My article has been published in the Studies of European Affairs journal. It is called "Revisiting Sweden’s Approach to Human Rights in Foreign Policy." The article looks back at Sweden's human rights approach in its foreign policy and reevaluates its performance since 2009 Alison Brysk's assessment. It is now open access and can be downloaded here.
The article addresses a significant and thought-provoking topic. However, it is written predominantly from an Armenian perspective, which frames Armenia as the victim in this context. This approach, while offering insight, overlooks the broader geopolitical and historical dimensions of the Nagorno-Karabakh conflict that are essential for a balanced analysis. As such, the article raises several points of contention:
1. Political Context: Armenia’s current situation is rooted in its unlawful occupation of internationally recognized Azerbaijani territories from the early 1990s until late 2020. Presently, Azerbaijan does not occupy any Armenian territory. Instead, the ongoing border disputes stem from Azerbaijan’s armed forces reclaiming their internationally recognized territories and reaching an approximate, yet previously undelimited, border with Armenia. The lack of delimitation arose from Armenia’s prior refusal to recognize the former Soviet administrative boundary as legitimate, compounded by its occupation of territories beyond that border. These disputes are now subject to an ongoing delimitation process.
2. Legal Considerations: Cases potentially under the jurisdiction of the International Criminal Court (ICC) are already being investigated and prosecuted by Armenia, which has demonstrated its willingness and ability to address these matters. Given the ICC’s principle of complementarity, its jurisdiction in this context is highly questionable. This legal limitation, rather than political pressure, explains Armenia’s decision not to proceed further. Political constraints did not prevent Armenia from initiating a case before the International Court of Justice (ICJ). Furthermore, it is worth noting that Azerbaijan has prosecuted its own citizens for violations of humanitarian law during the 2020 conflict and has called on Armenia to do the same. However, Armenia has consistently refused to prosecute its own nationals, suggesting a mutual reluctance to address these legal violations comprehensively.
3. Factual Accuracy: The claim of forced deportation of Karabakh Armenians does not withstand close scrutiny. During the conflict in September 2023, there was a week-long period following the cessation of hostilities when no civilians or military personnel were harmed, and fighting had ceased entirely. During this time, the Armenian population’s evacuation to Armenia was organized in a highly coordinated manner by the Armenian separatist authorities, who remained in charge at the time. Azerbaijani armed forces had targeted only the separatists’ military infrastructure and refrained from entering heavily populated areas. There is no evidence of threats, coercion, or ultimatums issued by Azerbaijani authorities to compel Armenian civilians to leave. On the contrary, Azerbaijani authorities documented those leaving through the border checkpoint and declared that individuals were welcome to return under Azerbaijan’s legal framework. A dedicated website was even created to facilitate registration for return and provide proper documentation. Therefore, the assertion of forced deportations lacks substantial evidentiary support.
These are just some points to consider in connection to this topic. That said, I want to thank the author for a very interesting article about a conflict that is understudied in the literature.
Kamal Makili-Aliyev
Doctor of Laws
23.01.2025
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My latest contribution to The 2023 International Review of Constitutional Reform which discusses an important constitutional reform to the Ombudsman Law in Azerbaijan is now in open access and can be downloaded here.
My latest article "An illegal Republic: the formation and continuity of the collective legal identity of Karabakh Armenians" is now in open access and can be downloaded below:
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At the end of the 1980s, the Soviet Union was in turmoil. One problematic instance of the overall crisis was the conflict breaking out between Armenians and Azerbaijanis over the Nagorno-Karabakh Autonomous Oblast (NKAO). NKAO was an enclave populated predominantly by ethnic Armenians within the territory of the Azerbaijan Soviet Socialist Republic (AzSSR). Its administration, with the support of the authorities of the Armenian Soviet Socialist Republic (ArSSR), was trying to change the status of NKAO, remove it from AzSSR and include it in ArSSR. This met with the resistance of the authorities of AzSSR and the leadership of the Soviet Union in Moscow. What has become known as the Nagorno-Karabakh conflict is one of the most difficult and violent conflicts that continues as a result of the dissolution of the Soviet Union.
