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17 October 2020
“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.”
(The United Nation General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970).
In the opening chapter of the UN Charter, respect for the right to self-determination of peoples is presented as one of the purposes of the United Nations. The right to self-determination of all peoples was confirmed by the United Nations General Assembly (GA) in the Declaration of Friendly Relations, which was unanimously adopted in 1970 and is considered an authoritative indication of customary international law.
Article 1, common to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), reaffirms the right of all peoples to self-determination, and lays upon state parties the obligation to promote and to respect it.
Criteria For the Right to Self-Determination:
A people can be said to have realised its right to self-determination when they have either:
1) established a sovereign and independent state
2) freely associated with another state or
3) integrated with another state after freely having expressed their will to do so.
The definition of realisation of self-determination was confirmed in the Declaration of Friendly Relations. The principle outlines not just the duty of states to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. In particular, the use of force to prevent a people from exercising their right of self-determination is regarded as illegal and has been consistently condemned by the international community. The obligations flowing from the principle of self-determination have been recognised as erga omnes, namely existing towards the international community.[1]
Limitations of the Right to Self-Determination:
“The theory of self-determination, as justifying the secession of a people from its existing mother state as a matter of last resort only, in situations where the people is oppressed or where the mother state’s government does not legitimately represent the people’s interests, has remained constant throughout the 20th century development of international law.”[2]
“Self-determination in international law is viewed to be synonymous with the right of self-governing territories to independence. Such territories are distinguished by virtue of their being geographically and racially distinct from the metropolitan country which governs them, but with which these territories do not share political power. If international law were to go beyond this and recognise the right of self-determination as transcending legally established international boundaries, it would undermine the stability of the international order by placing it in a perpetual state of flux.”[3]
Historical Background to the Armenia/Azerbaijan Conflict:
Artsakh was one of the three ancient provinces of Armenia, established 189 BC and located in the eastern end of the Armenian Plateau. The Historical roots of Artsakh trace back to the 5th century BC.
In 1724, Ottoman troops invaded the Armenian land and attacked the Artsakh Armenian population, who yet again rose to struggle for their independence.
In 1923, the area now known as Nagorno Karabakh (Artsakh) was annexed by Stalin to the New Soviet Republic of Azerbaijan even though the majority of Nagorno Karabakh’s (Artsakh) population (94%) were Armenians who voted to reunite with Armenia and even protested against Stalin’s decision.[4]
After the fall of USSR, Armenians of Nagorno Karabakh (Artsakh) fought for their right to reunite with their motherland. During the perestroika reforms that eventually led to the Soviet collapse, Nagorno Karabakh (Artsakh) held a referendum, voting to secede from Azerbaijan and become part of Armenia.
Azerbaijan fought against their freedom and turned this conflict into an ethnic cleansing war that ended in 1994.
The Current status of Nagorno Karabakh (Artsakh)
Nagorno Karabakh (Artsakh) is an autonomous State, covering most of the territory of the former Nagorno Karabakh Autonomous Oblast, but internationally is recognised as part of Azerbaijan.
Nagorno Karabakh (Artsakh) declared independence in 1992.
The current status of Nagorno Karabakh (Artsakh) is in part due to compromises accepted by Nagorno Karabakh (Artsakh) itself:
• It has remained independent and separate from Armenia, rather than included in Armenia, partly so as not to further inflame Azeri sentiment.
• Armenia has not formally recognised its sovereign status – in deference to international sensitivity.
• Nagorno Karabakh (Artsakh) has not pressed internationally the point of recognition by other countries.
• Nagorno Karabakh (Artsakh) has accepted a status of ‘frozen conflict’ on the basis that this is better than outright war. Yet, leaving the status of Nagorno Karabakh (Artsakh) as a ‘frozen conflict’ is NOT advantageous for Nagorno Karabakh (Artsakh), or Armenia, economically, politically or diplomatically. It is a compromise offered to Azerbaijan.
Thus, any media or political claim that Armenia are ‘occupiers’ is untrue and a misrepresentation of the facts.
According to legal experts, such as Geoffrey Robertson QC, Azerbaijan’s repeated claims to sovereignty over Karabakh can be refuted. It has always been predominantly occupied by ethnic Armenians. When the Soviet Union dissolved in 1988, and despite Azeri transmigration to it encouraged by Baku, the population was still 75% Armenian.
