My interview on the Nagorno-Karabakh Conflict has been published by The Perspective Journal. Read the digital version here.
With the conflict between Armenia and Azerbaijan in the Nagorno-Karabakh in its most active phase since 1994, the questions about the legal status of this mountainous region located in the Caucasus are being discussed in the wider media more frequently. An unfortunate feature of such discussions is the fact that legal questions are usually discussed by specialists in fields other than international law. This results in quasi-legal or even unsubstantiated arguments that have no relevance to real legal science.
One such argument that has recently surfaced is a false equation mark between situations in Kosovo and in Nagorno-Karabakh. It wrongly claims that Kosovo can serve as a precedent for the so-called “remedial secession” of Nagorno-Karabakh from Azerbaijan. The simple fact of the matter is that Kosovo, as a case, has no connections to the Nagorno-Karabakh conflict.
This can be tested by a simple analysis of the international law position vis-à-vis Nagorno-Karabakh’s legal status. First, and foremost—it is a recognized part of the territory of Azerbaijan. The international community confirmed this several times through the United Nations. The most vivid example is 2008 UN General Assembly resolution 62/243 “The Situation in the Occupied Territories of Azerbaijan.” Moreover, that fact was confirmed judicially by the European Court of Human Rights in the 2015 case Chiragov et. al. v. Armenia. The court confirmed two necessary preconditions for military occupation (effective control and boots on the ground in paragraphs 180 and 186) and, thus, confirmed that Armenia occupied Nagorno-Karabakh and adjacent seven regions of Azerbaijan.
Second, unlike Kosovo, Nagorno-Karabakh’s autonomy was tied to a separate sovereign state—Azerbaijan Soviet Socialist Republic (AzSSR). AzSSR was in accordance with the Soviet Union’s Constitution of 1977 (Article 76) one of the sovereign member-states of the union. Nagorno-Karabakh, on the other hand, did not have a sovereign status. When the Soviet Union fell apart, its internal administrative borders became the international borders of the union’s former members, including Azerbaijan and Armenia. Moreover, none of the member-states or other entities of the Soviet Union had a chance to separate from the Soviet Union using its 1990 law that regulated secession. Soviet Union fell apart before the conditions of the law could be fulfilled by anyone.
Third, the right of peoples to self-determination, which was widely (but falsely) claimed for the Armenian population of Nagorno-Karabakh, was proven by competent international law specialists to be inapplicable to minorities and not a right to secession. The Armenian minority in Nagorno-Karabakh does not constitute separate “people” from peoples of Azerbaijan or Armenia. They are ethnically Armenian and formally citizens of Azerbaijan. Not a population of a theoretical overseas colony to be decolonized by the right to self-determination. That is why this right is in no way applicable to Nagorno-Karabakh.
Fourth, there is no “right to remedial secession” in international law. The International Court of Justice basically said as much in its Advisory Opinion on Kosovo’s declaration of independence. The concept of remedial secession is actually a political concept, one that is not very closely connected to international law. Moreover, trying to connect the concept of remedial secession to Nagorno-Karabakh is simply cynical, as it was an Azerbaijani population that was persecuted and forcefully removed from Nagorno-Karabakh, not the Armenian minority.
The issue of Nagorno-Karabakh being a part of Azerbaijan affects even the political positions of key regional states and extra-regional players. All of the permanent members of the UN Security Council (China, France, Russia, the United States and the UK) recognize that recent fighting was within the sovereign borders of Azerbaijan and that Armenia was not a victim of aggression. Even Russia, which has military bases in Armenia, and which owns most of Armenia’s critical infrastructure, and has clear interests in the well-being of its strategic partner, has confirmed that the fighting had nothing to do with the sovereign territory of Armenia and, thus, cannot trigger collective defense obligations.
All of the above makes calls for the recognition of Nagorno-Karabakh as an independent state unreasonable. It would be in clear breach of international law and against the position of the international community. The United States should consider that any such move against international legal order will threaten the system of international security that the United States has been building together with others since 1945.
Kamal Makili-Aliyev
Doctor of Laws
10.12.2020
Panel: Will Armenia-Azerbaijan flare-up turn into a wider war? - China Radio International discussion
0I have participated in the discussion on the Nagorno-Karabakh today at China Radio International with the moderation and hosting Anna Ge. My main point: the only way the conflict can be solved peacefully is through arbitration, not mediation.
