By: Vani Manoraj
The right to self-determination recognizes the right of the people to decide their political and sovereign destiny without external interference. The development of this right can be directly linked to the rise of nationalism within imperialistic empires during the 1700s.
Nationalism was a strong reaction to imperialism where subordinated and disenfranchised groups recognized their shared history, geography, language and customs uniting to pursue independence and territorial sovereignty.
The right to self-determination found universal recognition when it was included in the United Nations Charter. Article 1, paragraph 2 of the United Nations Charter provides “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.
Moreover, Article 1 of the International Convention of Civil and Political Rights embodies this principle. Therefore it can be said that Right to Self-Determination was established as jus cogens in international law by finding place in human rights law.
The contemporary principle of Self-determination includes internal sovereignty by freely pursuing economic, social and cultural development within the legal framework of the existing state and external sovereignty by freely determining their political status and place in the international community.
However, the legal development of the right with respect to the external aspect only allowed its invocation as a matter of last resort.
The right could be invoked only in cases where the people were oppressed or the existing government did not represent the interest of the people. This restricted understanding of the right emanated from the decolonisation paradigm.
It was felt that a broad interpretation of the right could lead to territorial disruption and undermine the principle of territorial integrity.
The modern era saw the acceptance of the principle of self-determination in a binary form. In recent opinions, the International Court of Justice recognized that new states exercised the right without a need to end imperialism and that there was no international law that expressly prohibited declarations of independence.
In the Western Sahara case (Western Sahara Advisory Opinion, 1975) the court established that the two important requirements for the effective exercise of the principle of self-determination were that the expression was free and genuine. The court further established that a referendum was a legitimate means of expressing the popular will.
In the Kosovo Advisory Opinion (Accordance with international law of the unilateral declaration of independence in respect of Kosovo Advisory opinion, 2010), the court rejecting the argument that unilateral declaration of independence violated principle of territorial integrity held that a declaration was unlawful only if it related to unlawful use of force or egregious violations of norms of general international law, in particular those of a peremptory character.
Therefore, there has been a progressive evolution on the principle of self-determination.
Another aspect closely linked with the issue of self-determination is that of recognition of statehood.
What is a State?
The Montevideo Convention on the Rights and Duties of States 1933, under Article 1 categorically enumerates the four criteria for statehood namely a permanent population, a defined territory, government and capacity to enter into relations with other state. The “capacity to enter into relations with other state” is akin to the state possessing an international legal personality.
The state derives this capacity as a consequence of statehood. The dilemma arises when the capacity is dependent on recognition of the state and this recognition is in turn dependent on the statehood of the state.
According to the constitutive theory of recognition, an entity may become a state only by virtue of recognition and enjoy rights inherent in state under International law (Zadeh, n.d.). In contrast the declaratory theory of recognition prescribes that the existence of the state is independent from recognition.
Recognition is seen as merely confirming or establishing the existence the state and not creating the state (Zadeh, n.d.).
Many jurists have stated that independence is a fundamental criterion for statehood and implicit in the capacity to enter into relations (Crawford & Brownlie, n.d.). On the other hand some jurists equate independence with sovereignty (Crawford & Brownlie, n.d.).
It is imperative to understand the legal requirements surrounding independence to fully comprehend the story of Nagorno-Karabakh Republic independence efforts.
The Nagorno-Karabakh Republic (NKR), which later changed its official name to the Republic of Artsakh, is a land locked and unrecognized country in the South Caucasus, internationally recognized as a part of Azerbaijan.
The official language is Armenian and has a total area of 11,458 square kilometres and a population of 150,000 people. The region is in the South Caucasus, surrounded by the mountainous range of Karabakh in the Caucasus Mountains.
This picturesque region of mountains and forests seems like an unlikely ground of conflict. However, the region has had a complex history with shifting powers and regimes. The region has witnessed conflicts on numerous occasions.
Up until the Middle Ages i.e. 7th century the region was part of the Kingdom of Armenia and consisted of Armenians and several Armenized tribes. In the mid-7th century the region was conquered by invading Muslims Arabs through the Muslim conquest of Persia.
However, the region was reclaimed by Armenia and the House of Khachen was established which ruled over the region until the 19th century. In 1813 the region was ceded to the Russian Empire under the Treaty of Gulistan by Persia.
The end of the Russian Empire saw the rise of three states (Transcaucasia) – Georgia, Armenia and Azerbaijan. During the Russian Civil war of 1918-1920, Artsakh was part of Armenia fighting against Azerbaijan and the Ottoman forces.
During this period the states forged new international ties. The most pertinent relationship was the growing closeness of Azerbaijan with Britain. Azerbaijan hoped a strong relation with Britain would ensure Azerbaijan from Russian aggression and maintain its control on the disputed region of Nagorno-Karabakh (Simonian, 2005).
However, in 1920 the three states were re-invaded by the Russian Bolsheviks and in turn formed part of the Soviet Union. The modern conflict of Artsakh started from the decision of Joseph Stalin, the then Commissar for nationalities, of placing Artsakh under the administration of Azerbaijan in order to appease Russian ally Turkey (Karagiannis, 2002).
Some historians believe that the decision to remove Nagorno-Karabakh from Armenian control was also motivated by the “Divide and Rule” policy thereby curbing nationalistic sentiments. Stalin’s decision led to the creation of Nagorno-Karabakh Autonomous Oblast within Soviet Azerbaijan in 1923.
The conflict lay dormant under the Soviet era. There were numerous requests made to Stalin to return Nagorno-Karabakh to the Armenians. The appeals argued that their national, cultural and economic rights were being restricted.
The passive objections became more prominent after the death of Stalin. The Armenian discontent was vocalised resulting in a petition signed by 2,500 Karabakh Armenians in 1963 seeking to be placed under Armenian control or be transferred to Russia. Between 1965 and 1977, large demonstrations were held in Yerevan calling for the unification of Karabakh with Armenia.