While the Nagorno-Karabakh conflict has not attracted as much attention as some other contemporary conflicts, a small but interesting body of scholarship has built up around it. However, even this important work has largely overlooked the question of the legal identity of Karabakh Armenians. The significance of this identity is that it was formed in very specific conditions. Unlike some other unrecognised or partially recognised states (for example Kosovo, Taiwan, South Ossetia or Abkhazia), Karabakh Armenians’ political entity “the Nagorno-Karabakh Republic” (hereinafter NKR, but also called “the Republic of Artsakh”) was created in a way that made it impossible to call it even a de facto state, unable to meet the criteria of the Montevideo Convention. And yet, NKR presented itself as a state (although based on the above an “illegal republic” may be a better term) and was able to establish institutions that helped in forming the legal identity of Karabakh Armenians.
Legal identity in a space between two states
The phenomenon of the legal identity of Karabakh Armenians that formed in a space between two conflicting states (where the entity stuck in that space cannot demonstrate clear legal features of a state) requires closer inspection. This is because the current situation of Karabakh Armenians and the NKR helps us to understand the interdependence of legal identity per se and a functioning state. This can be done by describing and discussing the formation of legal identity in such an entity, what this type of legal identity consists of, what kind of challenges the entity and associated legal identity face and what the development of legal identity looks like, and can look like, in the future. As such, legal identity is understood and discussed here both narrowly – as recognition of a person before the law – and in a broader sense: as the ability of a group to form a legal identity through establishing laws and institutions.
For Karabakh Armenians forming their own legal identity was a crucial question. Even its kinstate Armenia did not recognize NKR and that would mean that Karabakh Armenians would otherwise remain in a legal limbo. They were also hoping that a clear and visible legal identity would pave the way for the recognition of NKR as a state. Consequently, between 1994 and 2020, Karabakh Armenians created institutions resembling those of a state, issued identification documents to its population, collected taxes (although it is unclear how much those were integrated with Armenia’s finances), established a system of social welfare, conducted local elections and built up a body of legal acts, including a constitution and other parliamentary acts. This allowed the population of the territory to have access to some rights and obligations in a similar way that would be expected from a recognised state. However, there were significant challenges to this process, and they came both from Armenia and Azerbaijan.
One of the main challenges was that the Republic of Azerbaijan claimed NKR as occupied territory under international law and refused to recognise its sovereignty as a republic. It continues to contest the legal identity of Karabakh Armenians. Likewise, preventing any kind of recognition of NKR has become a central aspect of the foreign policy of Azerbaijan. Simultaneously, Karabakh Armenians have no physical access to Azerbaijan, as these people remain isolated from Azerbaijan by the line of contact between armed forces. These significant challenges have made it impossible for NK Armenians to utilise their legal identity outside the confines of the illegal republic.
To overcome this situation, Karabakh Armenians sought help from Armenia, a kinstate to the population of the territory. Armenia was able to provide an alternative legal identity to facilitate the contacts of NK Armenians with the international community. However, this creates another challenge and puts Armenia in a position to contest the internal legal identity of Karabakh Armenians, and indeed, even their autonomy when necessary. The territory was already economically, politically and militarily dependent on Armenia, but control over the external expression of its legal identity has allowed Armenia to effectively control the narrative NKR presented to the outside world.
Moreover, the international community, through the medium of the European Court of Human Rights has refused to recognise the identity of Karabakh Armenians. In its judgment in the case of Chiragov et al. v. Armenia, the Court found criteria of occupation in the conduct of Armenia in the territories of Azerbaijan, including those claimed by NKR. This made the construction of the legal identity of Karabakh Armenians legally questionable. Furthermore, in 2020 when Armenia was militarily pushed out from Azerbaijan and NKR lost most of its claimed territories, the NKR and Karabakh Armenians’ legal identity became extremely vulnerable. Presently, the chances of independence for NKR are virtually non-existent and the influence of Armenia is significantly lower. Moreover, Armenia does not strive for the independence of NKR anymore, abandoning this goal in favor of building peace with Azerbaijan.
