02 Oct The “Frozen” Conflict in Nagorno-Karabakh
[Milena Sterio is The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law at the Cleveland-Marshall College of Law and Co-Coordinator for Global Justice Partnerships at the Public International Law and Policy Group.]
The “frozen” conflict in Nagorno-Karabakh between Azerbaijan and Armenia has intensified over the past weeks, with renewed fighting which has resulted in the death of over a hundred individuals. Although the international community has been involved in mediating peace negotiations in Nagorno-Karabakh over the past three decades, the recent escalation demonstrates that a long-lasting solution is nowhere in sight. This post will discuss the history of the Nagorno-Karabakh conflict, legal issues, such as self-determination and secession, related to the conflict, as well as prospects for peace and a permanent territorial solution.
Nagorno-Karabakh is de jure part of Azerbaijan, although it is inhabited by a majority of ethnic Armenians and although Armenia de facto controls most of this region’s territory. The history of this region is rooted in conflict, as various occupying powers fought for territory and influence in the Caucasus. In the early 1920s, when Soviet Union occupied the Caucasus region, Nagorno-Karabakh was placed within Azerbaijan’s territory and control. According to some historical accounts, this was done to placate Turkey, a potential regional rival (Turkey has been traditionally aligned with Azerbaijan and thus supportive of the inclusion of Nagorno-Karabakh within Azerbaijan). In addition, Nagorno-Karabakh at the time had a large ethnic Armenian population; placing a diverse ethnic group within the boundaries of a larger and ethnically different Soviet republic was an integral part of the Soviet strategy of ensuring that no republics were ethnically pure. During the Soviet rule, Nagorno-Karabakh was peaceful, but conflict began to escalate in the late 1980s, coinciding with the dismantling of the Soviet Union. When Armenia and Azerbaijan gained independence in the early 1990s, Nagorno-Karabakh remained within Azerbaijan, despite the presence of significant separatist forces in this region. Fighting and conflict ensued, and in 1991, Nagorno-Karabakh declared independence from Azerbaijan. Peace was brokered in 1994, mediated by the Organization of Security and Cooperation in Europe (OSCE), through the so-called Minsk Group (chaired by the United States, Russia, and France). Since 1994, Nagorno-Karabakh has officially remained a part of Azerbaijan although the province is de facto occupied by Armenian forces and although many ethnic Azeris have been forcefully driven out. Conflict has flared up regularly, as exemplified in the most recent surge of violence and fighting.
The international community has been clear in its messaging regarding Nagorno-Karabakh: the province is officially a part of Azerbaijan; any changes to Azeri borders must occur through peaceful negotiations; Armenian troops have been asked numerous times to withdraw from this province. Several Security Council and UN General Assembly resolutions confirm this stance and underscore the international community’s opinion that Armenia has illegally occupied a part of Azeri territory. Recognizing the reality of the situation in Nagorno-Karabakh, which is inhabited by a majority of ethnic Armenians and occupied by Armenian force, it appears that the end goal of the Minsk Group process it to negotiate a solution where Nagorno-Karabakh remains within Azerbaijan but is granted a significant degree of autonomy. This international community stance is not surprising: international law is premised on the principle of territorial integrity of existing states, reflected in doctrines such as uti possidetis. In addition, international law does not embrace a positive law norm on secession, and separatist movements, unless rooted in the principle of colonial self-determination, do not have an international right to separate from their parent states. The recent attempted separations of Catalonia and Kurdistan further confirm that the international community does not condone secessions attempted against the consent of the parent state. Although it may be argued that the Kosovo precedent lends legal support to the Nagorno-Karabakh secessionist movement, as well as to their 1991 declaration of independence, it is equally possible to set aside the Kosovo case as sui generis and to argue that Kosovo in no way alters our traditional understanding of international law and thus does not create a new positive law norm on secession. It may also be argued that international law is neutral on secession and essentially treats successful secessions as a fait accompli. If this is the case, then the burden lies upon the people of Nagorno-Karabakh to effectuate a successful secession and to present the end result to the international community for its approval. The recent fighting in Nagorno-Karabakh, as well as the involvement of various foreign troops and fighters, demonstrates that accomplishing a true separation from Azerbaijan is impossible for now, and that Nagorno-Karabakh’s secession is, at best, a work in progress. Last, it may be argued that the people of Nagorno-Karabakh have the right to self-determination, and that their separatist quest can find a legal foundation in this well-established principle of international law. However, it is unclear that the right to self-determination leads to secession outside of the colonial paradigm, or outside cases of extreme oppression. Instead, most authorities on self-determination would agree that the right needs to be exercised internally, through an autonomy regime within the confines of the existing parent state. Thus, the international community’s stance that Nagorno-Karabakh ought to remain a part of Azerbaijan, with some type of autonomous status, appears consistent with international law and most other precedents (except for Kosovo).
Although the international community’s attitude vis-à-vis Nagorno-Karabakh appears rooted in international law, the chances of success of the so-called Minsk Group and its mediation of the peace process remain slim. First, Nagorno-Karabakh has morphed into a proxy conflict, pitting Russia/Armenia on one side, and Azerbaijan/Turkey on the other. Some have accused Russia of using Nagorno-Karabakh as a bargaining chip over Armenia: in exchange for Russia’s support in the conflict, Armenia has been “persuaded” by Russia to limit ties to the European Union and to join the Eurasian Union instead, a Moscow-dominated free trade agreement viewed as Russia’s attempt to recreate the Soviet Union. The involvement of such foreign powers makes peace negotiations more complex and significantly lowers their chance of success. In addition, the involvement of foreign powers contributes to the “freezing” of this conflict, with no permanent legal solution in sight. Second, the region is already de facto controlled by Armenia and predominantly inhabited by ethnic Armenians. And, several surrounding regions, which officially belong to Azerbaijan, have also been occupied by Armenia, disabling land-based access to Nagorno-Karabakh for Azeri forces or citizens. If Nagorno-Karabakh remains within Azerbaijan with some type of autonomous status, the government of Azerbaijan will have a virtually impossible task of controlling separatist forces in Nagorno-Karabakh and may resort to emergency measures, such as revoking autonomy – which will in turn lead to further conflict. Third, and as a result of the ongoing “frozen” conflict, Nagorno-Karabakh remains poor, isolated and under-developed. These conditions often contribute to further instability and render peace negotiations extremely difficult. Thus, it may be argued that peace would be more easily achieved if Nagorno-Karabakh were able to secede from Azerbaijan. But for this to happen, the international community – if it wished to condone this secession – would need to recognize that separatist movements may have a right to secede. This is an unlikely outcome. The best outcome for Nagorno-Karabakh may be to increase the intensity of peace negotiations through the Minsk Group, where emphasis is placed on achieving long-term stability and where great powers such as the United States, Russia, the European Union and Turkey attempt to work together to find a sustainable solution. Such a solution would entail agreement by both Armenia and Azerbaijan regarding the negotiated status of Nagorno-Karabakh, as well as a detailed plan toward developing the region economically and building its political structure.