Contested Territories and International Law

A Comparative Study of the Nagorno-Karabakh Conflict and the Aland Islands Precedent

Kamal Makili-Aliyev

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000749953
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book considers the possibilities for resolution of the Nagorno-Karabakh Conflict in the context of comparative international law. The armed conflict between Armenia and Azerbaijan over the territory of the Nagorno-Karabakh has been on the peace and security agenda since the dissolution of the Soviet Union. This volume draws parallels with a similar situation between Sweden and Finland over sovereignty of the Aland Islands in the early 20th century. Resolved in 1921, it is argued that this represents a model autonomy solution for territorial conflicts that include questions of territorial integrity, self-determination and minority rights. The book compares both conflict situations from the international law perspective, finding both commonalities and dissimilarities. It advances the application of the solution found in the Aland Islands precedent as a model for the resolution of the Nagorno-Karabakh Conflict, and provides appropriate recommendations for its implementation. The book will be of interest to academics, researchers and policymakers in the areas of international law and security, conflict resolution and international relations.The Open Access version of this book, available at http://www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 4.0 license.

1 Nagorno-Karabakh Conflict in international law

The Nagorno-Karabakh Conflict is one of the gravest conflicts in the ­modern history of mankind. This conflict still poses a considerable threat to international peace and security as well as to the welfare of the states in the region of the South Caucasus. This chapter provides a comprehensive overview of the questions this conflict raises in regard to international law. It will make clear arguments on what international law actually says in regard to the conflict’s two main sets of questions. The first set of questions are in connection with the role of Armenia in the conflict. Is Armenia just a kin-state trying to help in a just cause? Or is it an occupier of parts of the sovereign territory of its neighbor? The second set of questions are those that are concerned with the status and legitimacy of the separatist entity created in Nagorno-Karabakh, the so-called “Nagorno-Karabakh Republic” (hereinafter the “NKR”).

Despite the fact that the arguments of the author can be summed up in approximately 800 words of an opinion article ¹ that argues that the Nagorno-Karabakh territory is occupied and “NKR” and its self-determination claims have no legal grounds or support in international law, this book requires more than a quick summary. Hence, a thorough legal analysis of public international law will be provided to explain this chapter’s claims. The analysis, however, will exclude discussions on international human rights law, international humanitarian law and international criminal law – for two main reasons. First, these questions were raised and discussed by the author in his previous research. ² Second, for the purposes of this book, discussion of humanitarian aspects, justice and human rights is unnecessary, due to the fact that it will compare the Nagorno-Karabakh Conflict to the precedent that mainly features fundamental concepts of international law such as sovereignty, territorial integrity, peaceful resolution of conflicts, etc., and has no particular humanitarian features to be used in such a comparison.

1 Kamal Makili-Aliyev, Nagorno-Karabakh Isn’t Disputed Territory — It’s Occupied – The National Interest (U.S.), May 2016, http://bit.ly/2eQt8v9

2 Kamal Makili-Aliyev, Nagorno-Karabakh Conflict in International Legal Documents and International Law, Baku: SAM, 2013, http://bit.ly/31qCYY4, pp. 24–73.

Thus, human rights in general and humanitarian aspects of the conflict as well as international criminal justice will be excluded from the overview of international law in the context of the Nagorno-Karabakh Conflict. On the other hand, such issues as the use of principles of territorial integrity and rights of peoples to self-determination, implementation of UN Security Council resolutions, right to self-defense of Azerbaijan, Montevideo Convention of 1933 and its applicability to “NKR”, soviet legacy legislation, principle of uti possidetis juris, and others in regard to this Conflict will be discussed further in greater detail.

Enter the Conflict: a brief historical overview

Karabakh is a small mountainous land that lies in the wider region of South Caucasus that historically has been located in the nexus of three empires: Russian (today, Russian Federation), Persian (today, Islamic Republic of Iran) and Ottoman (today, Republic of Turkey). Today South Caucasus consists of three independent states of Armenia, Azerbaijan and Georgia, which regained their independence after the dissolution of the Soviet Union in 1991. Armenians and Azerbaijanis lived in Karabakh for centuries and both trace their ancestry to the Caucasian Albania. They have always been in the middle of the clash of the empires warring in South Caucasus throughout the centuries. Probably the biggest demographic shift that established the majority of the Armenian population in the highland part of the region called Nagorno-Karabakh was in the beginning of the XIX century after the wars between Russian and Persian empires. The Armenian population in this territory dramatically increased, while Azeris, Kurds and Lezgins were being driven out. ³

3 Svante E. Cornell, The Nagorno-Karabakh Conflict, Report no. 46, Department of East European Studies, Uppsala University, 1999, p. 4; Christopher Rossi, ‘Nagorno-Karabakh and the Minsk Group: The Imperfect Appeal of Soft Law in an Overlapping Neighborhood’, Texas International Law Journal, No. 52 (1), 2017, pp. 54–55.