(In)dependent legal identity
Nonetheless, even after the change in status quo in 2020, Karabakh Armenians have been able to preserve their internal legal identity. This shows that their legal identity was not totally dependent on Armenia’s influence and protectorate. Nor was it impossible to construct an internal legal identity in an entity that lacked the legal features of a state. This may to a degree, present a challenge to Hannah Arendt’s predominance of nationality as legal identity. At the same time, such legal identity is exceptionally vulnerable. The recent blocking of the only road that connects the remains of NKR to Armenia shows how easily states can prevent external expressions of legal identity. Additionally, the internal legal identity of Karabakh Armenians is directly dependent on the outcome of the conflict between Armenia and Azerbaijan.
The negotiations between Azerbaijan and Armenia hint at the reintegration of the illegal republic of NKR into Azerbaijan, however, with the rights and security of Karabakh Armenians to be guaranteed in the process. This type of resolution seems to point to the possibility of the legal identity of Karabakh Armenians being retained in some form even within the confines of the state from which they wanted to separate. If so, this new stage and transformation in the Nagorno-Karabakh conflict could potentially yield even more insights into the development of legal identity in unusual state-like entities and the possibilities of retaining unique legal identities even if their associated state-like institutions are dismantled.
Armed Groups and International Law
Kamal Makili-Aliyev
Doctor of Laws
11.05.2023
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My new article called "Weaponization of Sarsang Reservoir in the Nagorno-Karabakh conflict" was published in the Transactions of the International Academy of Science H&E 2020/2021. Vol.6, Innsbruck, SWB (2022). Read the digital version here.
After
decades, there finally is a reason for optimism about the resolution of the
Nagorno-Karabakh conflict. Negotiations are advancing, and normalization of
relations between Armenia and Azerbaijan – like reopening transport links and
cooperating on the border – is proceeding even without an agreement on the
thorniest issue dividing the two sides: the fate of Karabakh itself.
The Armenian
government also has made a fundamental shift in its focus of negotiations, away
from territorial claims on Karabakh and toward guaranteeing the rights of the
Armenians of Karabakh to live freely and safely.
How to
reconcile the issues of the territorial integrity of states with the rights of
minorities within those states has long been the focus of international
scholarship on conflict resolution. In successful cases, this is achieved
through some form of autonomy for the minority within the central state.
International law does not envision the
right to self-determination for minorities per se. However, the Helsinki
Final Act (which was used by the OSCE as a legal framework in negotiations led
by the Minsk Group) is the international agreement that came closest to
establishing a concept of internal self-determination that can be converted
into guarantees for minority rights. It envisages “the equal rights of
peoples and their right to self-determination” only within “the relevant norms
of international law, including those relating to the territorial integrity of
States.”
In the case of Armenia and Azerbaijan, however, both sides have been wary of the notion of autonomy for Karabakh Armenians. Armenians don’t trust the Azerbaijani state to respect their rights, even under a regime offering autonomy, and Azerbaijanis fear that autonomy would merely be a stalking horse for Armenians to again pursue separatism.
For years,
Azerbaijan had offered some sort of autonomy to Karabakh Armenians within its
central state. Following the victory in the 2020 war, this offer was
unconditionally revoked. The Karabakh Armenians, meanwhile, have strongly resisted
Yerevan’s gestures toward considering reintegration into Azerbaijan, regardless
of the kind of autonomy they might be granted by the central state.
But what is
the alternative? Armenian irredentism and separatism would only prolong the
conflict, as would a forceful Azerbaijani imposition of its sovereignty over
the territory. In the latter case, even if not a single Karabakh Armenian were
harmed in the process, it would nevertheless likely result in a mass exodus of
the population from their homes. Neither result can lead to real conflict
resolution and a lasting peace.
Still,
autonomy is a viable compromise that can lead to a lasting peace when it is
implemented carefully and properly, with the aim of bringing the two nations
together.
One good example
is the Aland Islands, a Swedish-speaking autonomous region within Finland. That
arrangement celebrated its 101st birthday this year as a successful
means of bringing Swedes and Finns together politically, culturally, in
education and interpersonal relations. Its secret? Carefully thought-out structures
for separating powers between the autonomy and the central government, respect
for minority rights, and security guarantees in the form of demilitarization
(including, no local conscription or military bases) and neutralization (the
autonomy cannot participate in wars neither passively, nor actively) of the
region.
