On the legal side, the battle lies between self-determination and territorial integrity as discussed in my previous post. Prominently listed on Artsakh’s website is a memo by my former organization Public International Law & Policy Group on the issue. The summary of the memo is that Azerbaijan did not fulfill its obligations “in compliance with the principle of equal rights and self-determination of peoples,” thus fulfilling the condition for the Armenians in Nagorno-Karabakh to declare their independence.
The UN Security Council Resolutions 822, 853, 874 and 884 are used as counter-evidence of the illegal occupation by Armenians and reaffirms the respect for [Azerbaijani] sovereignty and territorial integrity. All four resolutions reaffirm the territorial integrity of Azerbaijan. Furthermore, Resolution 853 calls for the “unconditional withdrawal of the occupying forces involved from the district of Agdam and all other recently occupied areas of the Azerbaijan Republic.” However, 853 already acknowledges some degree of separation between the Armenians in Nagorno-Karabakh and Armenia (“9. Urges … Armenia to continue to exert its influence to achieve compliance by the Armenians in the Nagorny-Karabakh region ….”). Resolution 884 has similar statements as 853. All four resolutions justifiable make Azerbaijan look like the victim as they are losing the war at this point and calls on Armenia to do more to end the conflict.
These resolutions may be used to demonstrate a violation by the Republic of Armenia, but they don’t refer to the right of self-determination. If the people of Artsakh have a right to self-determination, these resolutions wouldn’t trump their right.
With Nagorno-Karabakh being a distinct region from Armenia proper since sovietization, there is a strong argument that the people of Artsakh are distinct enough to qualify for a right to self-determination. However, with, inter alia,the shared military and passports between Artsakh and Armenia, there is doubt. If the people of Artsakh do fulfill the requirement, then there is still the open question whether Artsakh has a legal claim to all of its land or only the land of Nagorno-Karabakh.
Some Azeri commentators have mentioned that the war was a war of aggression and the nation of “Artsakh” is a ruse to hide that aggression. War of aggression to gain land has been banned in international law since at least the early 1950s. It is a violation of jus cogens, the highest breach of international law possible (e.g. it’s as bad as the slave trade). If Artsakh doesn’t exist as a separate identity from Armenia, then Armenia’s calls on holding a referendum in Artsakh that may result in unification with Armenia would amount to Armenia trying to legally claim the lands it has illegally occupied since the war. While a clever argument, it relies on the people of Artsakh not having their own claim to self-determination.
Regardless of what the law is, to the frustration of international lawyers everywhere, international law often must take a backseat to international politics. When it comes to frozen conflicts, even a clear statement from the International Court of Justice is not enough to change the minds of the people or the policies of their governments.
Read on to Part 3: The Peace Process.