The atrocious betrayal of Armenian ambitions in Nagorno –Karabakh - the “painful deal” among democracy, self-determination and territorial integrity

The long-standing dispute ravaging Nagorno –Karabakh enclave, elapsing about four decades, since ‘80s up to nowadays, is politically conceived as a regional conflict potentially detrimental on a planetary scale because of the possible aftermaths that could involve a stronger repressive intervention of the allied powers and that has shaken and worried the international community.

Giving a kick start to the analyses of the events, we couldn’t consider the partnership tying Russian and Armenian Republic, one of the satellite States born from the ruins of the SSRU. Armenia has been, in fact,  disappointed  in its ambitions in occasion of the last reached “painful agreement”. In the international legal order, it seemed to have been mainly awaken the interest on the diatribe opposing  Azerbaijan, a state with a Muslim majority, part of SSRU until 1991, the so-called Soviet Azerbijian, to Nagorno –Karabakh Autonomous Oblast’ (NKAO), as, since Feb 2017 referendum, what has been called as “Republic of ArtSakh”[1], with a new constitution based on a presidential government, aiming to targeted territorial claims in comparison with the past, pursuing independent and secessionist goals, even from Armenia itself, has shown to effectively lack the pre-requisites envisaged by the “Montevideo Convention on the Rights and Duties of States”, signed in Uruguay on Dec 26, 1933. This focal convention concerning Statehood was generally accepted as international customary law. In facts, not only NKAO hasn’t been enshrined  in the list of the so-called, properly said, States but it hasn’t been even recognized neither by the international community, nor by Armenia itself.

The point is that, although Armenians represent the absolute majority in Nagorno–Karabakh, the principle of territorial integrity prevails on that of self-determination, in favour of the doctrine of the uti possidetis and the principle of inviolability of the borders, in the hope to leave unchanged the situation created after the SSRU dissolution, beyond the identity belongings, and the traditional, cultural and social ones.

That of the Armenian population is, thus, a claim of the ius cogens right of self-determination of people, as such not derogable by any contrary agreement. This principle, even if proclaimed in 1945 by the UN Charter, had a slight effectiveness. By virtue of UN Charter[2] clarifies that among the purposes of the UN there’s that “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. Principle further reaffirmed by the art. 55, at the beginning of the Chapter IX “International, Economic and Social Cooperation” and by the art. 76 that underlines how it must be taken in due account the “freely expressed wished of the people concerned” in the territories that undergo the trusteeship administration[3].

Since 1960s the General Assembly has started a real change, by the res.  1514 , “Declaration on the granting of independence to colonial countries and people”[4].

The ICJ will give, then, full execution to the principle, in a series of sentences to try a reconciliation in situations of conflict. Since then, it’s recognized to the people undergoing a foreigner domination the expectation to become a State, or to associate or integrate itself  to another independent State, by choosing its own political regime. The relevance of this principle is even more understood if it’s considered that the international subjectivity, as capacity to be the addresser of rights and obligations, is not recognized directly to the people but to the State, that exerts an effective control on a given territory and upon the individuals present on the same. 

The self-determination, instead, face the limit of territorial integrity, proclaimed by the art. 2, par. 4 of the Charter, according which the State Members are forbidden to use force. In the diatribe between the two nations, it can’t be forgotten that, even if inhabited by a community of Armenian ethnicity, the Nagorno Karabakh doesn’t intend to be part of the Armenian State. After a regular referendum, held on Dec 1991, it declares its own independence from the SSRU and the 6 Jan 1992 proclaimed the Republic of Nagorno Karabakh, internationally not recognized, even if the recognition is not per se a constitutive element of juridical personality but has just a political value, testifying the will of the States to undertake international relations with it. About this topic, the Security Council proclaimed a series of resolutions in 1993 (822, 853, 874 and 884), in which Nagorno Karabakh has been qualified as a contested territory, surrounded by seven Azeri districts. Thus, departing from this UN organ, it’s been considered as an outright military occupation by the Armenian State. The proposed solution. since then. has been the restitution of at least five of the seven districts connecting Karabakh and Armenia and ensuring the territorial continuity.