Listen to the podcast below:
My new book on the Nagorno-Karabakh Conflict and the Aland Islands precedent called "Contested Territories and International Law" is now available for PRE-ORDER @ AMAZON.com
My research note on the comparison between the Nagorno-Karabakh Conflict and the Åland Islands precedent in the Journal of Autonomy and Security Studies. Read the digital version here.
The possibility of President Trump's decision to lift some sanctions that were imposed on Russia has created some concern in both media and expert community and has even sparked the arguments that such course of action may even affect the international law enforcement in the most negative way. While there is some truth to that, the situation is much more complicated when it comes to the real enforcement of international law on the global scale.
Indeed, when you are imposing sanctions on the state for violations of international law they should serve as an instrument of making that state comply with the rules and norms of international law. That much is true. However, it is rarely explained in the media, why U.S. have decided to impose sanctions on Russia unilaterally, albeit that it was then followed by some of its allies in Europe. The fact of the matter is that a lot of norms of the contemporary international law can be found in the Charter of the United Nations (UN), one of the grounding documents of the world order we live in right now.
All members of the UN are bound by the norms that are embedded into the Charter and agree to follow these norms on international level. The Charter have established a body of the UN called Security Council, that is charged with the maintenance of international peace and security. This body consists of permanent and non-permanent members. The later are changing based on specific procedure, while the former remain members of the Security Council basically since the end of World War II. Conflict situations between states (such as for example between Russia and Ukraine) are falling under the jurisdiction of Security Council that has powers to impose sanctions based on the decisions of its members. This is a legitimate procedure on how international community makes decisions that the breach of one of the states of international law and its obligations under UN Charter should be treated with sanctions of economic, military or other character based on globally accepted norms of international law.
The question then arises, why haven't the U.S. chose that same path to legitimize the sanctions against Russia through the UN with the support of the international community? The simple fact is that decisions of the Security Council can be vetoed by any of its permanent members and one of such members is Russia. Which brings us to the point that U.S. was unable to try and uphold the international law through customary procedure legitimate to the international community.
U.S. then proceeds with the unilateral sanctions against Russia and nothing in international law forbids U.S. to do so. However, when U.S. acts unilaterally it means that it is a political decision of the government of the U.S., not of the international community. Moreover, the enforcement of any law (including international law) is effective and has desired effect only if it is applied to all the subjects of the law equally, without discrimination. Simply, the law should be equal to everybody. Hence, the importance of the collective decision on the matter that is represented by the procedures in the UN.
The sad fact is that the U.S. is not applying the same rules and actions to all the states in the world equally when it comes to the international law. The stark example is the occupation of Nagorno-Karabakh and seven adjacent regions of Azerbaijan by Armenia. This occupation have been reflected in the multiple international legal documents and even in the decision of international judicial body that works specifically with international law. Nonetheless, the U.S. have not recognized Armenia as an aggressor state and have not imposed any sanctions on the aggressor despite the fact that this situation is protracted since the early 1990's. On the other hand, U.S. has imposed sanctions against Russia with practically no international legal documents or decisions of international organizations to support them, while ignoring the same situation in Russia's neighborhood.
If U.S. can impose sanctions on the nuclear power and permanent member of UN Security Council it is obvious it can do so in regards to Armenia. Then, that brings us to the conclusion that the point of sanctions of the U.S. was not to uphold the international law and its principles, but to take steps on the international arena that would show discontent with its adversary. Thus, international law would not suffer from the partial or even total lift on the sanctions imposed on Russia, because it was not originally the point of the sanctions in the first place.
Quite frankly the sanctions have proven to be ineffective towards Russia anyway, as they have not changed the position or Russia towards the situation in Ukraine and have yet to show any other effect desired by U.S.
Jacksonian school of thought is winning today in U.S. The starkest indicator of that is that the President of the U.S. is Donald Trump. As opposed to other three major schools (Wilsonian, Hamiltonian and Jeffersonian) Jacksonians are in the vanguard of American populism and promote isolationism in the global affairs of the U.S. The problem with that lies in the fact that after more than seven decades of U.S. foreign policy shaped by the Wilsonian and Hamiltonian schools of thought, sudden withdrawal to isolationism may bring the undesired result to Jacksonians -- war.
