The Right to Self-Determination in Artsakh (Nagorno-Karabakh)

This post is an excerpt of a chapter I hope to include in my future book on the national question and the right to self-determination in Artsakh (formerly the Nagorno-Karabakh Republic).

(Image source: https://us1.campaign-archive.com/?u=727aaae8ea56658ecf4a092d5&id=52e9600e00&e=%5BUNIQID)

This post is an excerpt of a chapter I hope to include in my future book on the national question and the right to self-determination in Artsakh (formerly the Nagorno-Karabakh Republic).

In the last decade there has been increased interest in the conflict over Nagorno-Karabakh. Numerous scholars have published books examining various aspects of the conflict since 2010, including Ohannes Geukjian, Emil Souleimanov, Heiko Krüger, Kamal Makili-Aliyev, Svante E. Cornell, Bahruz Balayev, and Arsène Saparov. Despite all the academic literature on the conflict, the Republic of Artsakh’s (formerly the Nagorno-Karabakh Republic) right to self-determination continues to be fiercely debated, with most Western-oriented scholars supporting Azerbaijan’s claim to Nagorno-Karabakh. Those who reject Artsakh’s right to self-determination and favour Azerbaijani claims fundamentally misconstrue the right of peoples to self-determination under international law, and this is what I wish to address in this paper.

Origins and Meaning of Self-Determination

The right of peoples to self-determination refers to the right of a people to choose their own form of economic, cultural, and social development[1]. According to Tim Potier, the ‘genesis’ of the principle of self-determination lies in the American and French Revolutions[2]. In the American Declaration of Independence (1777), the Founding Fathers declared: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…” The slogan ‘no taxation without representation’ Potier writes “provided an absolute illustration of the ultimate sovereignty of the people over their rulers.”[3] 

The French Revolution, which reflected Thomas Paine’s theory of popular sovereignty expressed in his essay Common Sense, also recognized the principle of self-determination[4]. Self-determination was recognized in Article 2 of the Title of XIII of the Draft Constitution presented to the National Convention in 1793; but, as Antonio Cassese notes, “although the French leaders, in drafting Article 2, proclaimed a lofty principle, they misapplied it in actual practice,” since French leaders used it as a convenient method for annexing foreign lands[5]. All that was required for France to ‘legally’ annex a territory was the holding of a plebiscite — and only pro-French plebiscite were considered legitimate. Self-determination thus paved the way for France’s annexation of Avignon in 1791 followed by Belgium and Palatinate in 1793[6].  

It wasn’t until World War I, however, that the principle of the self-determination of peoples was truly explicated on an international level[7]. One of the first acts of the newly established Soviet Union was to declare the right of all peoples within the former Russian Empire, the ‘prison house of nations’, to self-determination, including secession and the formation of independent nation-states[8]. Indeed, it was Russian revolutionary leader Vladimir Lenin, in his 1916 Theses on the Socialist Revolution and the Right of Nations to Self-Determination, that first enunciated the principle of self-determination[9]. According to Lenin in his Theses, all ‘nations’, including ethnic and national groups, have:

the right to independence in a political sense, the right to free, political secession from the oppressing nation. Concretely, this political, democratic demand implies complete freedom to carry on agitation in favour of secession, and freedom to settle the question of secession by means of a referendum of the nation that desires to secede. Consequently, this demand is by no means identical with the demand for secession, for partition, for the formation of small states. It is merely the logical expression of the struggle against national oppression in every form.

U.S. President Woodrow Wilson similarly invoked the right of peoples to self-determination, in his speech to Congress in 1918[10]. It goes without saying that although both men recognized and invoked the right of nations/peoples to self-determination, Lenin and Wilson had very different interpretations of what self-determination entailed. While Lenin, Erez Manela writes, “saw self-determination as a revolutionary principle and sought to use it as a wrecking ball against the reactionary multiethnic empires of Europe, Wilson hoped that self-determination would serve precisely the opposite role, as a bulwark against radical, revolutionary challenges to existing orders, such as those he saw in the Russian and Mexican revolutions.”[11] This difference is most evident in Wilson’s decision to dispatch thousands of U.S. troops to the Soviet Union the same year he declared to Congress the importance of self-determination, to support, alongside Britain, Canada, Japan, and other countries, the reactionary White armies in their effort to restore capitalism in Russia and force Russia to maintain the eastern front. Unsurprisingly, Wilson later regretted having recognized any right to self-determination: “When I gave utterance to those words I said them without the knowledge that nationalities existed, which are coming to us day after day…You do not know and cannot appreciate the anxieties that I have experienced as a result of many millions of peoples having their hopes raised by what I have said”[12].

The first international dispute concerning the principle of self-determination was that between Finland and Sweden over the Ǻland Islands in 1917-21. An archipelago of some 6,500 islands, the Ǻland Islands, whose population is overwhelmingly Swedish, have historically been considered strategic due to their location in the Baltic Sea[13]. Under the terms of the Treaty of Fredrickshamn, which ended the Finnish War (1808-09), Russia annexed Finland, including the Ǻland Islands, which were incorporated into the semi-autonomous Grand Duchy of Finland[14]. In accordance with the principle of utis possidetis, when Finland declared itself independent in 1917, the Ǻland Islands remained under Finnish sovereignty. Fearing the domination of Finnish culture and language, the Ǻland Islanders signed a petition to reunite with Sweden, sparking a military confrontation between Finland and Sweden[15].