In this oblast’, where over the years have occurred Armenian ethnic cleansings, polgroms, persecutions and gross violations of human rights, last 10 November 2020 agreement kept on leaving the population unsatisfied. In order to establish order in the South Caucasus region, after three ceasefires, a failed agreement on humanitarian purposes and several rounds of negotiations, that never resulted in a treaty peace, the matter seems up to now to have been officially temporarily closed in the palaces of power. On this occasion Armenia and Azerbaijian finally agreed to halt the hostilities and, according with the joint declaration of France, Russia and USA that spearheads the OSCE Minsk Group, all foreign mercenaries should flee the territory of Nagorno-Karabakh and Armenia would have to return the occupied seven districts to Azerbaijian. These countries pledged themselves to take any necessary measures to refrain a new escalation of the conflict and to comply with international humanitarian law, providing the necessary aids.

The deal authorized the deployment of 2000 Russians for peace-keeping operations for a period of 5 years and nowadays the Minsk Group is grappling with the preparation of a monitoring centre, composed of Russians and Turkishs, in order to test the civilian observance of the ceasefire. The agreement set out a reopening of the transport links among Armenia, Azerbaijan and NKAO in more protected areas. Besides territories, Azerbaijan declared its intention to hold a referendum on this issue. From this agreement, the uncontested winners resulted to be Azerbaijan and, secondly,  its allied Turkey. In the international panorama, Iran welcomed this solution, not considering it so terrible, and, after having threatened a military intervention in the enclave to restore the altered order, it declared to be satisfied by the reached compromise that didn’t consecrate Turkey as the undisputed winner, as demonstrated by the decision of rolling out Russian peacekeeping forces. It also approved the marginalization of the phenomenon of IDPs and the restitution of the districts to Azerbaijian, stressing the importance of the compliance with the ‘90s UN resolutions, focused on the respect of the minority rights, and finally hoping for a rapid dismantling of Syrians along its borders.  Although that, the ceasefire has already been broken by civil society, as Armenian fierce street demonstrations, led by part of the armed forces and of the public opinion that keep on rejecting the new tricky imposed dispositions, have re-started, asking for the resignation of PM and claiming early elections. Nagorno - Karabakh authorities affirmed to have been obliged to reach this agreement as, if the fighting would have been continued, they would have lost the whole Artsakh Republic in few days, causing an upper increasing number of victims.

The Armenians rebellion flared up,  assaulting the Head of State building, blaming him to be a “traitor”. He officially retorts, instead, that the signature of this “painful deal” was necessary in order to avoid a conflict on a larger scale, mainly because of the Baku “iron fist” policy. It was nothing but the consequence of a deep analysis, conducted under the advice of experts, of the legal and political implications of the different possible solutions. In facts, Armenians reluctantly has had to sacrifice their historical vindications, cultural believes and identity claims at the mercy of the involved superpowers major interests.

In the interpretations and regulations of international law, there hasn’t been a novelty in the international legal order and hasn’t been written a new page in the history of human rights protection, although the worries expressed about the identity and sense of belonging of Armenians to Nagorno Karabakh, upon which has been decided a cruel and unfair fate, still remaining considered as a minority.

In addition to that, also Azerbaijian infringed the truce, lamenting that the progressive withdrawal of the Armenian forces has stopped and has even been triggered sabotage operations against civilians. Reasons why Azerbaijian security forces have felt to be authorized to undertake what they have considered  anti-terroristic attacks.

During the negotiations was shown off a weary, too soft and less involved reaction of the States in solving the peaceful process on the direction of the protection of the violence suffered by these minority groups. Russians preferred to not exacerbate the real terms of the war, and although ideologically supporting the ex-Sovietic Republic, other than deploying a consistent amount of peacekeeping forces, preferred to remain politically neutral, aware that this choice would have overturned the destiny of its historical allied. They finally concluded not to have any strong economical motivations preventing them from choosing this diplomatic strategy, deciding, otherwise, to keep its geopolitical predominance in the area with the minor investment of resources without putting in jeopardy their relations with Turkey. After that, Armenia hasn’t wanted to cause a total war that would have cost a lot in terms of human and economical resources, and the USA, distracted by presidential elections, had no intention to intervene directly and preferred limiting its role as a Minsk Group member, until the situation wouldn’t have been degenerated.

The brokered solution didn’t answer to the consistent claims of human rights supporters, that repeatedly expressed their concern about the occurring war crimes and crimes against humanity. In facts, as neither Armenia, nor Azerbaijian are parties to the Statute of ICJ, they would be likely to go unpunished. Amnesty International, in particular, has denounced that the both armed forces committed extra-judicial executions, beheadings, mistreatments against prisoners and desecrations of bodies, pushing it to start impartial investigations about these responsibilities.

