The Karabakh Armistice: Between the Principle of Territorial Integrity and Peoples’ Right to Self-Determination

On 9 November 2020, at 9 pm GMT, the heads of state of Azerbaijan and Russia and the Prime Minister of Armenia signed an armistice that ended a month-long counter-offensive and possibly a roughly 28-year-long conflict. The status quo ante consisted of the occupation of an area encompassing the former (Armenian-majority) autonomous province (oblast) of Karabakh and seven formerly Azeri-majority districts surrounding said province by Armenian military forces, which had also established the so-called “Republic of Artsakh” in the occupied territories – an entity that is not recognised by any UN Member State, including Armenia. The territorial changes envisaged in the armistice alter the context drastically, with the restitution of the seven formerly Azeri-majority districts and parts of Karabakh proper, including the second largest town of the province, Shusha, to Azerbaijan. The capital of the formerly autonomous province, Stepanakert, however, remains under the Armenian administration despite the withdrawal of Armenian troops from most of the formerly occupied areas and their replacement with Russian peacekeepers.

The territorial integrity of sovereign states is a cardinal principle of international law enshrined in Article 2(4) of the UN Charter in addition to being recognised as a rule of customary international law. In the case at hand, it was already apparent to the UN Security Council (UNSC) back in 1993 that Azerbaijan’s territorial integrity had been violated. On the other side of the scales stands another rule of customary international law, namely peoples’ right to self-determination which, in this case, has been used to refer to “remedial self-determination” or “the right to secede”. While “the right to secede” was recognised with a limited scope (i.e. granted exclusively to Union Republics) in the Soviet Constitution of 1977, it hasn’t been inherent in the public international law notion of “peoples’ right to self-determination”. Indeed, even the much cited Advisory Opinion of the ICJ on Kosovo’s declaration of independence clearly refrained from addressing whether Kosovar people’s right to self-determination constituted per se the right to secede, instead focusing solely on the question of the legality of Kosovo’s declaration of independence.

Nonetheless, according to some scholars, Azerbaijan’s insistence on reclaiming what is internationally recognised Azerbaijani territory constitutes an “aggression” and some have even associated it with achieving a “final solution” to Armenian existence. Aside from this clearly confrontational and unsubstantiated rhetoric, the Karabakh Armistice provides fertile ground to discuss which aspect of international law should have precedence for peaceful relations among nations in non-colonial contexts and how conflict resolution will take place in the near future. Yet, first and foremost, we ought to answer the question:

Was Azerbaijan’s counter-offensive legal in the strict sense?

The short answer to that question is: Yes, it was. As alluded to in the previous passages, in four unanimously voted resolutions, the UNSC had established during the conflict in 1990 that Azerbaijani territory was “occupied” and had demanded that “occupying forces” withdraw from the seven formerly Azeri-majority districts where acts of ethnic cleansing against Azeris and Kurds had paved the way for Armenian settlement. A similar position was also taken by the UN General Assembly in 2008 and the Parliamentary Assembly of the Council of Europe in 2005, thereby consolidating the view that there had indeed been a violation of Azerbaijan’s territorial integrity.

Consequentially, it is safe to state in prima facie that Azerbaijan had the right to invoke Article 51 of the UN Charter and launch a counter-offensive in order to reclaim occupied territory under the pretext of “self-defence”. A rebuttal in that regard that has been voiced at times by representatives of Armenia before the European Court of Human Rights (ECtHR) is that ethnic Armenian troops in Karabakh were largely unaffiliated with Armenia –  an argument aiming to avoid the widely accepted definition of “military occupation” under international law. This, however, contradicts the findings of, among others, Human Rights Watch, Uppsala University, and the International Institute for Strategic Studies. Furthermore, at the current juncture, it is evident that Armenia admitted to being in control of the ethnic Armenian troops in Azerbaijani territory by signing the Karabakh Armistice which envisions an immediate ceasefire between the two parties.

Thus, the scenario that emerges from these facts is that the conflict in question was, in fact, an international armed conflict, the presence of the Armenian military did meet the “boots on the ground” threshold and Azerbaijan had the right to react militarily to preserve its territorial integrity. The question that subsequently arises is, therefore:

Peoples’ right to self-determination: Is there really a conflict with territorial integrity in the case of Karabakh?