Even more
important, however, is a key mechanism allowing for even small day-to-day
questions about the separation of powers to be resolved. There is a committee
of five lawyers – two from each side and one chair who is accepted by both
sides. The chair also serves as a liaison between the central state and
institutions of autonomy. The committee addresses the issues (usually minor
ones, like how the central post-office and local post-offices should separate
their budgets, or who is responsible for the trash stockpiling and utilization
on mid-level between autonomy and the state, etc.), before they can turn into
major crises, so the two sides work on solutions rather than on accumulating
grievances.
In the case
of Karabakh, some examples from Aland that would represent the minimum
requirements of a workable autonomy would be: a special regime for language
rights (the use of Armenian in schools, media, local government, and
recognition of Armenian as an official regional language), cultural rights
(Armenians would hold property rights on all cultural objects, proceeds from
tourism), exclusive rights to real estate (in local municipalities or
territorially), local control over tax revenues and subsidies from the central
state. All of these rights will have to be a part of an international treaty
guaranteed by regional states and not subject to change without the minority’s
consent.
The same
treaty should guarantee the complete demilitarization and neutralization of
Karabakh: it could not host any military bases, military service for members of
the autonomy cannot be mandatory, and weapons would be restricted to special
units of local police forces.
Such is a
workable minimum (based on Aland Islands experience) that would be required. However,
it should always be possible to negotiate an extension of the political and/or
territorial side of autonomy as well as adjust the regime in accordance with
the needs of the minority and central state. Such questions can be sensitive,
as the local autonomy structures will have to be managed by some kind of its
own local authority.
Furthermore,
with time and the normalization of relations between Armenia and Azerbaijan, there may come a return of Azerbaijani minority to Armenia and vice versa. If
such a process will take place, the establishment of a sister autonomy in Armenia
on the same conditions (whichever they will be at the time) for Azerbaijanis
would only strengthen the reciprocity effect that autonomy produces, bringing
people even closer by caring for each other’s minority and establishing more
points of interdependence. This have also happened in the relations between
Sweden and Finland and Finnish population is the largest minority in Sweden
today. The same logic can be extended even to the contentious issue of
enclaves, eliminating the need to find complex solutions and concentrating
instead on the reestablishment of Armenians and Azerbaijanis in their
homelands.
All of this may sound utopian and unworkable for the Caucasus, where hatred and grievances have built up over decades. But 101 years ago, mistrust also was deep between Swedes and Finns. There have been political disagreements between autonomy and the central state, people in Finland refused to recognize the Swedish language as valid in Finland, people in the Aland Islands mistrustful of all kinds of questions including if Finland treats them as second-class citizens. There have been changes to the autonomy structures twice in the previous century and another revision is coming, adjusting various aspects of the autonomy regime. Still, this arrangement survives as a successful example of how two nations were able to overcome mistrust by working together.
As Armenians and Azerbaijanis are finally trying to build a lasting peace, autonomy can be a powerful tool that brings people together instead of dividing them. It is important to give it a chance.
Kamal Makili-Aliyev
Doctor of Laws
07.06.2022
On September 16, Armenia submitted a complaint to the International Court of Justice (ICJ) against Azerbaijan, alleging ethnic discrimination of Armenians in breach of Azerbaijan’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Armenia alleges that Azerbaijan discriminated and persecuted Armenians through a variety of methods including hate speech, atrocities that are condoned and rewarded, a policy of ethnic cleansing, and the destruction of their cultural heritage.
This was met with skepticism, and even dismissal, from many commentators, who seemed to see it either as a PR stunt on Armenia’s part or simply an act of spite, an underestimation of the move perhaps grounded in the bitterness that continues to fester following last year’s war. That narrative was only strengthened when Azerbaijan responded that it would file a mirror complaint, with similar allegations, to the same court.
More cautious voices suggested that it may be a tactic aimed at securing provisional measures to protect Armenia’s service members who remain detained in Azerbaijan. The CERD is one of the few treaties to which Armenia and Azerbaijan are both parties, and that also offers the possibility of judicial arbitration and application of provisional measures in certain cases.
Indeed, Armenia’s application does request measures to protect and release the prisoners. But the likelihood of the court approving such measures is low, given the specific obligations laid out in the CERD, and Armenia’s lawyers are no doubt aware of that.