Today, in this region, by now become a hotbed of terroristic infiltrations and basis of Islamic terroristic groups that keep on reaping an increasing number of human rights violations, the main worry concerns humanitarian aids and the severe climate conditions characterized by chilling temperatures under the zero, facilitating the rapid finding of dead bodies, scattered in the battle grounds, full of anti-personnel mines, the return of IDPs and of the refugees in the land of origin under the control of the UNHCR, ensuring the supplies  due to the Covid-19 emergency and the treatment of the prisoners of war, the hostages and detainees other than ensuring a social and psychological support to the civilians victims of abuses, that still suffer the worst consequences of these crimes occurring in the intentional abstention from straight stances by the intervened powers interested in the conflict and by a lasseiz faire of the international institutions, more engaged in providing help to civilians, following the before mentioned jurisprudential decisions inherent to the norms of jus cogens and the deployment of  peacekeeping forces by Russia, in the hopes that the attempts done up to now could represent, even in the lack of tough decisions a deceleration in the perpetration of these crimes and terroristic attacks, a valid deterrent for this critical conflict. In case of degeneration, failure or further sabotage of the proposed solutions, this enclave is susceptible to become an outright tumour tissue for the equilibrium of the whole regional system in the Asian South- East. This so-called frozen conflict, that’s a “low intensity” conflict”, that alternates phases of tension to other of quietness, skirmishes to outright guerrillas, has left the matter neglected for long and instances disregarded by the international community. Nevertheless this quarrel “by fits and starts” keep on cyclingly re-emerge and has demonstrated to have too much profound roots to be easily eradicated. In the last months continue the political declarations and the summits to guarantee the civil protection of humanitarian damages deriving from the use of explosive weapons excogitated for open battle grounds ( artillery, rockets and grenades, cluster munitions) used against civilians in populated areas.

The history is studded with examples of States with claims upon territories by private groups advocating the right of self-determination. Generally speaking, besides the rare event of an originary territorial sovereignty on terrae nullius, today a new State acquires a territory ceded by another State or,  totally or partially, subtracted, to its dominion, in the general denial of the territorial acquisition by the use of force. According to the Directorate General for External Policies of European Parliement[5], all analogue  situations taking place in the Post-Soviet region are described as “frozen conflicts” or “black holes”, to designate all those territories upon which no State exercises its own jurisdiction. The pacific SSRU process of disgregation started in 1990, in fact,  recalled unsolved national matters and inter-ethnic conflicts that the Soviet Federation kept dormant. Nagorno – Karabakh, composed of an Armenian majority, was an autonomous oblast’ in Azerbaijian. After this disgregation, pro-independency movements gave origin to the phenomena of secession and led NKAO to a sort of independence, although followed a particularly violent armed conflict, causing many IDPs. The actual situation of the four secessionist instances of Transintria, Nagorno –Karabakh, Abkhazia and South Ossetia, sometimes called “almost States” differ from each other for the degree of infrastructure and NKAO stands out for the lack of road links and for being surrounded by mountains. Each of them has its own juridical system and an apparatus of government that could be redirected to those of the States but, as a matter of facts, they have not created juridical novelties.

Today, Nagorno  - Karabakh is part of the “Community for Democracy and Rights of Nations”, commonly known as the "Commonwealth of Unrecognized States".  The situation of these “almost States” pushes us to reflect on the role of recognition by the States of the international community in the process of creation of a new State subject. As said, the main essential and objective criteria for the definition of State are the effective exercise of sovereignty on a distinct territory and the independent exercise of the power by its new government. About the first requisite, the PCIJ revealed that it is made up of the intention and willingness of States to act as a Sovereign and the existence continuous manifestation of this authority in the legal, executive and judiciary field, that must be taken in different consideration from those the State exercise by military occupation of territories or administrations characterized by peacekeeping operations in zones placed outside its borders. The ICJ, in the solution of territorial disputes, often base its judgement on the verification of the existence of a juridical title that determines the right of the contenders to govern. This juridical title becomes the foundation of the exercise of sovereignty and prevails on the effectiveness of government, not reckoned to be sufficient. These titles consist of the international treaties on territorial controversies or between previous States, first of all the treaties about borders, and the rights coming from the succession of States and from the customary principle of uti possidetis. This last principle, applied to the States born from the decolonization process, has been extended to other historical events, such as the dissolution of SSRU, and is now generally accepted.