The policy of isolationism for Jacksonians comes from their belief that concentration on the national matters would better serve the American people, rather than expenditure of resources of U.S. to shape the "outside" and invest away from homeland. At the same time Jacksonians are skeptical of elites and federal government and prefer to keep federal interference in domestic affairs as little as possible. Jacksonians enjoy populism and react very strongly to anything they may see as a threat to national security. While not wanting to engage in wars or conflict situation abroad, Jacksonians would greet any perceived threat to the U.S. with readiness to defend their believes and their country. Recent events are very indicative of that.
Donald Trump have recently assumed his office as the President of the U.S. and have pushed very fast to sign an executive order that have been nicknamed by the media as the "immigration ban". Trump's order was meant to be seen as his swift follow-up on his presidential campaign promise to strengthen borders and keep certain refugees from entering the U.S. This promise was based on the fear of Islamic terrorism trickling into the U.S. with refugees from Middle East running from war there. It appealed to the Jacksonians very well . Jacksonians have seen these refugees as the direct result of the strong engagement of the U.S. in the Middle East, that was (and is) deemed unnecessary by this school of thought. In their opinion the direct result of such engagement is a threat to the U.S. national security in form of influx of refugees that can bring with them terror directly to Jacksonian "homeland". The same popular vote that have brought Donald Trump to presidency is now also very strongly supporting this executive order of his. It is obvious that this support is Jacksonian-based. Populism, fear of national security, preference of isolation, rejection of the "foreign" -- practically all features are there. However, if such policies continue, this may play a very sad and nasty trick on Jacksonians.
Although, President Trump have issued an executive order that halted some groups of refugees and travel for some Muslim-majority countries, the implementation of the order have been very poorly planned and executed. Even "green card" holders have been affected by the order. These are the people, who have built lives quite legally in the U.S. and have participated (and mostly integrated) in both economy and society. In addition to the protests in the U.S. sparked by the problems that have been created by the order, Middle Eastern countries that were affected are deciding or implementing counter-measures.
On one hand President Trump has made a clear statement that he is dedicated to fighting Islamic terrorism, however on the other hand the situation created by his executive order helps in shaping the negative image of the U.S. in the Middle East, making affairs for terrorist organizations much easier in terms of (for example) recruitment. Many narratives of terrorist organizations are based on the negative image of the U.S. being hostile towards Middle East as a whole and generally towards Muslims. By supporting this negative image with the clumsy executive order, Trump's administration may do more damage to the Jacksonian ideals than actually help upholding them. The negative sentiment towards the U.S. in the Middle East will bring more hatred, more recruits to the terrorist groups, more reluctant allies in the fight against terrorism and thus more concentrated front against the U.S.
Travel restrictions have never been proven as an effective counter-measure against terrorist activity. Today the perpetrator of the act of terrorism can be radicalized through the social media while being already in the country where the attack would be carried out and living there for some time. However, presenting yourself as an opponent of Muslim populations in the Middle East through your direct actions (such as "immigration ban") on the height of struggle against ISIS and similar groups, may lead only towards negative results in the long term. Despite the fact that in the short term such populist measure can ensure you 49% of Jacksonian support.
The direct result of this as with any such "ban" can be that the people who want to "trickle terror" into the U.S. will redouble their efforts, emboldened by newly acquired narratives such as, for example, that the "U.S. is against all Muslims". As more such policies and decisions come, the amount of efforts will pile up and in the end the U.S. will find itself truly besieged by the attempts to import terrorism to its territory, while simultaneously trying to fight radicalization online to prevent homegrown terror cells. Thus, the Jacksonians have a real risk of meeting "war on terror" much closer than they would like to, as a direct result of the actions they now support.
After Donald J. Trump has become
a president-elect of the United States of America there has been an ongoing
debate about largely anything connected to that fact and not least about the
President's vision of the U.S. foreign policy. While there is no lack of
arguments from different experts, most of them agree that the change is coming
to that particular area of the functioning of the state.
The differences in opinions
expressed usually cover details of what may actually change. Max Boot even
argues in his recent article that Mr. Trump's foreign policy might not be that
different from that of Mr. Obama's by nature, however quite different in style.
If Obama wanted to withdraw from the world very carefully, Trump may not be so
subtle and gentle to the existing order and that may lead to the post-American
age sooner than later.
