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.
Panel: Will Armenia-Azerbaijan flare-up turn into a wider war? - China Radio International discussion
1I 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
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.
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.
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.
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