22 Jan Applying International Law to the Nagorno-Karabakh Conflict
[Todd Carney is a student at Harvard Law School. He holds a Bachelor’s degree in Political Science and Public Communications. He has also worked in digital media in New York City and Washington D.C.]
Since 1991, Armenia and Azerbaijan have been locked in an extreme conflict over the Nagorno-Karabakh region on their border. The region contains the unrecognized Republic of Artsakh. Armenia has implicitly backed Artsakh in part because it contains an Armenian majority. Azerbaijan opposes recognition because Artsakh is officially in Azerbaijan. The dispute has resulted in thousands of deaths. Despite the initial extreme nature of the conflict, the dispute has come to a standstill. However, there still have been breakouts of violence that has made life difficult for Armenia and Azerbaijan. The two countries have been on and off about finding a solution. Many Western powers, including the US, have encouraged Azerbaijan and Armenia to come to a permanent agreement, but there has been no real progress on that front. The conflict raises interesting questions regarding international law in terms of whether Armenia is violating international law and if international law can be used to find a solution to the conflict.
History of Conflict
The conflict goes all the way back to the 1917 when the Russian Empire fell. After the Russian Empire’s dissolution, Armenia and Azerbaijan declared their independence and went to war over disputed territories including Nagorno-Karabakh. A few years later, the Bolsheviks took control of both Armenia and Azerbaijan.
After this takeover, the USSR needed to placate many different ethnicities and state powers. So they simultaneously promised Nagorno-Karabakh to Armenia and Azerbaijan. There were distinct ethnic interests in the region. Armenians are predominantly Christian while Azerbaijanis are predominantly Muslim. Turkey wanted Azerbaijan to control Karabakh because Turkey wanted another Muslim country in the region. Ultimately the USSR maintained a strong control over Nagorno-Karabakh as they had with the rest of their territories. The USSR specifically designated Nagorno-Karabakh as an “autonomous oblast,” which defined it as a Federal District within Azerbaijan. It had the full name the “Nagorno-Karabakh Autonomous Oblast” (NKAO). At that time, the NKAO had a majority Armenian population and the Armenian population in the NKAO became angry about being under Azerbaijan’s control.
In 1987, as the collapse of the USSR looked inevitable and the USSR’s control over its regions waned, the Armenians saw an opening to get Nagorno-Karabakh under their control. So thousands of Armenians signed petitions sent to the USSR for Armenia to control the region. Armenians ramped up political pressure through protests, which resulted in violence from Armenians and Azerbaijanis.
This tension manifested into an all out war in 1988, that the USSR was unable to end. During this time, the NKAO’s parliament voted to become part of Armenia, but was largely ignored. The fighting inflamed and as a result over 20,000 people lost their lives during the war. The war got more intense when the NKAO formally declared itself to be an independent nation. Interestingly, Armenia did not “recognize” the independence but supported the NKAO financially and militarily. The local Armenian population was determined to separate from Azerbaijan. This conflict overflowed to Azerbaijani and Armenian regions outside the NKAO. As a result 750,000 Azerbaijanis and 300,000 Armenians were driven from their homes, most of which lived outside the NKAO.
The war finally stopped in 1994, when Azerbaijan recognized the NKAO officials as a relevant third party in the conflict and were willing to participate in Russia brokered talks. The talks did not bring a peace agreement but instead a cease-fire. During the conflict the by the Organization for Security and Cooperation in Europe (OSCE) formed the Minsk Group, which was meant to find a way to attain permanent peace. Ambassadors from Russia, France and the US currently chair the Minsk Group.
Modern Day Conflict
Since 1994, periodic violence has broken out due to various nationalist groups from both sides shooting each other. Aside from the periodic violence, tensions in the region remained stable until 2016, when a four-day work broke out. Armenia and Azerbaijan accused each other of starting the war, but official reports indicate that Azerbaijan started the war when they invaded areas of the NKAO controlled by Armenian backed forces. Over a dozen soldiers on each side died as well as some civilians, but the two countries agreed to a cease-fire, preventing a broader war.
The conflict put Russia and Turkey at odds as Russia backed Armenia and Turkey supported Azerbaijan. Though Turkey and Russia had already been at odds over Syria, this conflict put a further strain on their relationship. Moreover, though Russia officially backed Armenia in this conflict, Russia has sold arms to both countries and has strived to remain on friendly terms with Azerbaijan in order to maintain strong energy ties. Some in the international community were disappointed that the US did not get involved, particularly as the situation threatened to not only bring in Turkey and Russia, but also Saudi Arabia and Pakistan (both supporting Azerbaijan), which would create another proxy war, similar to Syria. After the ceasefire, Russia held mediated talks between Armenia and Azerbaijan, but the talks did not result in any new agreements.
