Artsakh Papers

By Arman Azadian, Ontario, April 2021

Territorial Integrity versus self-determination

Both the principles of self-determination and territorial integrity are established principles in international law, but on balance, territorial integrity takes precedent, and only in exceptional circumstances the opposite is true. The reasoning behind this argument is not difficult to discern. Modern nation States are composed of numerous minority groups, and if the global community were to allow every minority group to fragment the world into many smaller States for the purposes of self-determination, this would lead to much instability, with no end to further fragmentation with the birthing of additional minority groups. However, what level of internal oppression, persecution, and neglect should be tolerated before a nation can be said to have abrogated its right to territorial integrity? Territorial integrity should never be absolute as this may lead some nations to persecute its minority population with impunity while being shielded from international intervention under the cover of territorial integrity.

Moreover, what does international stability really mean and who gets to decide if a geopolitical situation is sufficiently stable? In the context of globalization and the intertwining interests of the world’s major powers, international stability means that goods, services, energy, labor, and capital flows freely with little, if any, friction between regions, nations and continents. [1a] The more fragmented the world is, the more friction this will produce. In this context, territorial integrity supersedes self-determination since the former reduces friction and therefore increases global stability. Furthermore, the driving forces behind this deference to territorial integrity are the transnational corporations and western industrialized States.[2a] The increase of international trade agreements and the birth of the World Trade Organization was to make all nations of the world interdependent for the purposes of economic prosperity as this interdependency is likely to deter interstate acts of aggression since such acts between trading partners would produce undesired economic consequences for all parties involved.[3a] Nevertheless, the International Court of Justice has limited the primacy of territorial integrity with its findings on Kosovo’s remedial secession, in that, territorial integrity is not assured to a parent State if the parent State is unwilling or incapable of preventing acts of genocide within its borders. In such cases, international intervention may be necessary under the doctrine of Responsibility to Protect. Azerbaijan’s inhumane  treatment of the indigenous Armenians of Artsakh for the past 30 years have undoubtedly surpassed this threshold, thus, Artsakh is overdue for a remedial secession as Azerbaijan cannot be trusted to treat the Armenian population with the most basic of human dignity.

The Republic of Artsakh and the Montevideo Convention

Article I of the 1933 Montevideo Convention on the Rights and Duties of States[1b] stipulates four criteria that an entity must possess in order to be considered as a State.

Permanent population

There is no minimum number of occupants required to satisfy this criterion. For instance, the Republic of Nauru had a population of around 10,000 when it became independent in 1968.[2b] Artsakh had a population of 189,000 when the independence referendum took place on 10 December 1991, of which 146,000 were ethnic Armenians.[3b]

A defined territory

The Republic of Artsakh declared its independence in the defined territory of Nagorno-Karabakh Autonomous Oblast, an autonomous division inside the Azerbaijani SSR. The Republic of Artsakh has had a defined geographic boundary since the referendum in 1991.[4b]

A government

The Republic of Artsakh elected its government 20 days after the referendum for independence. Artsakh has its own fully functioning government, including a Constitution, Ministry of Foreign Affairs, a police force, a defense army, including legislative elections which take place regularly, constitutionally and democratically.[5b]

Capacity to enter into relations with the other States

This criterion requires a State to carry out the usual functions of a State without depending on other State(s) for aid in these functions.[6b] However, since Artsakh is not internationally recognized as a State, this makes it difficult for the Republic to enter into relations with other ‘recognized’ States. At the same time, Artsakh has permanent representative offices in the United States, Germany, France, Australia, Russia, Lebanon which can be viewed as a form of foreign relations with other States.[7b] Moreover, in the 1994 ceasefire agreement between Armenia, Artsakh and Azerbaijan, one of the signing parties of the ceasefire agreement was a representative of the Republic of Artsakh, which also demonstrates Artsakh’s ability to enter into international relations with other States.

Article 6 of the Montevideo Convention further stipulates that the recognition of a State merely signifies that the State which recognized it accepts the personality of the other State with all the rights and duties determined by international law.[8b] Then again, ‘recognized’ States do not have a positive duty to recognize any other State since recognition is purely a political decision. The Montevideo criteria are merely a necessary requirement for recognition of a new State but not a sufficient one since the final act of recognition by the international community is for reasons specific to each recognizing State.