The dispute over the territory of Nagorno-Karabakh first arose between Armenia and Azerbaijan when these countries had their first chance to become sovereign independent states in 1918 after the revolution in the Russian Empire. At the time, even Armenians living in Karabakh agreed that it should be a part of Azerbaijan, with territorial and cultural autonomy for its Armenian population. ⁴ Later, in 1920, the Paris Peace Conference recognized Karabakh as belonging to Azerbaijan. ⁵ Ironically, by 1921 all of the states of South Caucasus had lost their newly gained independence and were already under Soviet rule. That year Nagorno-Karabakh was confirmed as a part of Azerbaijan (Azerbaijan Soviet Socialist Republic at that time) with the creation of regional autonomy there in order to maintain the economic ties between Nagorno-Karabakh (mountainous part) and lower Karabakh. ⁶ Interestingly, international historian Arsene Saparov states that:

4 Audrey L. Altstadt, The Azerbaijani Turks: Power and Identity Under Russian Rule, Stanford, CA: Hoover Institution, Press, 1992, p. 102.

5 Tim Potier, Conflict in Nagorno-Karabakh, Abkhazia and South Ossetia. A Legal Appraisal, The Hague: Kluwer Law International, 2001, p. 2.

6 Christopher Zurcher, Post-Soviet Wars, Rebellion, Ethnic Conflict, and Nationhood in the Caucasus, New York: New York University Press, 2007, p. 154.

It has become almost cliché to blame the creation of the ethnic Armenian autonomy within Azerbaijan on Stalin, who by doing this created leverage against both republics. It seems the absence of any Russian-language works on the subject is partially responsible for such lack of historical insight. ⁷

7 Arsène Saparov, ‘Why Autonomy? The Making of Nagorno-Karabakh Autonomous Region 1918–1925’, Europe-Asia Studies, Volume 64, March 2012, p. 282.

Indeed, the Armenian discourse on the Nagorno-Karabakh Conflict has adopted this narrative and used it in an attempt to justify the necessity of correcting what is perceived as a historical injustice perpetrated by Stalin. However, it is at the very least questionable due to the fact that one of the supporters of this decision in 1921 was an Armenian communist, Nazaretian. ⁸ Moreover, Saparov himself in his very detailed study of the subject comes to the conclusion that for Soviets, the “genuine desire to solve . . . conflicts was constrained by the need to accommodate the national interests of Caucasian republics. In the case of Karabakh, the granting of an autonomous status was a compromise solution”. ⁹ Thus, the Soviets’ decision to leave Karabakh in Azerbaijan was a rational decision rather than one based on ephemeral ethno-national policies. While in some other situations it may have been true that leverage policies were implemented by Stalin’s regime, in the case of Nagorno-Karabakh this was not what happened.

8 Potier, supra note 5, p. 4.

9 Saparov, supra note 7, p. 321.

In light of the aforementioned arguments, several clarifications should be made. Despite the fact that a dispute around Nagorno-Karabakh was already present at the beginning of the XX century, it cannot be seen as the starting point for the Nagorno-Karabakh Conflict itself. The Soviet Union was created and existed for seven decades and has been recognized as a sovereign state that has made a tremendous impact on the modern world and the current international situation. Thus, the legality of this state cannot be questioned and is not considered in this work by the author. The illustration of the aforementioned dispute at the beginning of the XX century and its consequences are required for the understanding of the arguments in international law applicable to the Nagorno-Karabakh Conflict that will be provided further in this book.

With that said, the actual Nagorno-Karabakh Conflict began in 1988 when the Armenian population of Nagorno-Karabakh, with the support of the then Armenian Soviet Socialist Republic demanded secession of the territory of the Nagorno-Karabakh Autonomous Oblast’ (hereinafter NKAO) from the territory of then Azerbaijan Soviet Socialist Republic and transfer of that territory to Armenia. In the period of 1988–1991, Azerbaijan and Armenian Soviet Socialist Republics and NKAO adopted a number of decisions that ranged from transfer of NKAO to the jurisdiction of Armenia to abolition of the NKAO autonomy by Azerbaijan, none of which have been accepted as legal and have been abolished by the central powers of Soviet Union in Moscow in 1991. ¹⁰ First clashes between Armenian and Azerbaijani forces began during the fall of 1991, even before the dissolution of the Soviet Union and on the background of a) the confusion in the Soviet army, b) actual loss of control of republican governments in the still Soviet Armenia and Azerbaijan over their armed units and c) common understanding that USSR is coming to an end. ¹¹

10 Potier, supra note 5, pp. 6–8.

11 Cornell, supra note 3, p. 25.

After the dissolution of the Soviet Union in late 1991, the Nagorno-Karabakh Conflict went into full-scale war between Armenia and Azerbaijan, which were newly independent and recognized uti possidetis juris in their territorial borders, just as they had existed in the former USSR. The result of the war was one of the bloodiest outcomes of all the conflicts in the post-Soviet era, with at least 25,000 lives lost. Moreover, the conflict left approximately one million Azerbaijani people internally displaced as refugees and around 20% of Azerbaijani territories occupied. A shaky cease-fire agreement has been maintained between the parties since 1994. ¹² Not only Azerbaijan has suffered from conflict; the International Crisis Group estimates the number of displaced Armenians to be as high as 400,000. ¹³ The conflict continues at the time of writing of this book with low-­intensity hostilities along the line of contact between armies of Armenia and Azerbaijan, with occasional flare-ups. The most intense such flare-up dates to April 2016 and was nicknamed by the international media and international researchers as a “Four-Day War”. ¹⁴

12 Kamer Kasim, ‘The Nagorno-Karabakh Conflict: Regional Implications and the Peace Process’, Caucasus International, Ankara: Moda Ofset Basim Yayi...