True enough also for the South
Caucasus, where eight years of the Obama administration have brought a clear
sense of withdrawal of the U.S. from the region both in terms of its geopolitical
influence and its general presence as a global power. Today, countries of the
region, as well as the vast majority of other states in the world are trying to
evaluate the consequences of the recent U.S. elections and predict what that
would mean for the policy of the U.S. towards their small but very
strategically located region, surrounded by bigger states such as Russia, Iran
and Turkey.
As the U.S. presidential
transition period is progressing, the states of the South Caucasus are watching
and analyzing the transition through the prism of their own interests. A recent
announcement of the Ambassador of the United States and Co-Chair of the Minsk
Group of OSCE James Warlick on his Twitter account that he would be stepping
down from his position and leaving the State Department has made all the
regional news' headlines in the South Caucasus. This news generated a lot of
interest due to the fact that James Warlick is an American representative in
the Minsk Group that is charged with the meditation and resolution of the
Nagorno-Karabakh conflict between Armenia and Azerbaijan with two other
Co-Chairs from France and Russia. Moreover, at the same time news hit that
Ambassador Warlick will join the Egorov Puginsky Afanasiev & Partners law
firm. He himself described this company as "...Russia's largest and most
prestigious law firm" in a tweet, that he apparently later deleted.
Egorov Puginsky Afanasiev &
Partners law firm (or EPA&P) has been established in 1993 with offices in
Moscow, St. Petersburg and associated office in London. It specializes in
representation of foreign companies in Russia and Russian companies abroad.
Reportedly it is also quite connected to the Russian government and businesses.
The soon-to-be-former U.S. diplomat is planning to join this law firm as a
partner.
Ambassador Warlick has taken the
position of the Co-Chair of the Minsk Group in September 2013 and will remain
in this position until the end of this year. His appointment was made during
the second term of the Obama administration and if the position he is going to
take after should be viewed as any indicator, the attitude of Obama’s foreign
policy advisors towards the main security threat in the South Caucasus becomes
quite clear.
Nagorno-Karabakh conflict has
reaffirmed its position as the main security threat in the South Caucasus
region after the recent escalation in April 2016. That escalation led to both
the short-lived re-intensification of negotiations process in this conflict and
the arms race between Armenia and Azerbaijan reaching new levels with Armenia
having demonstrated that it acquired 9K720 "Iskander" (known in NATO
terminology as SS-26 Stone) mobile short-range ballistic missile systems from
Russia in September 2016. The acquisition of such sophisticated and modern weaponry
by one of the sides of this unstable conflict brings on the pressure to the
other side to keep up and procure equal capabilities both in terms of offense
and defense. 9K720 are capable of a very accurate targeting on the distance of
up to 500 km (approx. 311 miles). In comparison, the distance between capitals
of Armenia and Azerbaijan is around 400 km.
Acquisition of missile systems by
Armenia followed the aforementioned re-intensification of negotiations. This
dynamics in negotiation process have been very visible during the summer and
then gradually went down right after Armenia have demonstrated the systems in
the beginning of fall. Another feature of the said summer was the crisis that
Yerevan have lived through with hostage situation and "Sasna Tsrer"
terrorist group. The pattern clearly indicates that there was a possibility of
the processes around Nagorno-Karabakh conflict to develop in more peaceful way.
Instead, Armenia chose to move on with show of strength and incite even more
serious arms race, simultaneously backing off in negotiations.
Hence, after the two consecutive
terms of the Obama administration, the peak year of 2016 resulted in both the
unprecedented military escalation and gradually new levels of arms race in the
South Caucasus - a general outcome of a foreign policy that aims at withdrawing
from the world and pivoting towards isolationism. If Trump's administration is
to continue within the same general direction in the U.S. foreign policy, it is
quite possible that the processes of militarization and intensification of the
hostilities in the region will pick up a new pace with the more aggressive
withdrawal policies of the new administration. The South Caucasus may see
post-American era much sooner than many other regions in the world.
This may be very harmful to the
U.S. interests due to the fact that South Caucasus is seen as a region that
plays an important part in energy security of Europe that is provided by
Azerbaijan via Georgia and Turkey. The instability that could be brought by the
militarization and hostilities in the region may harm this important energy
security framework. In this context the region awaits the appointment of a new
Secretary of State in Trump's administration and that of a new U.S. Co-Chair of
the Minsk Group as to indicate how things are likely to develop for the region.
