • Though the occupied territories are today largely ethnically Armenian, this was achieved by force, in recent decades, after close to one million Azerbaijanis were ejected from their homes and who now live as Internally Displaced Persons (IDPs) across Azerbaijan. 
  • A decisive ethnic majority, especially one decisively secured through war is not a justification for statehood. Neither is there any requirement under international law for the occupied territories to be recognized as an independent state in order to protect based on ethnicity, heritage and religion.

In the last two weeks, war in the Caucasus has reached our television screens and is alarming the world. There is real concern that this conflict may escalate with the war between Armenia and Azerbaijan drawing in more heavily armed regional powers. A temporary ceasefire only just agreed appears to have already been broken, and a lasting solution remains elusive. 

To understand this unfolding disaster, it is imperative to consider the legal and policy arguments marshaled by the two sides. They boil down to this: do the claims of self-determination in respect of Nagorno Karabakh trump the legal ownership and territorial integrity of Azerbaijan? 

Today, ethnic Armenian separatists control Nagorno Karabakh – recognized under international law as being within Azerbaijan’s borders – along with further Azerbaijani territory surrounding and connecting Nagorno Karabakh by land to Armenia. The separatists call these occupied territories the “Republic of Artsakh”: yet even Armenia has stopped short of recognizing this “republic” well aware that to do so would contradict established international law. Recognition has only come from a tiny clutch of similarly minded separatist groupings including the self-styled republics of Transnistria, South Ossetia, and Abkhazia. The only more puzzling recognition has come from the Government of New South Wales, a move so embarrassing to Australia that the country’s Foreign Minister felt obliged to take the unusual step of publicly reaffirming that it stands by Azerbaijan’s full territorial integrity. 

Not a single UN Member State legally recognizes these lands as anything other than an integral part of Azerbaijan. And international institutions from the United Nations to the Council of Europe, the European Union and the Organization for Security and Cooperation in Europe have all adopted the same position.

To attempt to counter this international legal lock, those who support separation raise democracy and the right to self-determination. They say this is a case of a people seeking to rule themselves, to protect their culture and human rights. They argue that “Artsakh” is ethnically Armenian and underpinned by democracy. Facing them is an “invader” of their historic lands who threatens their heritage and people-led government. It may for some make for a fine sounding, “moral” argument even: but it is unfounded when held against both international law and historical and modern-day fact. 

Firstly, the separatists of Nagorno-Karabakh cannot claim the mantle of democracy when they have none. Elections – such as they have been conducted in the territory – have not been supported or recognised by the international community. Indeed, they have been denounced by the Council of Europe in its finding that “these so-called ‘elections’ cannot be legitimate”, and by the EU’s High Representative for Foreign and Security Policy who stated that the European Union “does not recognise the constitutional and legal framework” for Nagorno-Karabakh’s “parliamentary elections”. 

Secondly, though the occupied territories are today largely ethnically Armenian, this was achieved by force, in recent decades, after close to one million Azerbaijanis were ejected from their homes and who now live as Internally Displaced Persons (IDPs) across Azerbaijan. After the 1988-94 Armenian-Azerbaijan conflict when the territories came under the control of the separatists that further Armenians were then resettled there from Armenia itself. 

Thirdly, a decisive ethnic majority, especially one decisively secured through war is not a justification for statehood. Neither is there any requirement under international law for the occupied territories to be recognized as an independent state in order to protect based on ethnicity, heritage and religion. Such protections exist under the national laws of Azerbaijan and its international human rights obligations including the European Convention on Human Rights. There is no legal basis for creating what would amount to a second Armenian state within Azerbaijan.

There remains a single, lasting solution to the conflict: it is for those Azerbaijanis who were displaced in the 1988-94 conflict to be allowed to return to their homes as is their lawful right and, together with ethnic Armenians to find a way to live there together as part of the territory of Azerbaijan. Essential for doing so will be to strip away the distortions that surround the “territorial integrity versus self-determination” debate, and to understand both the applicable international law and the factual realities. 

Integration may be hard to achieve. But it is vital to uphold international law and human rights standards and for an enduring peace.

Rodney Dixon QC is a leading international lawyer, specializing in public international law and human rights. He practices as a barrister at Temple Garden Chambers, London and The Hague.

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