In 1985, Mikhail Gorbachev was appointed as the general Secretary of the Soviet Union. Upon him coming to power he implemented his plans to reform the Soviet Union.
The two most prominent policies were of perestroika which required a restructuring of the Soviet political and economic system and glasnost which means “openness” which allowed for increased government transparency.
The Glasnost policy granted Soviet citizens the freedom to express grievances about the system and leaders. In February 1988 the Regional Soviet of Karabakh voted to unify the region with the autonomous territory of Armenia.
In response Moscow emissaries’ replaced Boris Kevorkov from his positions of influence as the Secretary of Nagorno-Karabakh Autonomous Oblast with his deputy Genrikh Poghosyan (de Waal, 2003).
The Karabakh Armenian leaders further complained about the attempts of Azerbaijan to “Azerify” the region and change the demography of the area by increasing the number of Azerbaijanis and reducing the Armenian population.
Later Gorbachev declared the decision to not change the borders of the republics in fear that such a step would set a dangerous precedent for the other regions seeking territorial changes. The following years saw a rise in inter-ethnic violence and displacement of Azerbaijanis and Armenians from their homes.
Declaration of Independence
During the dissolution of the Soviet Union the conflict was reignited. As its swan song the Soviet Union held a referendum on its continued existence which was boycotted by Armenia but Azerbaijan voted in favour.
Armenia declared independence in August 1990 followed by Azerbaijan declaring independence in August 1991 from the Soviet Union. In December 1991 a unilateral independence referendum was held in Nagorno-Karabakh which was approved by 99.98% of voters. (Atanesyan,2012)
The Armenians of Nagorno-Karabakh declared their independence as the Republic of Mountainous Karabakh. The referendum was boycotted by the Azerbaijani population of Nagorno-Karabakh and Azerbaijan rejected the declaration.
The referendum is not internationally recognised by the UN member states. At that time the western countries had adopted a policy of recognizing only the Republics of the Soviet Union and not the autonomous regions within those republics (Krüger, 2010).
Following the referendum Azerbaijan unconstitutionally abolished the Nagorno-Karabakh Autonomous Oblast after declaring independence and organised a military aggression in order to quell secessionist movement in Artsakh.
This led to the Nagorno-Karabakh War. During the war, Nagorno-Karabakh was aided by the Republic of Armenia.
In the early 1991 the soviet forces and local Azerbaijani police conducted Operation Ring which involved using ground troops, military, armoured vehicles and artillery to deport Armenian civilians and intimidate the Armenian populace to give up the demand for unification.
Operation Ring was a turning point in the clashes as the operation reinforced the Armenians belief for armed resistance. In February 1992, Karabakh forces launched an attack on the town of Khojaly resulting in the massacre of the Azeri population of the town. The ensuing months saw bloody clashes between the two sides (Croissant, 1998).
In mid-1992 under the aegis of the Organisation of Security and Co-operation in Europe, the Minsk group was created with goal of facilitating dialogue between Armenians and Azeris. The group was co-chaired by United States, France and Russia.
As the war continued in 1993, Turkey closed its borders with Armenia. The resulting toll of the war led to a ceasefire in May 1994. Following the ceasefire, the Nagorno-Karabakh declared the creation of the unrecognized country of Nagorno Karabakh (Artsakh).
Road to Recognition
The beginning of the end of the Soviet Union is generally signified by images of the falling of Berlin Wall. But it is in the mountain and forest regions of Nagorno-Karabakh that the real ripples of the end of the Soviet era are felt. The country exists in a state of limbo.
In the last 25 years, the Nagorno-Karabakh Republic (Republic of Artsakh), with the aid of Armenia has worked to build a viable economy, infrastructure, democratic institutions and an effective defence force as the threat of Azeri aggression in violation of the ceasefire agreement still exists.
The referendum creating the Nagorno-Karabakh Republic was legally valid under International law and the Soviet Union laws.
However, Artsakh still exists as an unrecognized country. The lack of concrete border and the dependence of the country economically and politically on Armenia are arguments against recognition of Artsakh.
However, the international practice of recognition has been inconsistent and complex. A survey of the recognition practice evidences that countries have recognized other states not possessing strict characteristics of statehood.
Moreover, the argument of dependence of Artsakh on Armenia fails to recognize that no country is independent. It is important to mention that States forming part of the EU lack the independence to make financial decisions and are subject to European Union legislative and legal framework but still enjoy recognition and the status of statehood.
On the other hand, the State of Taiwan complies with the necessary criteria under the Montevideo Convention but China’s influence and interest in the State results in silence amongst the international community. (Pollard, 2019)
Presently, Artsakh has a democratic government, a parliament, a capital which is Stepanakert. In addition, it complies with all the requirements of the Montevideo Convention but the road to recognition is slow because the region holds strategic value to Azerbaijan - it is important for its potential resources such as gold, gas and oil.
Additionally, Artsakh holds value for its transportation route which connects Caspian sea to Turkey allowing for free movement of gas and oil.
The importance of the region to Azerbaijan and then Turkey cannot be expressed in simple terms. This influence of both the countries internationally places an enormous challenge for Artsakh to gain recognition.
However, there has been progress in this area. Nine American states including Colorado in April 2019 have recognized Artsakh.
Additionally, the Australian state of New South Wales has recognized the territorial integrity of the unrecognized country. There is also a movement in Philippines requiring ASEAN cooperation to recognise Artsakh as well.
Though Artsakh declared independence long ago, the road to complete independence is long but hopeful. The small steps towards international recognition provide hope to the citizens of Artsakh for an independent future and a resolution to a conflict frozen in time.
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