The implications of Armenia’s complaint can in fact become far more wide-reaching and could have implications for the long-term political resolution of the conflict.
The fundamental disagreement between the two sides is that Azerbaijan considers the conflict effectively resolved as a result of last year’s war and that it has reestablished sovereignty over all of its internationally recognized territory. Armenia, meanwhile, views the status of Nagorno-Karabakh as unresolved and the subject of diplomatic negotiations to come. It is this issue that Armenia seeks to target – albeit indirectly – in its complaint to the ICJ.
How would alleged ethnic discrimination by Azerbaijan against Armenians be related to the status of Karabakh? At issue is the principle of “responsibility to protect,” or R2P. According to this principle, spearheaded by former United Nations Secretary-General Kofi Annan, the international community is obliged to intervene in cases of grave human rights violations on a massive scale. While the principle is not yet formally part of international law, it has gained popularity among some international lawyers and human rights activists.
In its own turn, R2P policy is often connected to the notion of “remedial secession” – the theoretical justification for the secession of a minority population from a state in the case that it faces total annihilation if it remains within that state’s borders.
These policies and theories, while not formally part of international law, are gaining support. The case of Kosovo, which broke away from Serbia and is now partially recognized as an independent state, is the most prominent example of a secession justified by this line of thinking.
If the ICJ were to side with Armenia in this case, it would lend credibility to the political claims that the status of the territory should be reconsidered by the international community. That would be a blow to the legal position of Azerbaijan, even if it doesn’t produce direct legal consequences.
Azerbaijan’s mirror complaint, even if also approved by the court, would not produce the same effect as there is no longer an Azerbaijani minority compactly settled in Armenia.
This would create an asymmetric effect wherein twin cases are considered by international arbitration, and both won by the applicants, but the results of which in effect favor only one of the sides. This has already happened before: in the case Chiragov v. Armenia, previously the most significant case related to the conflict in international law. In that 2015 judgment, the European Court of Human Rights ruled that Armenia exercised “effective control” over the territory of the conflict and had a military presence there (so-called “boots on the ground”), thus indirectly confirming it as an occupying state. Armenia won its mirror case, Sargsyan v. Azerbaijan, as the European Court found that Azerbaijan had violated inter alia Sargsyan’s property rights. But because Sargsyan lived in Azerbaijan’s internationally recognized territory, it did not have the same implications vis-à-vis occupation.
Azerbaijan could nevertheless still come out the winner in this case. It will be difficult to prove state discrimination against Armenians when Azerbaijan did not exercise effective control over the territory of Karabakh and thus had no jurisdiction over Armenians. Moreover, Armenia would have to prove that the rhetoric of Azerbaijan directed at Armenia and Armenians living outside Azerbaijan has a direct effect on the Armenian community living inside Azerbaijan but outside the territory of the conflict. Furthermore, basing its case on the fact that Azerbaijan by default practice bars (with some rare exceptions) ethnic Armenians from entering the country may be difficult legally, as generally international law gives wide authority to states to decide whom to allow inside their borders. Importantly, an Armenian defeat in the ICJ would further solidify Azerbaijan’s legal case on the conflict in the international community.
Nonetheless, Armenia’s legal challenge should also be seen in a positive context, as it offers cautious hope that the road to ending this conflict will go through the courtroom and not through the battlefield.
Kamal Makili-Aliyev
Doctor of Laws
23.09.2021
My new article called "The Role of Azerbaijan in the Non-Aligned Movement Through the Lens of International Law and Security" was published in the book The 60th Anniversary of the Non-Aligned Movement (2021). Read the digital version here.
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.
I 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:
Research note on Nagorno-Karabakh Conflict
Contested Territories and International Law becomes an Open Access publication!
New article on the weaponization of Sarsang reservoir in the Nagorno-Karabakh conflict
Право народов на самоопределение к армянам Нагорного Карабаха не относится. Как не крути.
New article published in recent collection of papers Vol. I “Legal gaps and the completeness of law“
New article published in Citizenship Studies: "An illegal Republic"
New article published in The 2023 International Review of Constitutional Reform
NEW BOOK COMING OUT!
Happy New Year 2025
Happy New Year 2024
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