The election of Mr. Trump as the
next President of the U.S. has truly brought a lot of change. There is a chance
that if Mr. Trump appoints such people to the aforementioned positions that
will be quite aware of risk factors for South Caucasus and will be able to
adopt a realistic view on current processes and in retrospective, the described
dangerous trend can be stopped or even reversed. The negative stance of Mr.
Trump on lobbying organizations is another factor that may prevent the
Armenian-American lobby from intervening into U.S. foreign policy shaping
process. So change may turn out good after all.
Kamal Makili-Aliyev
Doctor habilitatus of Laws
07.12.2016
The EU-Azerbaijan relations have seen a progressive development throughout the years. Economic relations have seen a lot of growth in terms of hydrocarbons trade and major energy projects. Political side of relations is also steadily developing with EU and Azerbaijan working on the framework agreements on strategic partnerships that will indicate the high levels of relations. Readiness of EU to work on major projects with Azerbaijan, liberalized visa regime and blooming bilateral relations with most of the EU-states are the indicators of the high level of interaction of sides, common interests and values.
Since Azerbaijan have regained its independence
in 1991 it is facing a protracted armed conflict with neighboring Armenia
around Nagorno-Karabakh that have led to disastrous consequences for the region
in terms of humanitarian catastrophe of around 1 million of Azerbaijani
refugees and IDPs that were forced to leave their homes. The aggression of the Republic
of Armenia and its occupation of internationally recognized territories of
Azerbaijan are undisputable and have been recently confirmed by the judgment of
European Court of Human Rights in Chiragov
and others v. Armenia case. Yes, the European international judicial body
with a very high global authority and regard.
Despite
the unsubstantiated arguments of Armenians that Nagorno-Karabakh's Armenian
population constitutes "peoples", that these "peoples" have
voted on the referendum in accordance with Soviet legislation and international
norms, that these "peoples" have right to self-determination, the
European Court of Human Rights acting within the norms of international law
have passed a proper judgment. Of course there are no "peoples of Nagorno-Karabakh"
and there have never been such "peoples". Armenians of
Nagorno-Karabakh are the national minority on the territory of Azerbaijan and
that minority have expelled all the Azerbaijanis not only from former
Nagorno-Karabakh Autonomous Oblast' but from the seven adjacent regions of
Azerbaijan, which is clear from the aforementioned judgment. National
minorities do not have a right to self-determination in broader sense - so
there is no right to secession for them. Otherwise any minority in any country would
be able to establish a new state.
Not a single country or entity from the 15
former states of Soviet Union have used Soviet legislation to leave the Union
or have fulfilled all the legal criteria for that. Instead the Union dissolved
at the end of 1991 and all the former Soviet Republics were recognized in
accordance with the principle uti
possidetis juris in the same borders as they have had them in USSR's
administrative boundaries. Nagorno-Karabakh have been an integral part of
Azerbaijan Soviet Socialist Republic, that in its own turn, was an integral
part of Soviet Union. Nagorno-Karabakh was not a historical part of Armenia. In
XIX century Karabakh khanate have been incorporated into Imperial Russia and
later was a part of Azerbaijan Democratic Republic for a short period of time,
when that Republic became a part of Soviet Union. Due to the fact that this
territory had a Armenian minority living there compactly, in 1923 the decision
was taken by the Soviet authorities to grant the mountainous part of Karabakh
status of Autonomous Oblast'. It has to be pointed out that the same was not
done for the Azerbaijani minority leaving compactly in Zangezur of Armenia.
Those Azerbaijanis have been expelled during war between Armenia and Azerbaijan
in 1990-s and constitute main bulk of refugees from Armenia. Thus all the
arguments about Nagorno-Karabakh "never being part of Azerbaijan" are
quite false. Even XIX century documented accounts of UK Foreign Office indicate Karabakh as part of
country of Azerbaijan inside of Imperial Russia.
Despite all that, EU instead of adopting an
objective stance on Nagorno-Karabakh conflict and condemn the occupation of
Azerbaijani territories by Armenia, have chosen to stay "neutral" and
sacrifice the objectivity for the good relations with both sides of the
conflict. Such approach does not reflect neither the level of cooperation, nor
the developments in relations between EU and Azerbaijan. It has also
jeopardized the view that EU is governed by the democratic values,
international law and objectivity. Being neutral and being objective are not
the same. It is high time for EU to show objectivity and openly condemn the
occupation of Azerbaijani territories by aggressor and show support for the
just position of Azerbaijan in accordance with international law.