Referred to the newly established League of Nations by the British as “the only course for the Ǻlanders,”[16] the League of Nations rejected the Ǻland Islanders’ request to reunite with Sweden, but granted the Ǻland Islands extensive autonomy while remaining under Finnish sovereignty. According to the League, “what reasons would there be for allowing a minority to separate itself from the State to which it is united, if this State gives it the guarantees which it is within its rights in demanding, for the preservation of its social, ethnical or religious character?”[17] This often overlooked qualification will be important later.

The Ǻland Islands dispute notwithstanding, there was almost no legal development of the principle of self-determination until it was more resurrected from the dustbin of history by war, this time World War II[18]. In 1941, the principle of self-determination was recognized in the Atlantic Charter, drafted by U.S. President Franklin D. Roosevelt and British Prime Minister Winston Churchill, as one of the objectives to be attained at the end of WWII[19]. After the war, the principle of self-determination was formally recognized in several international treaties and resolutions, including the United Nations (UN) Charter, the 1960 Declaration on Colonial Countries and Peoples, the 1966 International Covenants on Human Rights, etc. Self-determination as an international legal principle was arguably at its zenith in the period between 1945-79[20], when at least 70 territories achieved independent statehood, often after bloody wars of liberation against the collapsing empires of Europe. Today self-determination is recognized as a “core principle” of both customary and treaty international law, “and, by virtue of its erga omnes status, it is the responsibility of all states to ensure that this right is realised.”[21]

Origins and Meaning of Territorial Integrity

Defining the principle of territorial integrity under international law is more difficult than one might expect. This is because, as Abdelhamid El Ouali notes, international law does not explicitly define territorial integrity[22]. Moreover, territory integrity is often invoked in the negative, such as forbidding “violation of a territory”, “use of force against a territory,” etc., adding further confusion to the meaning of territorial integrity[23].

The essence of the principle of territorial integrity is that states should not promote secessionist movements, or attempt to alter state borders through the use of force[24]. Consequently, the principle of territorial integrity is “one of the supporting pillars of international law,” writes Heiko Krüger, because the “sovereignty of states and in particular their sovereign equality is the fundamental premise for stable and trustful international relations.”[25] 

The principle of territorial integrity, like the principle of self-determination, is a relatively recent development in international relations. Prior to the emergence of the modern nation-state, authority over territory often overlapped and was subject to the vicissitudes of power struggles between ruling elites[26]. According to Mark W. Zacker, in these early times “the legitimacy of interstate borders was defined in dynastic terms: state territory was the exclusive property of ruling families, and they had an absolute right to rule their territories. But this international order did not reflect any absolute right to particular territory that could legitimately change hands by inheritance, marriage, war, compensation, and purchase.”[27]

The liberal interpretation of international relations traces the development of the principle territorial integrity and the modern interstate system to the Peace of Westphalia in 1648, which put an end to the Thirty Years’ War between Catholics and Protestants. Since neither side was strong enough to defeat the other, to end the war a status quo was established, in which the signatories, each acknowledged as the sovereign power over a territory, agreed to refrain from interfering in each other’s internal affairs[28]. Westphalia was a landmark event in the history of modern international relations and the interstate system. It is incorrect, however, to see in Westphalia the source of the principle of territorial integrity and the institutionalization of territoriality for which the principle entails. Political agreements cannot be divorced from the objective economic conditions which give rise to them. Just as the principle of self-determination has an objective base in economic conditions — Lenin used it as a weapon against colonial and imperialist empires, Wilson used it as a weapon on behalf of those very same empires, for example — so, too, does the principle of territorial integrity. Westphalia and the interstate system it engendered failed to halt wars of aggression between rival states, most of which concerned the acquisition of territory, or led to territorial changes[29]. Nor could it halt such aggression. As described above, before the emergence of the modern nation-state, territoriality was not institutionalized. That’s because under feudalism, writes Alex Callinicos, “where neither exploiters nor exploited have any incentive to increase their income by introducing productivity-enhancing technological innovations, the main opportunity that the ruling class has to improve its material situation is through territorial expansion — through lords seizing other lords’ estates and peasants.”[30] Indeed, the principle of territorial integrity only began to take its current form when capitalist relations necessitated the creation of territorially and political stable nation-states. As Lenin wrote, for capitalism to succeed, “the bourgeoisie must capture the home market, and there must be politically united territories whose population speak a single language…”[31] It is through the “formation of national states,” Lenin wrote, that the “requirements of modern capitalism are best satisfied.”[32] This view is shared by Marxists and non-Marxists alike, such as Dani Rodrik, Ford Foundation professor of international political economy at Harvard University:

A principled defence of the nation-state would start from the proposition that markets require rules. Markets are not self-creating, self-regulating, self-stabilising or self-legitimising, so they depend on non-market institutions. Anything beyond a simple exchange between neighbours requires investments in transportation, communications and logistics; enforcement of contracts, provision of information, and prevention of cheating; a stable and reliable medium of exchange; arrangements to bring distributional outcomes into conformity with social norms; and so on. Behind every functioning, sustainable market stands a wide range of institutions providing critical functions of regulation, redistribution, monetary and fiscal stability, and conflict management. These institutional functions have so far been provided largely by the nation-state[33].

Therein, to paraphrase Lenin, is the economic foundation, thus the origin, of the principle of territorial integrity.

Territorial integrity is often enshrined alongside self-determination in an attempt to limit the influence of the latter principle. For example, paragraphs (1) and (2) of the Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 1514 (XV) of December 14, 1960, (henceforth Declaration on Colonial Peoples, DCP) read:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

The “right” of “peoples” to “freely determine their political status and freely pursue their economic, social and cultural development” is later qualified, indeed almost nullified, by paragraph (6):

6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

Similar provisions on self-determination and territorial integrity are to be found in other international legal treaties, such as the Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV), of October 24, 1970 (henceforth Declaration on Friendly Relations, DFR). Under the subheading “The Principle of Equal Rights and Self-Determination of Peoples,” it is declared that:

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 establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.

