An Illegal Republic: Aspects of Formation and Continuity of the Legal Identity of Karabakh Armenians

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

School of Blogal Studies

Kamal Makili-Aliyev

Doctor of Laws

11.05.2023

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Contested Territories and International Law becomes an Open Access publication!

 

This book is now in open access and can be downloaded here.

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Happy New Year 2023!

 

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New article on the weaponization of Sarsang reservoir in the Nagorno-Karabakh conflict

 

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.

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Autonomy is one way in which some of the problems in Armenia-Azerbaijan relations can be resolved

 

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 101^st 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

Commonspace.eu

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Happy New Year 2022!

 

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Will international law help resolve the Karabakh conflict?

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

    Eurasianet

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New article on the role of Azerbaijan in the Non-Alligned Movement

 

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.

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Interview on the Nagorno-Karabakh conflict at The Perspective

 

My interview on the Nagorno-Karabakh Conflict has been published by The Perspective Journal. Read the digital version here.

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The True Source of Troubles Behind the Nagorno-Karabakh Conflict

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

       The National Interest

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Panel: Will Armenia-Azerbaijan flare-up turn into a wider war? - China Radio International discussion

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:

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Happy New Year - 2020

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NEW BOOK OUT NOW!

My new book on the Nagorno-Karabakh Conflict and the Aland Islands precedent called "Contested Territories and International Law" is out now! Available here:

ROUTLEDGE

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BOKUS

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NEW BOOK COMING OUT!

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

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Research note on Nagorno-Karabakh Conflict

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.

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Happy New Year - 2019

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Regional Actors East of NATO

My new article on Regional Actors East of NATO (in German). Read digital version here.

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Development and Importance of Constitutional Justice in the Republic of Azerbaijan

My new article on Constitutional Justice in Azerbaijan. Read digital version here.

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Happy New Year - 2018

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Negative effect of Trump's lifting sanctions imposed on Russia is overrated

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.

Kamal Makili-Aliyev

Doctor habilitatus of Laws

04.02.2016

        Modern Diplomacy
Huriyyet Daily News

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Jacksonians may want isolation, but risk leading U.S. to war

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.

Kamal Makili-Aliyev

Doctor habilitatus of Laws

04.02.2016

        Modern Diplomacy

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Happy New Year - 2017

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Trump, change and the new level of militarization in the South Caucasus

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

         Modern Diplomacy

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Time for the objective stance of EU on Nagorno-Karabakh

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

        EurActiv Blog

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War or peace: Armenia’s dead end

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

        EurActiv

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