From Displacement to 'Peace': Legal Defects of the Washington Agreement between Armenia and Azerbaijan

What the Accord does not address, however, is the mass displacement of over 100,000 ethnic Armenians from Nagorno-Karabakh in September 2023. The Parliamentary Assembly of the Council of Europe described the mass exodus as giving rise to a reasonable suspicion of ethnic cleansing. The International Court of Justice (ICJ), in its 17 November 2023 Armenia v Azerbaijan order, acknowledged the event as plausibly the forced displacement of Armenians (paras 40-41). The principle ex injuria jus non oritur (law does not arise from injustice) provides a lens to scrutinise this question. International law does not allow an unlawful situation created by a serious breach of fundamental norms to be legitimised merely through a subsequent agreement. This piece analyses the Accord against that legal backdrop, examines the implications of omitting the displaced Armenians' rights, and whether such an agreement can have any lawful effect, especially under jus cogens, the law of treaties, the law of state responsibility, and relevant ICJ jurisprudence.

Omissions of Remedy

The Accord omits what, in many other peace accords, is an essential component of post-conflict justice. For example, Annex 7 of the Dayton Peace Accords for Bosnia in 1995 addressed refugee return and property restitution, aiming to reverse the ethnic cleansing of the Bosnian war. In sharp contrast, the initialled text between Armenia and Azerbaijan contains no equivalent guarantees.

It is in this light that Article XV of the initialled document raises profound concerns. The provision obliges the Parties to 'withdraw, dismiss, or otherwise settle any and all interstate claims… in any legal forum' within one month of the treaty's entry into force. This would encompass Armenia's pending case against Azerbaijan before the ICJ, and Armenia's inter-state application before the European Court of Human Rights. These proceedings go beyond abstract inter-sovereign disputes – they are rooted in the protection of individual rights against racial discrimination, arbitrary detention, and mass displacement. To be sure, States do enjoy a high degree of autonomy in resolving conflicts, and peace agreements often involve painful compromises (including amnesties or waivers of claims). However, international law draws the line at agreements that violate peremptory norms or undermine erga omnes obligations. This is the limit of party autonomy in treaty-making. In this way, jus cogens ensures that post-conflict settlements do not cement the very injustice that international law universally condemns. A legally compliant peace settlement in this case would require ad minimum: (i) binding provisions for the voluntary, safe, and dignified return of displaced persons; (ii) independent international monitoring of return and restitution processes; (iii) mechanisms for property restoration and/or compensation; and (iv) guarantees of non-repetition, potentially through security arrangements or autonomous governance safeguards. The legal ground for such measures was already set out by the ICJ's 17 November 2023 order, which instructed Azerbaijan to ensure unimpeded movement into and out of Nagorno-Karabakh (paras. 40-41, 74).

Since the 20th century, international law practice has rejected the idea that a State may benefit legally from its wrongdoing. The Stimson Doctrine (non-recognition of Japan's conquest of Manchuria in 1931) and the post-World War II legal order cemented this principle. The 1970 U.N. Friendly Relations Declaration explicitly affirmed that 'no territorial acquisition resulting from the threat or use of force shall be recognized as legal'.

This principle extends beyond territory to other serious breaches of international law. Acts such as genocide, crimes against humanity, racial discrimination (apartheid), or aggression cannot be rewarded or legitimised by subsequent arrangements. This position was expressly reaffirmed in the International Law Commission's 2022 Conclusions on Peremptory Norms of General International Law, which listed these prohibitions as among the core peremptory norms binding on all states. If a population is expelled in violation of fundamental rights, the expulsion cannot become irreversible simply because a peace treaty turned a blind eye to it. As the Latin maxim is sometimes paired: ex injuria jus non oritur (no legal right arises from injustice) is the converse of ex factis jus oritur (law arises from facts), only factual situations not tainted by serious illegality may give rise to legal rights.

Jus cogens, or peremptory norms of international law, are those fundamental norms accepted and recognised by the international community from which no derogation is permitted. The Vienna Convention on the Law of Treaties (VCLT) codifies the overriding force of jus cogens in treaty law. Article 53 VCLT provides that 'a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law'. Article 64 VCLT further adds that if a new peremptory norm emerges, any existing treaty that conflicts with that norm becomes void and terminates.

The Accord as such does not contradict Article 53. Yet Article XV of the Accord, by obliging the withdrawal of cases before international tribunals, it conflicts with the duty of non-recognition and the erga omnes obligation to cooperate in bringing serious breaches to an end. And by foreclosing avenues of redress, it attempts to waive rights that are non-derogable under human rights law, including the right of displaced persons to return and to obtain effective remedies. Thus, the Accord imposes procedural bars that extend into the sphere of substantive rights well beyond its bilateral scope, amounting to a plausible breach of jus cogens obligations of an erga omnes character and, in effect, constituting a denial of avenues to justice.

State Responsibility and the Duty of Non-Recognition

The International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) devotes Chapter III to 'Serious Breaches of Obligations under Peremptory Norms'. Article 40 of the ARSIWA defines a 'serious breach' as one that involves a gross or systematic failure by the responsible State to fulfill an obligation arising under a peremptory norm. The ethnic cleansing of an entire people from their homeland would qualify as a serious breach of a peremptory norm. Article 41 ARSIWA then sets out special consequences of such serious breaches. All States have an obligation to cooperate to bring to an end the breach by lawful means, and no State shall recognise as lawful a situation created by a serious breach, nor render aid or assistance in maintaining that situation. This codifies in positive law the ex injuria principle: the international community must withhold recognition and support from the fruits of egregious illegality.

The duty of non-recognition has been affirmed in previous ICJ jurisprudence. In the 1971 Namibia Advisory Opinion (Legal Consequences for States of the Continued Presence of South Africa in Namibia), the Court held that States were obligated to deny legal recognition to South Africa's illegal occupation of Namibia and to refrain from any acts implying its legality (paras 126, 133). Similarly, in the 2004 Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), the ICJ concluded that all States are under an obligation not to recognise the illegal situation resulting from Israel's construction of the wall and associated measures, and not to render aid or assistance in maintaining that situation (paras 159-160). Most recently, in the 2019 Chagos Advisory Opinion (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius), the ICJ reiterated that the continued administration of Chagos by the United Kingdom was an unlawful situation resulting from a serious breach. It advised that all UN Member States must cooperate with the United Nations to complete the decolonisation of Mauritius, implicitly requiring States not to recognise or acquiesce in the unlawful status quo (paras 176-178). The consistent thread in these cases is the duty of non-recognition of situations created by grave breaches. Applying this to the Washington Accord, we encounter a paradox. If Armenia, through the Accord, effectively 'normalises' the ethnic cleansing of Armenians, and Azerbaijan's uncontested control of Nagorno-Karabakh without its Armenian inhabitants, did Armenia breach the obligation of non-recognition? Some would argue that Armenia has a duty erga omnes not to recognise the situation created by Azerbaijan's gross violations. Regardless, third States and international organisations should not be relieved of their obligation to refuse recognition just because Armenia and Azerbaijan struck a deal. In practical terms, States could refuse to acknowledge the ethnic Armenian population's rights as extinguished. They could insist on the right of those people to return or receive compensation, notwithstanding the silence of the bilateral treaty.

Conclusion