Just like in the DCP (see above) this right to self-determination is again limited, again seemingly nullified, by two other declarations under the same subheading:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.

This duality of principles is explained by the reluctance of States to concede too much power to “peoples’. President Wilson’s Secretary of State, Robert Lansing, in his criticism of self-determination, best exemplified this concern. In 1918 Lansing wrote:

The more I think about the President’s declaration as to the right of ‘self-determination’, the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound to be the basis of impossible demands on the Peace Congress and create trouble in many lands.

What effect will it have on the Irish, the Indians, the Egyptians, and the nationalists among the Boers? Will it not breed discontent, disorder, and rebellion? Will not the Mohammedans of Syria and Palestine and possibly of Morocco and Tripoli [Libya] rely on it? How can it be harmonized with Zionism, to which the President is practically committed?

The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until too late to check those who attempt to put the principle in force. What a calamity that the phrase was ever uttered! What misery it will cause![34]

These fears were very much evident during the debate on the inclusion of self-determination in the UN Charter[35]. It is this ambiguity between the international legal principles of self-determination, a right which includes the establishment of sovereign and independent states recognized as belonging to all peoples, and territorial integrity, which seemingly limits if not nullifies that very same right, that makes it difficult to ascertain which of these two principles applies in cases of ethnic and territorial conflict, such as Artsakh.

Self-Determination vs. Territorial Integrity in Artsakh

The principal issue when determining the Artsakh’s legal status is whether Artsakh has the right to self-determination; and if so, does Artsakh have a right to secession and independent statehood, or only internal autonomy? My reply to these two questions is that there can be no doubt, as Levon Chorbaijan writes, that Artsakh’s claim to self-determination and independent statehood “is stronger than many such claims in the 20th century and inferior to none.”[36] Below I will examine the most common arguments made against Artsakh’s right to self-determination, and how opponents of Artsakh’s right to self-determination fundamentally misinterpret international law and history to support Azerbaijani claims.

Self-Determination is Applicable only to Colonial Peoples. Pro-Azerbaijani scholars opposed to claim that self-determination as enshrined in international legal treaties such as the UN Charter is inapplicable except in cases of classic colonialism. In his comparative analysis of Artsakh and the Ǻland Islands, Kamal Makili-Aliyev argues that the “right of peoples to self-determination in its broader sense, that was reflected in the UN Charter, is in fact a ‘dead’ principle of international law,” since “this principle of international law in its broader sense became inapplicable after the decolonization in the 1960s and 1970s”[37] Daria Isachenko shares this view: “The principle of self-determination…is enshrined in the UN Charter, but its applicability is limited to colonial territories”[38].

Makili-Aliyev, Isachenko, and other scholars are able to make this argument only by ignoring the many non-colonial territories that have achieved international recognition as independent states. For example, in 1971 East Pakistan (now Bangladesh) unilaterally declared itself independent from Pakistan, sparking a short but bloody war. East Pakistan was never a colony of West Pakistan. Accordingly, Bangladesh “had not been designated as a non-self-governing territory under Chapter XI or depicted as a colonial situation prior to its declaration of independence,” writes Bahruz Balayev [emphasis original][39]. Moreover, Bangladesh’s secession from Pakistan, as Ieva Vezbergaite notes, did not fall under colonial self-determination since Pakistan already exercised this right in 1947[40]. Much more recently another non-colonial territory unilaterally declared independence and has since been recognized by more than 100 countries: Kosovo, which declared independence from Serbia in 2008 after being forcibly detached by the U.S. and its NATO allies. Despite having never been a colony of Serbia, in its advisory opinion on Kosovo, the International Court of Justice (ICJ) found that Kosovo’s declaration of independence did not violate international law. Indeed, far from being a ‘dead’ principle only applicable to peoples subject to colonial rule, as Makili-Aliyev, Isachenko, and others argue, Judge Higgins of the ICJ notes that there “is a substantial body of doctrine and practice on ‘self-determination beyond colonialism’”[41]. Higgins cites the UN Declaration on Friendly Relations (1970), General Assembly resolution 3236 (XXIX) of 1974 (Palestine), General Assembly resolution 2144 (XXV) of 1987 (Afghanistan), and how “the Committee on Human Rights has consistently supported this post-colonial view of self-determination”[42]. The colonial interpretation of the principle of self-determination has thus been thoroughly discredited.

The Armenians of the NKR are an Ethnic Minority and not a ‘Peoples’. All ‘peoples’ have the right to self-determination under international — but what constitutes a ‘people’? According to Heiko Krüger, ‘peoples’ “remains an indeterminate legal term…”[43] Neither does international law offer a “clear definition and demarcation criteria recognized by the community of states for the terms ‘ethnic people’ and ‘ethnic group…’”[44]  The result is, Tinatin Tsanava (citing Walker Connor) writes, “a ‘terminological chaos’ between terms ‘people’ and [ethnic] ‘minority.’”[45]

Kosovo’s 2008 declaration of independence has added further confusion to this “terminological chaos”. Tsanava makes a strong case that, if Kosovo’s secession from Serbia did not violate international law, as the ICJ reported, the implication of this is, either a) ethnic minorities do have the right to self-determination, or b) it is possible for an ethnic minority to become a ‘people’ and thus acquire the right to self-determination[46]. According to Tsanava, citing Kosovo’s 1990 declaration of independence, the ‘people’ of Kosovo are Albanians[47]. Since Kosovar Albanians “are the same group as Albanians in Albania,” which have already exercised their right to self-determination, they are not a ‘people’ but rather an ‘ethnic minority’ living in Serbia[48]. This is the very same argument that Makili-Aliyev uses to oppose the Artsakh’s right to self-determination:

Moreover, Nagorno-Karabakh was never a colony, and the Armenian population residing there is in fact a national (ethnic) minority on the territory of the Republic of Azerbaijan and not any kind of “colonial people”. Armenians as peoples in the meaning of [the] UN Charter have already exercised their right to self-determination in the Republic of Armenia. In accordance with international law, minorities do not have the right to self-determination in a broader sense, due to the fact that their “nation” (people) has already exercised the right to self-determination in their own territory. In the case of the Nagorno-Karabakh Conflict, that territory is the Republic of Armenia[49].