In 2018, a significant change occurred in Armenia. Since Armenia’s independence from the Soviet Union, Armenia had been controlled by an oligarchy with significant limits on having democratic rights. However, the opposition forces in Armenia continually pushed for changes that eventually created free elections and elected Nikol Pashinyan as Prime Minister, the opposition leader who pushed for democratic changes. In the last year, the periodic violent acts from nationalists out of Armenia have ceased, giving advocates of reconciliation hope that the two countries could come to a resolution.
Where does international law come in?
One important factor is whether the NKAO is a country. No UN member nations recognize the NKAO, not even Armenia. This raises serious questions whether the NKAO meets 1(D) of the Montevideo Convention – which most of the international community considers to reflect customary international law – which mandates that a state must have the “capacity to enter into relations with the other States.” The other theory, constitutive theory, argues that on top of meeting the legal requirements, other states must recognize the state in order for it to achieve statehood. The complete lack of recognition of the NKAO makes a sound case that it is not a nation.
The NKAO’s strongest arguments are that it has a permanent population, a defined territory, and its own government. The NKAO would counter that though it does not have recognition from any other states, it is supported by Armenia, which functions as a relationship capacity. Moreover, the NKAO would refer to the ambiguity of the International Criminal Justice’s Advisory Opinion on Kosovo’s Declaration of Independence, that though it did not support Kosovo’s ability to unilaterally declare itself as a state, the ICJ did not rule against the move as a violation of international law and left open that such declarations of independence could create a state. The answer to this is that the ICJ specifically issued an advisory opinion as opposed to a ruling regarding Kosovo because it was not supposed to set precedent. Moreover, the NKAO has not continually declared itself to be its own state because at other points its government has said that it wants to be apart of Armenia.
The potential of the NKAO to join Armenia raises the question of whether Armenia has engaged in an illegal occupation of Azerbaijan. The situation raises similarities to Russia’s illegal occupation of Crimea. Russia has claimed that its occupation of Crimea is legal because the people of Crimea voted to join Russia. However, the international law community has overwhelmingly found Russia’s annexation of Crimea illegal, so to the extent that the comparison rings true, it could serve as an indictment of an illegal occupation.
In 1993, the UN passed four resolutions condemning both Armenia and Azerbaijan for their actions in the then-war but the resolutions did refer to the NKAO as “occupied” twelve times. But the resolutions never specifically said the troops were Armenian. However, Armenia at the very least has provided support to the ethnic separatist troops in the NKAO, even if they do not have their national troops in the NKAO. Azerbaijan has made this point before the UN, providing evidence of how Armenia supports the actions of both the troops and local government within the NKAO to further separate the region from Azerbaijan. Moreover, Armenia’s government has continually been the government Azerbaijan has negotiated with in negotiations related to the conflict.
If Armenia is illegally occupying part of Azerbaijan, then the question is what can international law do to stop it? One option is for the UN Security Council to pass sanctions. Article 39 of Chapter VII of the UN Charter allows the Security Council the power to bring sanctions if there is a “threat to the peace, breach of peace, or act of agression.” There is a strong case that Armenia has committed such an act here. The main issue with this option from a practical standpoint is that Russia is on the UN Security Council and Russia is an ally of Armenia, so Russia would likely veto any sanctions. Moreover, when a general assembly resolution passed in 2008 condemning Armenia’s actions in Azerbaijan, over half the UN’s member states abstained, further suggesting that there is not a political appetite for sanctions.
Another option is unilateral sanctions. Azerbaijan and Turkey have already done this by closing off their borders with Armenia. Since Armenia is landlocked, the only ways to get out of Armenia are through Iran and Georgia. Armenia has dug its heels in, so it seems the best way to get Armenia to change is unilateral sanctions from a powerful nation such as Russia or the US. Russia would again never implement unilateral, due to its alliance with Armenia. It would also make Russia seem blatantly hypocritical for condemning Armenia for something it is doing in Crimea. In terms of the US, they are a part of Minsk Group, which has maintained neutrality in the conflict. Additionally, last time that tensions flared in the region in 2016, the US declined to get involved and there is nothing to suggest the US would change course now.
A potentially explosive option is for Azerbaijan to bring Armenia before the ICJ. Armenia lauded the Kosovo Advisory Opinion, despite the fact that the opinion had no real precedential value. Bringing the case to the ICJ could force the court to establish actual international law regarding self-determination of a nation, along with hopefully forcing a resolution to the dispute at hand.
The NKAO dispute seems to be endless and perhaps there will be no end until some of the major powers in the world decide to get further involved and force a solution. It is easy for powerful nations to ignore countries like Armenia and Azerbaijan. However, when over 20,000 people have died due to the conflict and the two countries are constantly on the verge of igniting a war that could bring in other powers, the world cannot afford to continue to let this game of brinkmanship continue.