Kamal Makili-Aliyev
Doctor habilitatus of Laws
07.11.2016
The game of chess is a very popular sport and entertainment
in both Azerbaijan and Armenia. In Armenia, it is even a compulsory subject in
primary and secondary schools. Yet, despite the fact that this game is so well
mastered at a national level, Armenia finds itself in a very difficult position
on the chessboard of regional politics in the South Caucasus, especially after
the escalation in the area of Nagorno-Karabakh conflict in April 2016.
With two out of its four borders with neighbouring countries
closed and with no direct railway connection with Russia – the largest country
in the South Caucasus neighbourhood, Armenia is by definition in a difficult
geographical position. But the two closed borders with Azerbaijan and Turkey
are solely the result of Armenia’s own actions. Military aggression and the
occupation of Nagorno-Karabakh and seven adjacent regions of Azerbaijan led to
the closure of these borders more than 20 years ago. Despite the recognition of
these territories as belonging to Azerbaijan and condemnation of the aggression
by the international community, Armenia is continuing its occupation while
pretending to want peaceful negotiations.
It is this kind of policy from Armenia that has meant the
protracted efforts to resolve the Nagorno-Karabakh Conflict peacefully have so
far failed to bear fruit. The military escalation in April 2016 served as a
reminder that this conflict is a very real threat to regional and international
security. It attracted a lot of media attention and generated a political
momentum for the larger powers to return their attention to the issue. What is
more interesting is that Armenia’s post-escalation situation can be described
in chess terms as Zugzwang. This is when a chess player finds themselves
in the position that will be worsened by any possible move.
The April 2016 escalation clearly revealed the military
capabilities of Azerbaijan, which delivered an asymmetrical response to the
artillery shelling of its civilian population that lives along the front
between the Armenian and Azerbaijani armies. This was the first time that
Azerbaijan used its military power in a counter-offensive with the aim of
pushing back Armenian artillery positions and securing its civilian
populations. That operation was successful. Azerbaijan was even able to
liberate some of its internationally-recognised territory. This was not the
kind of mythical “failed blitzkrieg” that some analysts tried to paint it as.
Had this been the case, the operation would be directed at very different
geographical positions and would not have targeted artillery positions. Rather,
it would be concentrated on “drilling in” deep into the hostile territory to
establish positions there.
One of the results of April 2016 escalation was the end of
the myth of the ‘impregnable’ Armenian defence on the line of contact. It
showed that Armenia will be unable to hold its military positions on the
occupied territories should Azerbaijan choose to use Article 51 of the UN
Charter and exercise its inherent right to self-defence to liberate the
occupied territories using force. The moves now available to Armenia can only
weaken its position. Going into the military standoff with Azerbaijan and
choosing war will only lead to bloodshed that will end with Armenia’s military
defeat. This would deprive the country of the scarce resources it still has. On
the other hand, choosing peace and still trying to maintain control over the
occupied territories of Azerbaijan through the continued pretence of peaceful
negotiations will worsen Armenia’s already dreadful economic situation and may
weaken its internal situation to the point of making it an altogether failed
state.
It is clear that whichever move Armenia chooses, be it war
or peace, its situation will only deteriorate. On the other hand, withdrawal
from the occupied territories of Azerbaijan may give Armenia the chance to
abandon its hopeless chess game and bring peace and economic development to the
region.
Kamal Makili-Aliyev
Doctor habilitatus of Laws
04.08.2016
My new book that embodies the collection of articles published during my first five years of work as an analyst in the Center for Strategic Studies under the President of the Republic of Azerbaijan. The digital version can be found here.
Kamal Makili-Aliyev
Doctor habilitatus of Laws
20.06.2016
My joint article with a Pakistani colleague called Pakistan-Azerbaijan Economic and Defense Cooperation that we wrote on the topics of bilateral cooperation between our countries can be found here.
Kamal Makili-Aliyev
Doctor habilitatus of Laws
24.05.2016
It is actually very simple. Contrary to the statements made in the mass media when it covers the Nagorno-Karabakh conflict, this mountainous region of Azerbaijan is not disputed in any way. It is occupied. So says the international law and recently that same opinion follows from the ruling of the international judicial body - European Court of Human Rights.