After the Sumgait massacres of Armenians by Azerbaijanis in Azerbaijan, they at first voted for unification with Armenia. But after the Karabakh army overcame the Azeri invasion, they decided by overwhelming vote in 1992 to become an independent republic.
Under International law, this referendum was legal.
Meanwhile, Azerbaijan’s previous attempt at ethnic cleansing, and Azerbaijan’s continuing attempt now at ethnic cleansing which includes targeting civilians with tanks, helicopters, heavy artillery, multiple-launch rocket systems, including Smerch, and cluster bombs, contrary to international law, justify Nagorno-Karabakh’s (Artsakh) claim for self-determination under the UN charter.
Nagorno Karabakh (Artsakh) is a Presidential democracy with a ‘unicameral’ (single legislative) parliamentary chamber. The population is mostly ethnic Armenian and the main language spoken is Armenian. Some say that the country’s dependence on Armenia mean that it is de facto a part of Armenia. Armenia remains reluctant at present to recognise Nagorno Karabakh’s (Artsakh) independence, but supports its autonomous status. The population is overwhelmingly Christian. Nagorno Karabakh (Artsakh) has its own defence army and instruments of State.
Does Nagorno Karabakh (Artsakh) Fall Within the UN Remit for the Right to Self-Determination?
Nagorno Karabakh (Artsakh) may not under international law have yet become a, ‘sovereign and independent state’. However, it is a functioning autonomous democratic State system with instruments of State and a viable economy.
The Montevideo convention states customary international law about the requirements statehood. A state needs:
1) a permanent population,
2) defined territory,
3) a government,
4) the capacity to enter relationships with other states.
Nagorno Karabakh (Artsakh) has a permanent population, a defined territory, and a democratically elected government. It has 8 diplomatic missions in other countries and its government has numerous contracts with other states and state corporations.
Moreover, the people of Nagorno Karabakh (Artsakh) (94% Armenian) have freely integrated as an autonomous zone looking to Armenia for historical, cultural and political reasons of their own volition as their natural neighbours. They are both geographically and racially distinct from the Muslim Azerbaijan State under which they officially stand according to international law (by an accident of history) at present.
Yet since 1988, Azerbaijan has violently sought to re-establish its authority and control against the wishes of much of the population of Nagorno Karabakh (Artsakh).
Resolutions by the General Assembly and Security Council cannot supersede or overthrow the Charter of the UN, its declarations, or the principles underlying them. General Assembly and Security Council resolutions are formed merely to address time-relevant political priorities. The Charter and Declarations stand above resolutions until they are changed. Resolutions cannot supersede the Charter of the UN.
In addition to the UN Charter of Nations, Nagorno Karabakh (Artsakh) scores highly on all the Indicators of social development established by the World Bank that measure how ‘developed’ a country is. These include statistics compiled in the following fields of civil life: Education, Health, Work, Gender equality, Peacefulness, Democracy, Corruption, Consumption, Pollution, Leisure/ Media, Civil Rights, Crime/ social unrest. In all these indicators, Nagorno Karabakh (Artsakh) scores significantly higher than Turkey and Azerbaijan.
Under the UN criteria for the right to self-determination, it can thus be argued that under International Law, Nagorno Karabakh (Artsakh) amply fulfils that right, and that the dangers of Nagorno Karabakh (Artsakh) coming once again under the control of Azerbaijan for its population are extreme.
By Dr Andrew Ashdown, Manager of Good Governance and Advocacy Development.
[1] https://www.diakonia.se/en/IHL/The-Law/International-Law1/IL–Self-Determination/#:~:text=Criteria%20for%20the%20right%20to,their%20will%20to%20do%20so.
[2] https://www.asil.org/insights/volume/22/issue/1/self-determination-and-secession-under-international-law-cases-kurdistan
[3] Zubeida, Mustafa (1971) The Principle of Self Determination in International Law. In International Lawyer Journal. Vol. 5, No.3. pp 479-487. https://scholar.smu.edu/cgi/viewcontent.cgi?article=4243&context=til
[4] De Waal, Thomas (2019) The Caucasus. An Introduction. Oxford: Oxford University Press 2nd Edn. P. 105