One peculiar argument that circumvented the established principle of territorial integrity has been Azerbaijan’s alleged violation of the right to self-determination of the Armenians of Karabakh, which has been supplemented with the question as to whether the conflict in the early 1990s had erupted due to Azerbaijan denying the Armenians of Karabakh the right to self-determination.

It must be underlined that Azerbaijan made no attempt at revoking the autonomous status of the province until clashes between pro-Armenian and pro-Azerbaijani militia in Karabakh, which had already begun prior to independence, intensified with the dissolution of the Soviet Union and direct involvement of Armenia in the conflict. It was therefore during the international armed conflict, which had begun immediately after both states had seceded from the USSR, that the Azerbaijani Parliament, citing the “lack of autonomy” of “half a million” Azeris living in Armenia, decided to rescind Karabakh’s autonomy.

Nonetheless, it would be far-fetched to argue solely on this basis that the decision ipso facto constituted a violation of Karabakh’s right to self-determination. Further, regarding an almost analogous display of the “use of force”, when the Turkish military intervention in Cyprus had taken place following a coup by a Greek military junta seeking to implement the Enosis or “unity” policy, the UNSC (as well as the ECtHR) had prioritised the territorial integrity of the Republic of Cyprus over the right to self-determination enjoyed by the Turkish Cypriot community that vehemently opposed annexation by Greece, and on whose behalf Turkey had supposedly launched “Operation Attila”.

Aside from the obvious precedence of territorial integrity in practice, it is necessary to take into account that the inhabitants of the Azeri-majority districts surrounding Karabakh also had the right to self-determination, which was violently denied with the forced displacement of Azeris. Indeed, while some scholars raise questions as to whether the conflict had made the occupation of Azeri-majority districts necessary from a military point of view, no necessity can justify crimes against humanity.

Thus, it is in light of this gruesome past that we can understand the significance of Article 7 of the Armistice: The return of refugees under the auspices of the UN Office of the High Commissioner for Refugees. While it is yet to be seen whether it will encompass both Azeri and Armenian refugees, it can be surmised that neither the armistice nor the Azerbaijani counter-offensive resulted in a contradiction between the principles of territorial integrity and right to self-determination. If anything, the two principles complement each other as, with the armistice, de facto Armenian autonomy is guaranteed in the majority of Karabakh (Article 1), Armenian refugees -in principle- can return to their homes in areas controlled by Azerbaijan and Azerbaijani sovereignty over Karabakh is tacitly recognised.

In that case, then, where does the novelty of the Karabakh Armistice lie?

Reconciling uti possidetis with ex injuria jus non oritur

Until the emergence of the example of Kosovo, the almost exclusive praxis in state secession and succession was based on the fait accompli of previously established borders. Even today, despite the supremacy of realpolitik and the much-contested Advisory Opinion, the more common practice is that newly independent states keep the territory they possessed as federal or autonomous entities.

The example of the South Caucasus and the “Karabakh Armistice” demonstrate yet again the importance of the so-called uti possidetis (juris) rule described above. Indeed, had Armenia not intervened in the conflict and the so-called “Republic of Artsakh” not occupied Azeri-majority areas previously a part of the autonomous province, we could have possibly had a fundamentally different scenario. In that regard, we are witnessing a reconciliation between two seemingly mutually exclusive concepts within the context of a post-independence scenario: the aforementioned uti possidetis and the principle of ex injuria jus non oritur. In other words, it is imperceivable to argue, especially with regard to seceding states like Armenia and Azerbaijan, that an occupying power can claim rights on occupied territory citing historical claims in “indigenous peoples’ rights” clothing, or under the pretext of the right to self-determination – lest we have never-ending debates on “who settled first” and governments seeking to achieve “historical grandeur” by expansionist means.

The Karabakh Armistice thus not only represents a big step towards the restitution of Azerbaijani sovereignty while providing space for Armenian self-determination but may also become another layer in the further consolidation of the precedence of territorial integrity, especially as far as breakaway nations are concerned.

 

Aytekin Kaan Kurtul is a jurist and writer who is undertaking his doctoral research on the criminal defamation of heads of state at Middlesex University, London. His main research interests are freedom of political expression and “freedom of research”, as he has written extensively on topics including genocide denial, historical revisionism, and blasphemy.

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