Furthermore, when the international community considers recognition of other States, it will also consider how the acquisition of the territory came about, whether through the use of force or peaceful means. Nevertheless, use of force may be considered a legal and sometimes necessary means of acquiring territories for the purposes of self-determination if the use of force was in response to an oppressive regime or in self-defense against genocide or ethnic cleansing.[9b] For example, in 1971, Bangladesh acquired its territories through the use of force, exercising its right for self-determination in order to escape an oppressive regime, and as such, Bangladesh is an internationally recognized State.[10b]

The ethnic Armenians have been living in the region for thousands of years and have been deeply persecuted by the Turkic peoples of the region, especially by Turkey during the Armenian Genocide of 1915 in Western Armenia and the Azerbaijani pogroms in the East – Artsakh and Azerbaijan, of the late 1980s. It then follows that Artsakh had the legal and moral right to defend itself against an oppressive and genocidal regime as Article 3 of the Montevideo Convention allows for ‘unrecognized’ (defacto) States to defend themselves if under attack.[11b]

Azerbaijan’s Captured Territories of Artsakh are Illegal

During the war of 1992, Armenian forces secured more than just the Republic of Artsakh, they also took control of surrounding territories that technically belong to Azerbaijan. The occupation of the surrounding territories was for the purposes of creating a security buffer zone. If only Artsakh was secured during the 1992 war, then Azerbaijani forces could have encircled Artsakh which would have led to another genocide. As a result of Armenia’s and Artsakh’s control of Azerbaijani territories surrounding Artsakh, the UN passed four resolutions (UN Resolutions 822,[1c] 853,[2c] 874,[3c] and 884[4c]) between 1992 and 1993, condemning Armenian hostilities and urging for both sides to come to a peaceful resolution.

However, during the recent war, Azerbaijan took back the surrounding territories, but it also took possession of some portions of Artsakh, namely the city of Shushi, a cultural center for the Armenians of Artsakh. Azerbaijan’s justification for ceasing portions of Artsakh is its inappropriate reliance on UN Resolution 884. The wording of UN Resolution 884 is very troubling as it “calls upon the Government of Armenia to use its influence to achieve compliance by the Armenians of the Nagorno Karabakh region of the Azerbaijani Republic (emphasis added) …” In this Resolution, the UN Security Council appears to have declared Artsakh as a “region of the Azerbaijani Republic.”

UN Security Council has no authority to make any decisions on Statehood or territorial limits through its resolutions. The only principal UN organ vested with such powers is the International Court of Justice (ICJ). Therefore, Azerbaijan’s reliance on UN Resolutions 884 to support its territorial claim to Artsakh is wholly inappropriate. Also, the international borders between Armenia, Artsakh and Azerbaijan were never established under international law in the 20th century prior to absorption into the USSR,[5c] and any such determinations other than by the ICJ is non-binding.

Moreover, the UN Security Council did not adopt any of the Resolutions under Chapter VII, which is the only avenue to mandate the use of force, and the sole prerogative of which lies with the UN Security Council. Therefore, any use of force by Azerbaijan against Artsakh and its people is inconsistent with the UN Charter and a violation of international law as an act of aggression. Azerbaijan’s pretense of implementing Resolutions 884 to justify its use of force against Artsakh is invalid and illegal. Additionally, as per Judge Cançado Trindade;

“no State can invoke territorial integrity in order to commit atrocities (such as the practices of torture, and ethnic cleansing, and massive forced displacement of the population), nor perpetrate them on the assumption of State sovereignty, nor commit atrocities and then rely on a claim of territorial integrity…” [6c]

The territories of Artsakh that Azerbaijan is currently occupying have been seized illegally by acts of ethnic cleansing and genocide. If Artsakh successfully secedes from Azerbaijan, then all currently occupied territories of Artsakh must also be freed of Azeri occupation and handed back to its rightful inhabitants.

It is likely that Azerbaijan may argue that its use of force against Artsakh was in self-defense, in order to legitimize its acts of aggression. Then again, upon a closer look at the facts, this argument would be baseless. The joint Azeri-Turkish aggression against Artsakh is a violation of both codified and customary international law which prohibit the use of force, unless attacked, and only then, a proportionate force must be used. Article 51 of the UN Charter States that sovereign nations have an inherent right to self-defense, this right is allowed only “if an armed attack occurs against a Member of the United Nations.”[7c]Yet no such “armed attack” took place by either Artsakh or the Republic of Armenia, nor the conditions of “self-defense” or of “pre-emptive self-defense” ever existed. Article 2 (3) of the UN Charter makes clear that “all Members shall settle their international disputes by peaceful means in such a manner that international peace, security and justice, are not endangered.”[8c]