Balayev makes a similar argument in his analysis of the legal status of Artsakh[50]. The ICJ, the principle judicial organ of the UN, would appear to disagree with this view, since as described above it found that the secession of Serbia’s Albanian minority in Kosovo did not violate international law. Though the ICJ did not elaborate on its legal methodology, since Kosovo’s declaration of independence did not violate international law, either ethnic minorities, such as Albanians in Serbia and Armenians in Azerbaijan, have the right to self-determination including secession; or, it is possible for such ethnic minorities to somehow become a ‘people’ under international law and acquire that right[51]. In the final analysis, the claim that Artsakh does not have the right to self-determination including secession on the basis of its population being an ‘ethnic minority’ and not a ‘people’, if not discredited altogether, is extremely dubious in light of Kosovo’s internationally recognize secession from Serbia.

The NKR’s Secession Violates the Territorial Integrity of Azerbaijan. This is by far the most commonly cited argument against Artsakh’s right to self-determination and independent statehood. Again, however, like the arguments examined above, there are more holes in this argument than supporters of Azerbaijani territorial integrity seem willing to acknowledge.

Territorial integrity is, like this argument presupposes, not inviolable. For almost a century international law has imposed limits to the principle of territorial integrity, especially if the rights of an ‘ethnic minority’ or ‘people’ are being threatened or violated. In 1921, the Commission of Rapporteurs, established by the League of Nations to recommend a resolution to the Ǻland Islands dispute, implicitly endorsed secession if the rights of the Ǻland Islanders were being threatened:

But what reasons would their be for allowing a minority to separate itself from the State to which it is united, if this State gives it the guarantees which it is within its rights in demanding, for the preservation of its social, ethnical or religious character? Such indulgence, apart from every political consideration, would be supremely unjust to the State prepared to make these concessions.

The separation of a minority from the State of which it forms a part…can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees[52].

Separation was rejected by the Commission in the case of the Ǻland Islands dispute, not because it violated Finland’s territorial integrity, but because it was deemed to be unnecessary. Finland’s territorial integrity was directly linked by the Commission to both its ability and willingness to protect the rights of the Ǻland Islanders:

If it were true that incorporation with Sweden was the only means of preserving its Swedish language for Aaland, we should not have hesitated to consider this solution. But such is not the case. There is no need for separation. The Finnish state is ready to grant the inhabitants satisfactory guarantees and faithfully to observe the engagement which it will enter into with them: of this we have no doubt[53].

Similar provisions have been incorporated into post-WWII international legal treaties. Principle 5, paragraph 7 of the DFR reads:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour[54].

According to Glen Anderson, “[a]n a contrario reading of the foregoing indicates that only those ‘States conducting themselves in compliance with the principle of equal rights and self-determination of peoples… and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour’ will be guaranteed their ‘territorial integrity or political unity.’”[55] Anderson thus concludes:

Paragraph 7 thus stipulates that if a state does not represent the whole population, or discriminates on the grounds of race, creed or colour, it is in violation of the right to self-determination and therefore illegitimate. In order to rectify this situation, secessionist activities that would “dismember or impair, totally or in part the territorial integrity or political unity of sovereign and independent States” appear to be implicitly endorsed. On this basis it can be argued that Paragraph 7 contains a right to UNC [Unilateral Non-Colonial] secession[56].

Kristina Roepstorff shares Anderson’s interpretation of the DFR. “The Declaration,” Roepstorff writes, “clearly established that territorial integrity is conditional on the performance of the government in question and on the extent to which the government respects the self-determination of peoples residing in its territory.”[57]

An examination of the ‘performance’ of the Azerbaijani government in the protection of its Armenian population demonstrates beyond a reasonable doubt that Azerbaijan is neither willing nor able to offer the kind of guarantees that Armenians are within their rights to demand. Unlike the Swedish population of the Ǻland Islands, Azerbaijan’s Armenian population, both in Artsakh and elsewhere, have been the victims of egregious crimes committed by Azerbaijan and its Turkish allies, first in 1918-20 and then again in 1988-94.

Today anti-Armenian sentiment remains widespread in Azerbaijan, threatening the rights of Azerbaijan’s Armenian population, a fact that has been condemned internationally. In its 2008 report, the Organization for Security and Cooperation in Europe (OSCE) criticized the Azerbaijani regime for “implementing [a] large-scale propaganda campaign, disseminating racial hatred and prejudice against Armenians,” thus obstructing negotiations[58]. The Israeli newspaper, Haaretz, implored Israel to not sell any weapons to Azerbaijan, a close Israeli ally, due to Azerbaijan’s genocidal policies towards Armenians[59]. Indeed, several Azerbaijani officials have openly called for the ethnic cleansing of Armenians. Just before the Sumgait pogrom, Hidayat Orujev, warned Armenians living in Sumgait: “If you do not stop campaigning for the unification of Nagorno Karabakh with Armenia, if you don’t sober up, 100,000 Azeris from neighboring districts will break into your houses, torch your apartments, rape your women, and kill your children.”[60] Orujev later went onto serve as Azerbaijan’s State Advisor for Ethnic Policy and later as head of the State Committee for Work with Religious Organizations! In 2005, the former mayor of Azerbaijan’s capital, Baku, reportedly told a visiting German delegation: “Our goal is the complete elimination of Armenians. You, Nazis, already eliminated the Jews in the 1930s and 40s, right? You should be able to understand us.’”[61]