The doctrine of “divided States”, as have been classified historical situations, such as the division of Germany, of Vietnam, of the Korea and of the China, to which are referred two symmetrical, divided and expressly recognized State subjects, can be hardly applied to the Post-Sovietic entities.

In the international practice as international bodies, both on a universal and regional level, they put at stake the requisite of the presence of a juridical title for the exercise of a territorial sovereignty, as demonstrated by the Security Council in 2014 about Iraq  and the ECHR Court[6] concerning the Moldavia responsibility on territoriality and extraterritoriality and Russian intervention[7].   The Court reaffirmed in this last occasion to be responsible of the implementation of the ECHR principles even when a situation of fact, as the presence of a separatist movement, makes impossible for the State the exercise of its sovereignty on its territory and, about the extra-territorial jurisdiction, the Court reckoned that the State is responsible even when it exerts an effective control on an area outside it or can influence the local administration. None of these four Post-Sovietic entities can boast of the possess of a legitimate title and uphold the acquiescence or tacit agreement of the previous State, given the armed conflict that has characterized the separation process.  They don’t even possess the second requisite of the independence.

International law for the protection of the territorial integrity keeps on being consistent with the relationships between States. The prohibition of secession and the right of territorial integrity is something concerning the pre-existent State and the third aggressor, not  the secessionist movements, exception done for the case of external self-determination. The ICJ upheld to not be in the position to pronounce itself, even on the matter of “remedial secession”, when the right of self-determination is recognized to a population that suffers gross violations of human rights.

Particularly significant is to note how the external right of self-determination is guaranteed by the international law to a population but not to a minority. The existence of a new subject of international law is strictly connected to the exercise of the sovereignty on a territory and on the population placed in it. The requisites that testify the international subjectivity confirm to be factual in nature, related to the concrete capacity of the new entity to exercise its government. Synthesizing, generally speaking, international law protect the right of self-determination as a juridical title for the exercise of sovereignty only when the population is subjected to a colonial domination or to a foreigner occupation. So, the norm of self-determination completes that of territorial integrity of the States: the inexistence of a norm of international law for the protection of the right of a minority to separate itself from the State to which it belongs and to form a new State determines the baselessness of the rights of these entities to separate themselves from the States to which they belong. The historical facts so far occurred haven’t contributed to the creation of a customary law in favour of a secessionist self-determination. So, when the referendum  doesn’t answer to the laws of legitimate State or is not the result of an agreement between the interested subjects, neither the State from which occurs the separation, nor the other States are obliged to respect it[8].

Another doctrinal feature, the so-called “premature recognition”, or recognition in fieri, underlines, nevertheless, a greater potential for the birth of a new State or at least it’s difficult to demonstrate that it doesn’t exist or couldn’t affirm it if the hypothesis will require it. OSCE and EU have stressed the importance to intervene especially in Nagorno – Karabakh, that,  in comparison with other cases, is particularly internationally isolated. Furthermore, the belonging of an entity to an int org, even with a status of observer, doesn’t represent a collective recognition by their Member States. 

The juridical condition of Nagorno –Karabakh demonstrates as, in the lack of consent of the involved State of the collective recognition, in our globalized society, can be outlined situations that survive to the military power of the State that supports or incites to secession, even if the new subjects could always go further the stage of “entity of fact”  and be realistically considered as parts of the international community. In South Caucasus has not been possible finding a negotiable solution, by confirming the conclusions of the Supreme Court of Canada in its 1988 sentence about the secession of Quebec[9].

Under international law, these four Post- Sovietic realities must be read as an attempt to discard the customary principle of territorial integrity of the States, that contributes still today to reinforce the fragile equilibrium of the international community. Whatsoever intent to infringe or undermine it, it’s openly contrary or incompatible with the UN Charter. The inexistence of a right of a secessionist self-determination determines, in fact, the crystallization of the controversy with the previous State.

The political, economic, and juridical ties with third States that has facilitated the secession forbid the new subject to overcome the phase of a just formal independence: the recognition of a single country and of few allied states often transform the new subject in a ghost government and doesn’t favour the creation of a new sovereignty[10].    

Furthermore, the debated  elections in NKAO push us to consider that it’s always been upheld that the presence of democratic institutions within the new State entity was not relevant to the recognition. The USA and EU practice of recognition of States born from the dissolution of Yugoslavia and SSRU in the 1990s subordinated this element to an effective practice and process of democratization,  not yet a created condition for the right of the new State to be recognized. The evaluation of the stage of democratization of the new subject keeps on being centred on political matters, as so far demonstrated, and even when a State will begin this serious kind of process, it wouldn’t automatically acquire the right of recognition and not even this kind of obligation by third States.  