Despite the allegations of Armenia (that have
in fact occupied sovereign territory of Azerbaijan) that the remaining
ethnically Armenian population of the region has exercised the right to
self-determination, it has been proven false again and again. For once,
Armenians living in Nagorno-Karabakh are not "people" in the meaning
of UN Charter to enjoy such a right. Armenians have already exercised that
right in Armenia, where they have an internationally recognized state. Thus,
making them a national minority on the territory of Azerbaijan and not some
kind of "Nagorno-Karabakh people". Otherwise, Armenians would have a
right to self-determination in U.S., Russia, France and other countries where
they have large communities, creating a
horde of small states. This is simply illogical.
No state have recognized the separatist entity
in Nagorno-Karabakh, including Armenia. No state have recognized Armenian
claims on this region as well. So basically there is no dispute on the
attribution of the region.
The European Court of Human Rights have
actually engraved all of the above into the international jurisprudence. On 16 June 2015 Grand Chamber of the European
Court of Human Rights have come up with two judgments on the reciprocal cases Chiragov
and Others v. Armenia and Sargsyan v. Azerbaijan.
Both cases seemed to have very close and even
balanced judgments and that Court
intended not to stir political side of the question. However, closer
examination shows that this is far from reality and it was impossible for the
Court to escape some very serious issues related to the status quo in Nagorno-Karabakh.
For example, in Chiragov v. Armenia case, Court
addresses the separatist entity "Nagorno-Karabakh Republic"
specifically in brackets to show that it is not in any way recognized
officially. It also establishes the fact that there are no Azerbaijanis left in
the occupied territories of the former Nagorno-Karabakh Autonomous Oblast' as
well as in the adjacent seven regions. Thus, basically acknowledging that
Armenians were able to carry out complete ethnic cleansing on those
territories. Those ethnic cleansings resulted in around 750.000 internally
displaced persons living in Azerbaijan now and additional 250.000 refugees of
Azerbaijani origin expelled from Armenia itself.
Moreover, the Court recognizes Armenian
military and financial control over so-called "Nagorno-Karabakh
Republic" and comes to the opinion that Armenia has "effective"
control in Nagorno-Karabakh. Thus, Armenia have been found in violation of the
corresponding articles in the aforementioned case. Precisely due to the
effective control it has over Nagorno-Karabakh.
So if one state has an "effective
control" over the recognized territory of the other state there cannot be
any doubt of the occupation. Therefore there cannot be any dispute over the
attribution of the Nagorno-Karabakh region per
se. Occupation of someone's sovereign territory does not make that
territory disputed in anyway.
The conflict itself being a territorial can be
resolved. Even ethnic complication can be lifted given the right attitude
towards the resolution. The rights of the Armenian minority to culture,
language and religion can be guaranteed without violation of Azerbaijan's
territorial integrity. Armenians can be equal citizens of Azerbaijan enjoying
minority rights and largest possible autonomy there is. Azerbaijan have already
expressed this proposal many times through its government.
Interestingly, mass media is somehow following
up on twisting the real discourse and disregarding all of the international
legal data on the subject. Basically trying to be "neutral" when
reporting on the conflict. However, neutrality does not in any way mean
objectivity. And objectivity is what the image of the Nagorno-Karabakh Conflict
really lacks today. So the discourse that mass media shapes now, instead of playing in favor of conflict
resolution actually helps the hostilities escalate.
If mass media will continue to shape its
"neutral" discourse and will not begin to lean on the facts, it will
only embolden the Armenia's position of staying on their grounds of occupation,
lack of will for resolution, preservation of status quo and destructive stance on violence as opposed to the
compromise that would allow Armenia to ensure the rights of its minority in
Azerbaijan as true caring kin-state.
Bryant McGill very sharply pointed out that:
"Where wise actions are the
fruit of life, wise discourse is the pollination". In order for the resolution of the
conflict to bring some fruits, the discourse should first of all turn to the
wise one. While the Nagorno-Karabakh is not a disputed region of Azerbaijan, the
discourse around it should become the subject to a very profound change.
Kamal Makili-Aliyev
Doctor habilitatus of Laws
11.05.2016
My article on legal status of Caspian Sea in ‘The Caspian Sea Chessboard: Geopolitical, geo-strategic and geo-economic analysis’ - reviewed in BitzPol Affairs and can be found here.
