Remedial Secession and the Responsibility to Protect: The Case of Nagorno-Karabakh

[Sheila Paylan is an international human rights lawyer and former legal advisor for the United Nations.]

On 3 December 2020, the French National Assembly joined the French Senate in passing resolutions nearly unanimously calling on the French government to recognize the Nagorno-Karabakh Republic and use such recognition as an instrument of negotiations for the establishment of a sustainable peace. The French Parliament thus became the first legislature in the world to condemn Azerbaijani-Turkish aggression against Nagorno-Karabakh and recognize its independence. Five days later, the Canadian Senate rejected a nearly identical motion calling for condemnation and recognition in respect of Nagorno-Karabakh. Similar resolutions calling for varying degrees of action, from sanctions to recognition, have begun to surface before governments around the world since a “Ceasefire Statement” brokered by Russia between Armenia and Azerbaijan came into effect on 10 November 2020, bringing a fragile end to renewed hostilities in Nagorno-Karabakh that raged since 27 September 2020.

The Ceasefire Statement, which allows Azerbaijan to hold on to areas of Nagorno-Karabakh that it seized during the conflict and requires Armenia to withdraw from several other adjacent areas, constitutes more than just a ceasefire, but much less than a proper peace agreement and does not resolve the most important issue at the core of the conflict. In particular, there is no mention of the status of Nagorno-Karabakh as a subject of ongoing dialogue. The omission glares in the light of President Ilham Aliyev of Azerbaijan’s avowal that he will never accept, let alone discuss, the status of Nagorno-Karabakh as long as he is president, in stark contrast to Prime Minister Nikol Pashinyan of Armenia’s assertion that the matter of Nagorno-Karabakh’s status and recognition continues to remain a live issue of fundamental importance. This continued impasse, which has persisted for nearly 30 years despite the efforts of the OSCE Minsk Group, is what makes the so-called “frozen” conflict in Nagorno-Karabakh still so dangerous.

Although marred with reports of serious war crimes, the 44-day war did little to move the community of states beyond the usual rhetoric of calling the parties back to peaceful negotiations through the Minsk Group. It also failed to inspire most international lawyers beyond merely recalling that the world – guided by the principle of territorial integrity as reflected in the doctrine of uti possidetis juris – still officially considers Nagorno-Karabakh to be part of Azerbaijan, and that, accordingly, any realistic hope for the former to exercise its right to self-determination lies squarely within the framework of the latter.

According to international legal scholars, self-determination does not automatically provided peoples with a unilateral right of secession beyond cases of decolonization. However, even the staunchest anti-secessionist will be hard-pressed to find any principled justification as to why colonized peoples have every moral and legal right to cast off the domination of governments that are not representative of their interests, but a territorially distinct and concentrated minority which – pursuant to the gerrymandering whims of Soviet rulers applying divide-and-rule policies (here p. 283) – arbitrarily finds itself annexed to a similarly oppressive State must forever remain without recourse to external self-determination. Moreover, there is no denying that secession has already occurred outside of the decolonization context and has been condoned by the international community (e.g. East Timor, Bangladesh, Kosovo, South Sudan).

Many scholars have also endorsed remedial secession, notably the late Antonio Cassese, for whom secession beyond the confines of decolonization may be legitimate in cases of extreme and unremitting persecution devoid of any reasonable hope or prospect for internal self-determination (here p. 120). The Supreme Court of Canada echoed similar views in its landmark judgment concerning the secession of Quebec (here paras. 126-138, 154), as did the International Court of Justice in the Kosovo case – in which it concluded that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law” (here para. 123) – through the opinions of Judges Yusuf (here para. 11) and Cançado Trindade (here paras. 175-176, 184, 206-208), according to whom “[n]o 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 notwithstanding the sentiments and ineluctable resentments of the ‘people’ or ‘population’ victimized. […] Such atrocities amount to an absurd reversal of the ends of the State, which was created and exists for human beings, and not vice-versa.”

In this manner, international recognition of remedial secession functions analogously to the Responsibility to Protect (R2P), where sovereignty and territorial integrity are not assured when a State abuses the rights of its inhabitants, especially when it commits atrocity crimes against them. R2P contains three pillars: (1) a State’s responsibility to protect its own population; (2) the international community’s duty to assist States in fulfilling their duty to prevent and protect; and (3) the international community’s responsibility to take timely and decisive action through peaceful means, failing which it may use more forceful means, in a manner consistent with international law. As such, R2P stipulates that if a country is unable or unwilling to protect its civilians from mass atrocities, then the international community must act swiftly to fill the protection void.

If there was any doubt in the period leading up to or since Nagorno-Karabakh’s declaration of independence in 1991 as to whether Armenians could live with any meaningful degree of autonomy and safety under Azerbaijani rule, the horrific atrocities reported to have been committed against them in the last two months should constitute ample proof that continuing to suggest their internal self-determination, participation, and protection in Azerbaijan is no longer tenable. Not only were the 44 days of war rife with reports of the use of inherently indiscriminate munitions, chemical weapons, and Syrian mercenaries, but there is also mounting evidence since the ceasefire came into effect of acts of torture, mutilation, executions and enforced disappearances continuing against Armenian POWs still in captivity, as well as civilians who chose to remain in or return to Nagorno-Karabakh. Against a background of State-sponsored anti-Armenian violence and hate speech that, despite having been condemned by the European Court of Human Rights, has continued to fuel the ongoing conflict, as well as well-documented evidence of cultural genocide, and at least 100,000 (i.e. two thirds) of Nagorno-Karabakh’s Armenian population having been forced to flee their homes since the truce, one can’t help but wonder (somewhat rhetorically) how much higher the threshold of unbearable persecution has to be in order to warrant remedial secession or other intervention under R2P.

The third pillar of R2P elaborates the full range of options for timely and decisive response. Non-military tools designed to prevent the escalation of atrocity crimes include mediation, monitoring and observer missions, fact- finding missions and commissions of inquiry and public advocacy by international officials. Acting under Chapter VII of the UN Charter, the international community has also employed more robust tools, including sanctions designed to discourage the targeting of civilians, the establishment of peacekeeping missions and the authorization of military action with the express purpose of protecting civilians (here pp. 36-43).

However, every situation is different and calls for case-specific action. In the case of Nagorno-Karabakh, the measure of remedial secession or recognition can be particularly relevant and effective in definitively resolving a decades-long standoff that keeps rearing its ugly head with no end in sight. It may also be an appropriate remedy in cases where atrocity crimes or even genocide may be underway against the peoples vying for self-determination, especially if the lack of recognition constitutes an impediment to States and/or international organizations in reaching affected areas. Canada’s recognition in 1972 of Bangla Desh (as it was then called), for instance, was premised on the understanding that only by recognizing it could Canada provide the aid necessary to prevent a major humanitarian catastrophe.

Whatever the case may be, as the vastly differing decisions of the French and Canadian legislative bodies have shown, the debate is bound to persist as to whether remedial secession is, despite theoretical reasons to support it – a desirable tool to implement even in extraordinary circumstances. Regardless of where one’s opinion may land on the self-determination spectrum, however, at the very least any discussion of secession or recognition of the independence of a repressed people is owed a certain level of rigor in considering whether circumstances may exceptionally call for it.