The fate of the Armenian population and culture elsewhere in Azerbaijan offers valuable insight as to what would happen if Azerbaijan ever managed to seize control of Artsakh. In what has been described as “the worst cultural genocide of the 21st century,” Azerbaijani authorities have been engaged in a systematic campaign to cleanse the historic Armenian territory of Nakhichevan of its Armenian culture[62]. Researcher Argam Ayvazyan has documented the destruction of 89 Armenian churches, 5,840 ornate khachkars, and 22,000 horizontal tombstones, among other Armenian monuments, in Nakhichevan between 1997-2006[63]. This includes the largest ancient Armenian necropolis in the world, and act of cultural cleansing which, according to Simon Maghakyan and Sarah Pickman, exceeds even the Islamic State’s destruction of Palmyra[64].

Armenians in Artsakh justifiably fear such ‘cultural genocide’ if Artsakh is ever incorporated into Azerbaijan. When asked why Artsakh continues to resist, one resident replied: “Well, who wants to be a Palestinian? Look at how everybody treats them. Look at how even their fellow Arabs treat them. Who wants to be a refugee? It’s better to fight and die here.”[65]

By all standards Azerbaijan fails to meet the criteria of a state “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. This is of paramount importance when evaluating Artsakh’s status under international law. As the Commission of Rapporteurs, the DFR, and other international legal bodies and treaties have made clear, the territorial integrity of a state is conditional upon that state’s ability and willingness to ensure the protection of its ‘ethnic minorities’ and ‘people’. Returning to the case of the Ǻland Islands there can be no question that the Commission of Rapporteurs would have recommended separation from Finland if the latter had committed the kind of systematic ‘cultural genocide’ that Azerbaijan has in Nakhichevan. International law, Anderson (cited by Ilya Berlin) notes, “draws a link between internal and external self-determination: the neglect of the former provides justification for the invoking of the latter, which may be exercised by UNC [Unilateral Non-Colonial Secession] secession.”[66]

The existence of many internationally recognized states, moreover, discredits the claim that territorial integrity is an inviolable principle. East Pakistan’s secession from Pakistan as ‘Bangladesh’ in 1971, described above, which was in violation of the territorial integrity of Pakistan, is an example of a non-colonial territory becoming an internationally recognized state. Even Azerbaijan’s secession from the USSR was not in accordance with international law. “Unlike the Baltic States,” writes Cassese, “the remaining twelve Soviet republics,” which includes Azerbaijan, “had no right of self-determination, let alone secession, under current international law.”[67]

Some might agree with Potier’s assessment that “‘Secession’, like ‘revolution’, is not a right, but it can be a consequence.”[68] The problem with this assessment, however, is that it ignores how international legal bodies have in some cases not only endorsed (ICJ) the violation of the principle of territorial integrity but have even orchestrated it (UN). At the risk of repeating myself, the ICJ endorsed the violation of the principle of territorial integrity in its report on Kosovo. If territorial integrity is indeed inviolable, Kosovo’s declaration of independence should have violated international law since it violated the territorial integrity of Serbia. But according to the ICJ Kosovo’s declaration of independence did not violate international law, the implication being that territorial integrity, in this case Serbia’s, is not inviolable.

The UN even more openly disregarded the principle of territorial integrity during its handling of the decolonization process in the Belgian-administered Rwanda-Urundi and the British-administered Cameroons. Territorial integrity is closely linked with another principle of international law that was widely endorsed in the era of decolonization in the 1960s and 1970s: uti possidetis juris[69]. Intended as a means of avoiding fratricidal, territorial and other conflicts in newly independent, post-colonial states[70], the essence of uti possidetis juris is that “new states will come to independence with the same boundaries that they had when they were administrative units within the territory or territories of one colonial power.”[71] Based on the UN’s handling of the decolonization of Rwanda-Urundi and the British Cameroons one can reasonably argue that neither principle (territorial integrity and uti possidetis juris) is inviolable. In both cases the UN supervised the splitting up of these former colonial territories: Rwanda-Urundi into two separate and independent states, Rwanda and Burundi, and the integration of the British Cameroons into two different states (the Northern Cameroons joined Nigeria while the Southern Cameroons joined the former French colony Cameroon)[72]. Thus, in both cases, Cassese writes, the UN was “instrumental in making the principle of self-determination prevail over that of territorial integrity” and uti possidetis juris[73].

If the territorial integrity of states, and the concomitant principle of uti possidetis juris, are inviolable, then a large number of internationally recognized states, not least of which is Azerbaijan, should not exist. They must consequently be de jure integral parts of existing states, such as Russia in the case of Azerbaijan, Pakistan in the case of Bangladesh, and Serbia in the case of Kosovo, less the territorial integrity of those states be violated. This is the logical conclusion of the inviolability of territorial borders. Yet to my knowledge no opponent of the Artsakh’s right to self-determination including secession has been willing to challenge the legitimacy under international law of Bangladesh, Kosovo, Burundi, Azerbaijan, or any number of other states.