Putting aside that there was no evidence of an armed attack against Azerbaijan by Artsakh, Azerbaijan has waived any self-defense argument by committing the following: (1) inhuman treatment of all captured Armenians, torture, executions and beheadings of captive Armenian civilians and POWs; (2) widespread destruction of civilian infrastructure; (3) destruction of cultural and religious heritage; and (4) propagation of anti-Armenian hate speech by the Azerbaijani political leadership and public figures, encouraging identity-based crimes against Armenians.[9c] Reports by the Human Rights Defenders of Armenia and Artsakh contain abundant evidence documenting the atrocities committed by the Azerbaijani armed forces against captured ethnic Armenian civilians and POWs, detailing the torture, mutilation and killing of captured Armenian civilians even after the 9 November 2020 ceasefire agreement.[10c] Azerbaijan, with the aid of Turkish forces and Syrian mercenaries, poured a grossly disproportionate amount of firepower against the Artsakh Defense Army, with extreme prejudice, in violation of the proportionality requirement of Article 51 of the UN Charter. What took place in Artsakh was not Azerbaijan defending itself, rather, it was Azerbaijan committing genocide against the indigenous Armenians of Artsakh.

References

[1a] Simon Lester et al, World Trade Law: Text, Materials and Commentary, 3rd ed (Oxford: Hart Publishing, 2018) at 19—28.

[2a]Mark W. Zacher, “The Territorial Integrity Norm: International Boundaries and the Use of Force” (2001) at 228—230, online (pdf): Bibliothek der Friedrich-Ebert-Stiftung<library.fes.de/libalt/journals/swetsfulltext/10676368.pdf>.

[3a] Lester, supra note 1.

[1b] Montevideo Convention on the Rights and Duties of States, 26 December 1933 art 1 (entered into force 26 December 1934) [LNTS].

[2b] Kelly Buchanan, “Nauru – 50 Years of Independence” (31 January 2018), online (blog): Library of Congress <blogs.loc.gov/law/2018/01/nauru-50-years-of-independence/>.

[3b] Saha et al, “The economic effect of a resolution of the Nagorno-Karabakh conflict on Armenia and Azerbaijan” (2018) online: Berlin Economics <berlin-economics.com/the_economic_effect_of_a_resolution_of_the_nagorno-karabakh_conflict/>.

[4b] Sheila Paylan et al. “The Case For Canada’s Recognition Of The Republic Of Artsakh (Nagorno-Karabakh) As A Measure Of The Responsibility To Protect” (25 November 2020) at 18, online (pdf): <anccanada.org/wp-content/uploads/2020/12/The-Case-for-Canadas-Recognition-of-Artsakh-under-R2P-25-Nov-2020.pdf>.

[5b] The Government of Artsakh Republic, online: <gov.nkr.am/en/>.

[6b] Montevideo Convention, supra note 1.

[7b] “Representations of the Nagorno Karabakh Republic”, online: Office of the Nagorno Karabakh Republic  <www.nkrusa.org/foreign_policy/representations.shtml>.

[8b] Montevideo Convention, supra note 1, art 6.

[9b] Ali Zoununy Zadeh, “International Law and the Criteria for Statehood”, Tilburg University Administration No s288571, online: <arno.uvt.nl/show.cgi?fid=121942>.

[10b] Sheila Paylan , “Responsibility to Protect: The Case of Nagorno-Karabakh” (23 December 2020), online: <opiniojuris.org/2020/12/23/remedial-secession-and-the-responsibility-to-protect-the-case-of-nagorno-karabakh/>.

[11b] Montevideo Convention, supra note 1, art 3.

[1c] UNSC, Armenia-Azerbaijan, UN Doc S/RES/822, 30 April 1993.

[2c] UNSC, Armenia-Azerbaijan, UN Doc S/RES/853, 30 April 1993.

[3c] UNSC, Armenia-Azerbaijan, UN Doc S/RES/874, 30 April 1993.

[4c] UNSC, Armenia-Azerbaijan, UN Doc S/RES/884, 30 April 1993.

[5c] Sheila Paylan et al. “The Case For Canada’s Recognition Of The Republic Of Artsakh (Nagorno-Karabakh) As A Measure Of The Responsibility To Protect” (25 November 2020) at 17, online (pdf): <anccanada.org/wp-content/uploads/2020/12/The-Case-for-Canadas-Recognition-of-Artsakh-under-R2P-25-Nov-2020.pdf>.

[6c] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] ICJ Rep 403 at 523.

[7c] Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 art 51.

[8c] Ibid, art 2(3).

[9c] “Armenian Ambassador to UN: Azerbaijan’s Actions Set Dangerous Precedent”, The Armenian Mirror-Spectator (21 January 2021), online: <mirrorspectator.com/2021/01/21/armenian-ambassador-to-un-azerbaijans-actions-set-dangerous-precedent/>.

[10c] The Republic of Artsakh Human Rights Ombudsman, Second Interim Report: On the Atrocities Against the Artsakh Population in September-October 2020 (Stepanakert: 18 October 2020), online: <artsakhombuds.am/en/document/735>.

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