Please read my new article on Caspian 'Sea' and Its International Legal Status published in new book by ISPI (Italy) and Center for Strategic Studies (Azerbaijan) - "The Caspian Sea Chessboard: Geo-political, geo-strategic and geo-economic analysis" Carlo Frappi and Azad Garibov eds. that can be found here.
Please read my new article on Security Sector Reform Action Plan for Azerbaijan written in cooperation with Czech colleague Vít Střítecký in new book by Centre for European and North Atlantic Affairs - "Security Sector Reform Action Plans for the South Caucasus Countries" B.Padrtová ed. that can be found here.
My new book called "Nagorno-Karabakh Conflict in International Legal Documents and International Law" was just published by Center for Strategic Studies under the President of the Republic of Azerbaijan (SAM). For those interested in reading it's digital copy can be found here.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
27.05.2014
It is well
understood that NATO presence in South Caucasus is very limited due to the
geopolitical factors of presence of such regional players such as Russia and
Iran. Reluctance of NATO to engage South Caucasian states more closely after
the events of 2008 during the Russian-Georgian war is understandable, however
it may seem overcautious. At the same time if the situation changes and there will
be expectations of some sort of agreement on Nagorno-Karabakh problem, security
guarantees will play one of the major roles in stabilizing and negating
possible tensions that the process of resolution may bring to the region.
NATO has considerable
experience when it comes to peacekeeping operations and maintenance of peace
and security. Balkans, Libya and Afghanistan are some of the examples of such
activities. Positive and negative aspects of these experiences maybe still
debatable, however it is undeniable that they have showed that NATO is capable
of carrying out such operations even in the large scale missions like
Afghanistan. These situations are also indications of the changing role of NATO
as security organization. The threats to North Atlantic area do not originate
from “state-actors only” anymore. Non-state actors are the new challenges to
the global security – terrorism, cyberwarfare and weapons of mass destruction
(WMDs) are the new threats that NATO faces. The ability of organization to
acknowledge and adapt to new realities will play crucial role in the future of
NATO. NATO will have to redefine the approaches to deadlocked conflicts and
non-conventional threats to be able to address the pressing issues of regional
and international security.
Arguably as the
situation changes with the nature of threats, so does the situation change with
their scope. In the new age of security frameworks, conflicts in non-member
states bordering NATO, start to become new security challenges for the NATO as
the possibility of unconventional warfare spill-over into territories of NATO
members is a reality and not a myth anymore. One such example is the situation
in Syria.
Nagorno-Karabakh
is another conflict that is on the border of NATO. Though far from the active
phase it still remains a threat to the international peace and security, and
thus to the NATO as well. Ultimately, NATO should be interested in the
resolution of the conflict and engagement in the situation with intent to help.
However geopolitical realities do not allow for such a close engagement and
presence.
What can be done
in such a situation? First of all there is a lack of understanding and
compromise in terms of strict “red lines” drawn between NATO and major regional
power in the region of South Caucasus – Russia. Naturally, given the changing
nature of threats to the international security NATO and Russia should
cooperate to address unconventional threats from non-state actors that affect
both parties. The same goes to protracted unresolved conflicts on their
borders. At the same time it is understandable that both NATO and Russia have
their separate political and security agendas that may be in conflict with each
other.
Nonetheless,
when it comes to Nagorno-Karabakh conflict the compromise needed that may
satisfy all the interested parties. One such compromise may be a joint
peacekeeping operation of NATO with Russia-led CSTO. In that way both
organizations would have equal amount of participation to keep each over in
check and balance. To satisfy parties to the conflict, namely Armenia and Azerbaijan,
the participation of troops from the countries of the OSCE Minsk Group
co-chairs as well as from the conflicting states should be excluded to ensure
impartiality of forces. At the same time all these aforementioned states may
provide financial assistance to NATO and CSTO troops respectively thus ensuring
their own participation and interests in the peacekeeping efforts after some
kind of agreement reached around Nagorno-Karabakh.
Such concept may seem futuristic; however, the
only way to address the new era of threats to international peace and security
is cooperation between military alliances of different political allegiances.
If a proper understanding could be reached, these prospects may not seem
fictional anymore. In any case, compromise over common security concerns may
lead to the transition in the Nagorno-Karabakh conflict and stabilize the
security situation in the South Caucasus.
Kamal Makili-Aliyev
Doctor of Laws (LL.D)
25.01.2014
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