Finally, before concluding this discussion, there is one last point that needs to be made when examining the territorial integrity argument made by Azerbaijan’s leaders and other opponents of the Artsakh’s right to self-determination including secession. That the territorial integrity of Azerbaijan is nothing more than a deception used by Azerbaijan’s leaders to extend their control to Artsakh is most clearly demonstrated in their complete disregard for the territorial integrity of other states. Simultaneously as Azerbaijani leaders argue that Artsakh’s secession violates the territorial integrity of Azerbaijan, Azerbaijani leaders threaten the territorial integrity of Iran by calling for the unification of all Azerbaijani peoples.

Divided by the Treaty of Turkmanchai (1828) between tsarist Russia and Persia, the Republic of Azerbaijan consists of only a small portion of all Azeri populated territory. The majority of Azeris inhabit ‘Southern Azerbaijan’ in Iran, where they form Iran’s largest ‘ethnic minority’. This has been a significant source of tension between the two countries. In the 1990s, then-President of Azerbaijan Abulfaz Elchibey claimed he was defending the territorial integrity of Azerbaijan against Armenian aggression. At almost the same time Elchibey repeatedly attacked Iran’s leaders and called for the ‘reunification’ of Azerbaijan with ‘Southern Azerbaijan’[74]. After he was deposed in a coup d’état in 1993, Elchibey stepped up his demands for Azerbaijan’s ‘reunification’, declaring in 1998 at a congress in Turkey:

The creation of the Democratic Republic of Azerbaijan in some Northern Azerbaijani lands in 1918-21, and its restoration…in 1991, do not mean that Azerbaijan’s national liberation movement is over…The new stage will end with the creation and or [sic] restoration of united Azerbaijani statehood…Already [in Iran] there are active organizations, whose sole purpose is the national independence of the Azeri Turks[75].

Elchibey went even further when he directly linked Azerbaijan’s defeat in the war with Artsakh and Armenia with the division of Azeri lands:

If we look at the map we will clearly see the ties that link the solution of the Karabakh problem with that of the South[ern Azerbaijan], and with the Nakhichevan issue, and generally with the problem of the Armenian aggression. Precisely, it is impossible to find a comprehensive solution of these problems, especially the problems resulting from the Armenian aggression, without the solution of the problem of the South[ern Azerbaijan]. The failures that we encountered in our fights against Armenian aggression in the [1980s] and [1990s] is the result of Azerbaijan being separated[76].

Elchibey’s irredentist claims to Iranian territory is a flagrant disregard for the territorial integrity of Iran. Not even Armenia ‘claims’ Artsakh for itself. It is difficult to take seriously claims by Azerbaijani leaders that Artsakh’s right to self-determination including secession violates Azerbaijan’s territorial integrity when they have shown such disregard for the territorial integrity of Iran. Indeed, as Cameron S. Brown notes, Azerbaijan’s leaders have used some of the very same arguments for the unification of the ‘two’ Azerbaijans, in violation of Iran’s territorial integrity, that Armenians have used to justify Artsakh’s secession and/or incorporation into Armenia, which Azerbaijan staunchly opposes:

…the Azerbaijani claim to control over Karabakh seems to rest on the notion of the sanctity of historic state borders and territorial integrity, claiming that even if an ethnic minority has a majority in a given region of a country, it is not sufficient grounds for gaining full independence or being annexed to a bordering country. Simultaneously, the often-irredentist Azerbaijani claims vis-à-vis Iran’s northwest Azerbaijani provinces are based on precisely the opposite claim. Azerbaijani nationalists maintain that even though the two Azerbaijans have been split for almost two centuries — and despite the fact that when they were unified, it was as part of an Iranian empire — this split is an historic lapse, a tragedy that split an ethnic group in half, and a wrong which must be corrected. (The irony, of course, is that this is also the type of claim Armenia makes regarding Karabakh.)[77]

While the most obvious and significant for our analysis, Iran is not the only state whose territorial integrity has been threatened by Azerbaijani leaders, however. The leaders of Azerbaijan’s Nakhichevan Autonomous Republic, where both Elchibey and his successor Heydar Aliyev, father of the current President Ilham Aliyev, were born, and which has been engaged in systematic destruction of Armenian culture (see above), have recognized the Turkish Republic of Northern Cyprus (TRNC)[78].

The ethnic and administrative division of Cyprus shares many similarities with the Nagorno-Karabakh conflict, except that, in Cyprus, Turkey and the Azerbaijani leadership in Nakhichevan back the separatists, for the same reasons Armenia supports Artsakh. As described above, Armenians in Artsakh rightfully feared the rise of Azeri nationalism and the loss of their national rights when Azerbaijan became independent from the USSR in 1991, culminating in intercommunal violence and war between Armenians in Nagorno-Karabakh, supported by Armenia, and Azerbaijan. Likewise, when Cyprus achieved independence from Britain in 1960, Turkish Cypriots justifiably feared the rise of Greek nationalism, in the form of enosis, the movement for the unification of Cyprus with Greece, and the loss of their national rights[79]. Rising tensions between the two communities led to outbreaks of intercommunal violence in the 1960s, in which Cypriot civilians, mostly Turks, “suffered something little short of localized ethnic cleansing,” writes Benjamin Lieberman[80]. After Greece’s military junta attempted to annex Cyprus in the 1974 coup d’état[81], Turkey invaded Cyprus, and Turkish Cypriots organized themselves into the Turkish Federated State of Cyprus in 1975, which later declared itself independent from Cyprus in 1983 as the TRNC. Today the TRNC, whose independence is recognized only by Turkey and Nakhichevan, is internationally recognized as an integral part of Cyprus under Turkish military occupation. Azerbaijan itself is moving increasingly towards recognition of the TRNC, with President Aliyev declaring that “Northern Cyprus should escape from its international isolation and we are ready to help it with this.”[82]

It is exceedingly difficult to take seriously claims by Azerbaijani leaders that Artsakh’s secession and its alleged occupation by Armenia is a violation of Azerbaijan’s inviolable territorial integrity, when: a) Azerbaijan has its own irredentist claims to Iran’s Azeri-population territories, in violation of Iran’s territorial integrity, that are identical to Armenian irredentist claims to Artsakh, and b) Azerbaijani leaders in Nakhichevan have recognized the independence of the TRNC, in violation of the territorial integrity of Cyprus, and have backed the Turkish military intervention there to prevent the very destruction of the Turkish Cypriot community and their culture that they themselves have committed against the Armenian community and their culture in Nakhichevan. 

