Does Nagorno-Karabakh have the legal right to independence?

Day 4,814, 06:34 Published in Armenia Armenia by Chievo.Kevin

For those who still haven’t heard the news, a brutal conflict was recently reignited between Azerbaijan and the ethnic Armenian people of Nagorno-Karabakh.

Hostilities between Christian Armenians and Muslim (Turkic) Azerbaijanis have a long history, but this specific conflict could be best traced to the early days of the Soviet Union. After the 1st WW, when the communist revolution changed Russia into USSR, the newly formed Armenian Republic and the Republic of Azerbaijan were both absorbed by this new entity. Karabakh or as it was historically known “Artsakh” was mostly 80% -95% populated by ethnic Armenians, but Stalin (for various reasons) decided to assign the region to the administration of Azerbaijani SSR.

Usually, when the Nagorno-Karabakh conflict is discussed the question of moral rights overwhelms the conversation. Armenians would argue that Nagorno-Karabakh belongs to Armenians because the native Armenian people were living there thousands of years ago, evidenced by many ancient Armenian monuments and ruins there. Azerbaijanis in turn would often argue that the region belongs to Azerbaijan because it is recognized as such by the international community since the fall of the Soviet Union.

While both arguments are true, it’s not always clear if Nagorno-Karabakh has the legal rights to independence. In this post I won’t be discussing who has the historic or moral rights to the territory, instead, I will explore the question from the perspective of the international law. Does Nagorno-Karabakh have lawful right to independence, or was its declaration of independence unlawful?

There are two main cardinal principles of modern international laws that are of importance here:

1.The right of a people to self-determination.
2.Territorial integrity.

In layman’s terms the first law states that people have the right to freely choose their sovereignty and international political status with no interference. While the second principle advocates for fixed territories among states which should be respected by the rest of the world to avoid acts of aggression.

These principles can become conflicting when invoked by nations at the same time. Different legal scholars place different importance on the principles.

Prince Hans-Adam II of Liechtenstein, speaking to the International Institute for Strategic Studies on 25 January 2001, for example argued for a more flexible approach to territorial integrity, in line with historical norms, saying:

“Let us accept the fact that states have lifecycles similar to those of human beings who created them. Hardly any Member State of the United Nations has existed within its present borders for longer than five generations. The attempt to freeze human evolution has in the past been a futile responsibility and has probably brought about more violence, rather than if such a process had been controlled peacefully. Restrictions on self-determination threaten not only democracy itself but the state which seeks its legitimation in democracy.”

Others, would argue that territorial integrity is more important than the right to self determination and that the right to secede should be respected if and only if the people in question have suffered certain injustices, for which secession is the appropriate remedy of last resort.

So if Nagorno-Karabakh would want to declare independence from Azerbaijan it would infringe on Azerbaijan’s territorial integrity, and Azerbaijan in turn prohibiting secession would impede the right to self-determination of the people of Nagorno-Karabakh.

In that case both principles seem to be in disagreement and this is exactly what most people are debating in the media, without a clear cut answer.

However, and here is the kicker, Nagorno-Karabakh never declared independence from the Republic of Azerbaijan, it declared independence from the Soviet Union itself. Invoking the same constitutional rights as Azerbaijan when it too declared independence from the Soviet Union. Let us look at the Soviet law.

Soviet Union, at the time, had laws and procedures on secession of the republics of the Soviet Union from USSR. Thus the USSR by law allowed every Republic to secede through a referendum if a majority population within the republic voted to leave the Union (see code bellow).

This very law was invoked by all Soviet republics including Azerbaijani SSR when the Soviet Union was collapsing in 1991, to declare their independence.

Now you might say, but wait a minute, Nagorno-Karabakh wasn’t a Republic, it was an Autonomous Region within the Azerbaijan SSR and perhaps therefore the law doesn’t apply to Nagorno-Karabakh. Well, not quite. In fact, not at all. The law applied not just to all soviet republics but equally to autonomous regions. Article 3 of the codex reads:

The peoples of the autonomous republics and autonomous formations retain the right to independently decide on the issue of staying in the USSR or secession from the union republic, as well as to raise the issue of their state and legal status.

See bellow the original:

According to this very law, Nagorno-Karabakh had as much right to declare independence as other republics including Azerbaijan, Armenia, Georgia, Ukraine and the rest.

Let's briefly revisit the historic timeline of events.

Summer – Autumn 1987: Ethnic tensions were rising between the Armenian and Azerbaijani population in and near Nagorno-Karabakh.

November 1987: People of the Nagorno-Karabakh autonomous region (NKAO) held a referendum and collected over 80.000 signatures (almost entire mature population) in support of transferring the Nagorno-Karabakh autonomous region from Azerbaijan SSR to the Armenian SSR.

February 20, 1988: The parliament of NKAO after voting informed the supreme councils of Azerbaijan SSR and Armenia SSR that NKAO wishes to transfer the republic from Azerbaijan SSR to Armenian SSR.
November 1988: Azerbaijanis mounted violent pogroms targeting Armenian citizens living in the Azerbaijani SSR.

June 13, 1988: The Azerbaijani supreme council categorically denied the wishes of the people of Nagorno-Krabakh (although legally they didn’t have the right to deny).

July 7, 1988: The European Parliament adopts a resolution supporting the demands of the people of NKAO for reunification with Soviet Armenia.

July 12, 1988: The parliament of NKAO announced its unilateral secession from the Azerbaijan SSR which at the time was still part of the Soviet Union, and announced its independence as a region within USSR.

September 2, 1991: Nagorno-Karabakh, now legally not a part of Azerbaijan, declares itself to be a Republic within USSR.

November 26, 1991: In response to the declaration of independence of the NKR, the Supreme Council of Azerbaijan annuls the autonomous status of Nagorno-Karabakh and renames Stepanakert to Khankendi. But the USSR Constitutional Oversight Committee declared this decision unconstitutional.

December 10, 1991: Nagorno-Karabakh Republic (NKR) now holds a second referendum, this time on secession from the Soviet Union. The turnout was 82% and almost all 99,98% voted in favour of secession from USSR.

December 26, 1991: The USSR collapses and all the former Soviet republics one by one start to invoke the right to secession and declared themselves independent, through the same means as did NKAO.

January 6, 1992: NKR declares itself an Independent Republic.

Thus the Armenian people of Nagorno-Karabakh held two referendums. One resulting in overwhelming support for secession from Soviet Azerbaijan and the transfer of Nagorno-Karabakh Autonomous Region (NKAO) to the Armenian SSR within Soviet Union and another resulting in overwhelming support for secession from the Soviet Union itself. In 1988, the European Parliament even adopted a resolution supporting the demands of the people of NKAO to unite with Soviet Armenia (See bellow).

Because the people of Nagorno-Karabakh were acting well within the legal framework of the Soviet Union, it is fair to say that they had as much right to independence as any other former Soviet republic, regardless of the two conflicting principles of international law on territorial integrity and the right to self-determination. Azerbaijan itself at the time wasn’t even an independent republic whose territorial integrity was at stake. It was part of the Soviet Union whose laws allowed secession of autonomous regions.

So why then is Nagorno-Karabakh unlike all the other republics still not recognized by the international community as an independent state? The simplest answer to that question is “oil“ Azerbaijan is one of the world’s largest oil and gas producers, and when oil is involved, history tells us international law and human rights are not the primary interest of politicians. 30 years later people are still suffering the consequences. Let’s put an end to this crisis.