The not recognised Artsakh Republic is, even up to now, between the devil and deep blue sea:  the Armenian domination, on one side, and  terroristic attacks perpetrated by Azeri Muslims, on the other, under the warhorse of the right of territorial integrity.

 What kind of future can be preconized for this enclave? Should it always refer to the support of other States or could minorities, small groups and entities be masters of their own? The same political leaders, by the “painful deal”, have to resign to a compromise solution, sacrificing and denying the internal claims of the population, evidencing a representational gap. None has had the lion’s share in the conflict, and has not be found a solution for urgent issues such as the spreading of terroristic activities and the alarming data about the famine, starvation, poverty in the Republic. In fact, by undertaking these positions, the international community insofar hasn’t contributed to solve the nitty-gritty roots of the problems. None has come out of the process completely satisfied and nothing has been done to make the world a better place to live in.

What kind of progress is facing values such as democracy and free determination in our days especially in this land? Could be said that in Nagorno- Karabakh could be implemented a sharing of these values on an equitable basis, between it and the States involved in the conflict? As said before, the community belonging to this enclave, is considered as a minority and, as such, we should have a look on the most important UN Declaration on this issue, that’s the UN Declaration on the rights of Persons belonging to national or ethnic, religious and linguistic minorities, adopted by the GA in 1992 . Moreover, the art. 27 of the ICCPR states that “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”, a principle that is compassed within the broader one envisaged by the art.1 , s.1. of the ICCPR, according with “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. These formulations are valid, first of all, for the UN states Parties but they’ve become basic principles for all in the international community.

In order to conclude, quoting John F. Kennedy, “those who make peaceful revolution impossible will make violent revolution possible” and that’s the case. In the pursuit of a dream of equality and democracy, in the same way and words of Martin Luther King[11] in 1963, calling for all unalienable civil, political and economic rights and an end to racism, you can win or sometimes lose, triggering off a fight for their realization, starting revolutions and wars, getting to terror, putting same values at risk and turning their nature in nightmare and destruction under the skin of the weakest, for high ideals’ sake.

 

 

Endnotes:

Contino Silvia, Alcune considerazioni sul processo di formazione di nuovi Stati nell’area Post Sovietica, Federalismi – Rivista di diritto pubblico italiano, comparato, europeo, febbraio 2020

G. Guarino, Autodeterminazione dei popoli e diritto internazionale, Napoli, 1984

M. Di Stefano, Il principio di autodeterminazione dei popoli alla prova del nuovo millennio, Padova, 2014

N. Ronzitti, Il conflitto del Nagorno-Karabakh e il diritto internazionale, Torino, 2014

Focarelli, C., Diritto Internazionale, V edition, Padova, 2019

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[1] http://www.balcanicaucaso.org

[2] https://legal.un.org

[3] This last principle was a mere formality, considered the existence of colonies and regimes of racial segregation.

[4] A/RES/15/1514 - Declaration on the Granting of Independence to Colonial Countries - UN Documents: Gathering a body of global agreements (un-documents.net)

[5] Directorate-general for external policies, policy department, The Frozen conflicts of the EU’s Eastern Neighbourhood and their impact on the respect of human rights, European Parliement, 2016

[6] About ECHR sentences, see https://hudoc.echr.coe.int

[7] See, ECHR Court, 23 feb 2016, Mozer c. Moldavia and Russia, no. 11138/10

[8] See opinion no. 762/2014 of the Venice Commission, consulting body of Council of Europe.

[9] Supreme Court of Canada, Reference Re Secession of Quebec (Aug 20, 1998),in Int. Leg. Materials, 1998. 

[10] M. Sterio, On the right of external self-determination: “selfistans”, secession and the great powers rule,  in Minnesota Journal of International Law, 2010

[11]  Some 100 years after President Abraham Lincoln signed the Emancipation Proclamation freeing the slaves, Martin Luther King climbed the marble steps of the Lincoln Memorial in Washington, D.C. to describe his vision of America: “I still have a dream”, he said, “ a dream deeply rooted in the American dream – one day this nation will rise up and live up to its creed…we hold these truths to be self evident: that all men are created equal”, M.L. King, Aug 28, 1963, Washington, D.C., USA.