The arguments made against Artsakh’s right to self-determination and in support of Azerbaijan’s territorial integrity by Western-oriented scholars are easily discredited and cannot hold up against basic historical and legal examination. The fact that many of these scholars hesitate to examine the implications of Kosovo’s secession from Serbia, claiming that this was a political and not a legal act, as if politics and law can be so readily separated, adds further credence to this conclusion.

[1] Unrepresented Nations and Peoples Organization (UNPO), “Self-Determination,” Unpo.org (Unrepresented Nations and Peoples Organization (UNPO), September 21, 2017), https://unpo.org/article/4957.

[2] Tim Potier, Conflict in Nagorno-Karabakh, Abkhazia, and South Ossetia: A Legal Appraisal (The Hague: Kluwer Law International, 2001), 21.

[3] Potier, 21.

[4] Potier, 21.

[5] Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1998), 11-12.

[6] Cassese, 12; Potier, 21.

[7] Potier, 22.

[8] Vladimir Lenin and Joseph Stalin, “Declaration of the Rights of the People of Russia,” Marxists Internet Archive, November 15, 1917, https://www.marxists.org/history/ussr/government/1917/11/02.htm.

[9] Potier, 22.

[10] Anne Pierce, Woodrow Wilson and Harry Truman: Mission and Power in American Foreign Policy. (Westport: Greenwood Publishing Group, 2003), 84.

[11] Erez Manela, The Wilsonian Moment: Self-Determination and the International Origins of Anticolonial Nationalism (Oxford: Oxford University Press, 2007), 34.

[12] Potier, 23.

[13] Kamal Kamal Makili-Aliyev, Contested Territories and International Law: A Comparative Study of the Nagorno-Karabakh Conflict and the Aland Islands Precedent (New York: Routledge, 2020), 32.

[14] Boris Yeltsin Presidential Library, “The Treaty of Fredrikshamn Was Signed 210 Years Ago,” Boris Yeltsin Presidential Library, September 17, 2019, https://www.prlib.ru/en/history/619545.

[15] Makili-Aliyev, 34-35.

[16] Makili-Aliyev, 35.

[17] Jing Lu, On State Secession from International Law Perspectives. (Springer, 2018), 108.

[18] Cassese, 33; Potier, 24.

[19] Cassese, 37; Potier, 24.

[20] Cassese, 75.

[21] Diakonia International Humanitarian Law Centre, “International Law and Self-Determination,” Diakonia International Humanitarian Law Centre, accessed October 4, 2020, https://www.diakonia.se/en/IHL/The-Law/International-Law1/IL–Self-Determination/.

[22] Abdelhamid El Ouali, Territorial Integrity in a Globalizing World: International Law and States’ Quest for Survival (New York: Heidelberg, 2012), 1.

[23] El Ouali, 1.

[24] Commission on Security and Cooperation in Europe, “Territorial Integrity,” Commission on Security and Cooperation in Europe, accessed September 18, 2020, https://www.csce.gov/issue/territorial-integrity.

[25] Heiko Krüger, The Nagorno-Karabakh Conflict: A Legal Analysis (Berlin: Springer, 2010), 50.

[26] Mark W. Zacher, “The Territorial Integrity Norm: International Boundaries and the Use of Force,” International Organization 55, no. 2 (2001): 216, https://www.jstor.org/stable/3078631.

[27] Zacher, 216-217.

[28] Henry Kissinger, World Order (New York: Penguin Books, 2015), 3.

[29] Zacher, 217.

[30] Alex Callinicos, “Does Capitalism Need the State System?,” in Marxism and World Politics: Contesting Global Capitalism, ed. Alexander Anievas (New York, NY: Taylor and Francis, 2010), 58.

[31] Lenin, The Right of Nations to Self-Determination,  https://www.marxists.org/archive/lenin/works/1914/self-det/ch01.htm

[32] Lenin, The Right of Nations to Self-Determination,  https://www.marxists.org/archive/lenin/works/1914/self-det/ch01.htm

[33] Dani Rodrik, “Why Nation-States Are Good,” Aeon, October 2, 2017, https://aeon.co/essays/capitalists-need-the-nation-state-more-than-it-needs-them.

[34] Cassese, 22.

[35] Cassese, 39-41.

[36] Levon Chorbajian, “Introduction,” in The Making of Nagorno-Karabagh: From Secession to Republic, ed. Levon Chorbajian (London: Palgrave, 2001), 11.

[37] Makili-Aliyev, 18.

[38] Daria Isachenko, The Making of Informal States: Statebuilding in Northern Cyprus and Transdniestria (New York: Palgrave Macmillan, 2012), 14.

[39] Bahruz Balayev, The Right to Self-Determination in the South Caucasus: Nagorno Karabakh in Context (Lanham: Lexington Books, 2013), 172-173.

[40] Ieva Vezbergaite, “Remedial Secession as an Exercise of the Right to Self-Determination of Peoples” (LLM Thesis, 2011).

[41] Steven Wheatley, Democracy, Minorities and International Law (Cambridge, UK; New York, NY: Cambridge University Press, 2005), 77.

[42] Rosalyn Higgins, “ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the OPT – Separate Opinion of Judge Higgins – ICJ Document,” Question of Palestine, 2004, https://www.un.org/unispal/document/auto-insert-208728/.

[43] Krüger, 55.

[44] Krüger, 56.

[45] Tinatin Tsanava, “Do Minorities Have the Right to Self-Determination: Comparative Analysis of Kosovo and Chechnya” (LL.M: Short Thesis, 2011), http://www.etd.ceu.hu/2011/tsanava_tinatin.pdf, 3.

[46] Tsanava, 33-36.

[47] Tsanava, 36.

[48] Tsanava, 36.

[49] Makili-Aliyev, 19.

[50] Balayev, 158.

[51] Tsanava, 33-36.

[52] Cassese, 31.

[53] Cassese, 32.

[54] Glen Anderson, “Unilateral Non-Colonial Secession and the Use of Force: Affect on Claims to Statehood in International Law,” Connecticut Journal of International Law 28 (September 24, 2013): 36, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2319201.

[55] Anderson, 36.

[56] Anderson, 36.

[57] Kristina Roepstorff, The Politics of Self-Determination: Beyond the Decolonisation Process (London: Routledge, 2013), 17.

[58] “Anti – Armenian Propaganda and Hate Dissemination Carried out by Azerbaijan as a Serious Obstacle to the Negotiation Process” (Organization for Security and Co-operation in Europe, 2008), https://www.osce.org/odihr/34195?download=true.

[59] Yair Auron, “Israel Must Not Sell Arms to the Azeris,” Harretz, October 26, 2014, https://www.haaretz.com/opinion/.premium-dont-sell-arms-to-the-azeris-1.5319906.

[60] United States Congress, United States Congressional Record: Proceedings and Debates of the 113th Congress First Session, vol. 159 (U.S. Government Printing Office, 2012), 2146.

[61] United States Congress House Committee on Foreign Affairs, The Caucasus: Frozen Conflict and Closed Borders: Hearing before the Committee on Foreign Affairs, House of Representatives, One Hundred Tenth Congress, Second Session, vol. 4 (U.S. Government Printing Office, 2008), 50.

[62] Catherine Womack, “Historic Armenian Monuments Were Obliterated. Some Call It ‘Cultural Genocide,’” Los Angeles Times, November 7, 2019, https://www.latimes.com/entertainment-arts/story/2019-11-07/armenian-monuments-azerbaijan.

[63] Catherine Womack, “Historic Armenian Monuments Were Obliterated. Some Call It ‘Cultural Genocide,’” Los Angeles Times, November 7, 2019, https://www.latimes.com/entertainment-arts/story/2019-11-07/armenian-monuments-azerbaijan.

[64] Dale Berning Sawa, “Monumental Loss: Azerbaijan and ‘The Worst Cultural Genocide of the 21st Century,’” The Guardian, March 1, 2019, https://www.theguardian.com/artanddesign/2019/mar/01/monumental-loss-azerbaijan-cultural-genocide-khachkars.

[65] Chorbajian (2001), 25-26.

[66] Ilya Berlin, “Unilateral Non-Colonial Secessions: An Affirmation of the Right to Self-Determination and a Legal Exception to the Use of Force in Self-Determination and a Legal Exception to the Use of Force in International Law International Law” (2017), https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=6699&context=etd.

[67] Cassese, 264.

[68] Potier, 36.

[69] Stephen Allen, The Chagos Islanders and International Law (Oxford: Hart Publishing, 2014), 201.

[70] Allen, 201.

[71] Allen, 201.

[72] Cassese, 78.

[73] Cassese, 78.

[74] Alexander Murinson, Turkey’s Entente with Israel and Azerbaijan: State Identity and Security in the Middle East and Caucasus (New York: Routledge, 2010), 34–35.

[75] Murinson, 34-35.

[76] Cameron S. Brown, “Wanting to Have Their Cake and Their Neighbor’s Too: Azerbaijani Attitudes Towards Karabakh and Iranian Azerbaijan,” Middle East Journal 58, no. 4 (2004): 588, https://www.jstor.org/stable/4330064?seq=1.

[77] Cameron S. Brown, “Wanting to Have Their Cake and Their Neighbor’s Too: Azerbaijani Attitudes Towards Karabakh and Iranian Azerbaijan,” Middle East Journal 58, no. 4 (2004): 577–578, https://www.jstor.org/stable/4330064?seq=1.

[78] Elaine Thomopoulos, The History of Greece (Santa Barbara, CA: Greenwood, 2012), 162; International Business Publications, USA, Cyprus Foreign Policy and Government Guide: Strategic Information and Developments (Washington, D.C.: International Business Publications, USA, 2010), 185.

[79] Isachekno, 37-41.

[80] Benjamin Lieberman, Terrible Fate: Ethnic Cleansing in the Making of Modern Europe (Lanham: Rowman & Littlefield, 2013), 264.

[81] Yiannis Papadakis, “Nation, Narrative and Commemoration: Political Ritual in Divided Cyprus,” History and Anthropology 14, no. 3 (June 3, 2010): 265, https://doi.org/10.1080/0275720032000136642.

[82] Rufat Abbasov, “Azerbaijan Embraces Northern Cyprus,” Institute for War and Peace Reporting, July 28, 2005, https://iwpr.net/global-voices/azerbaijan-embraces-northern-cyprus.

%d bloggers like this: