Legal aspects of the Nagorno-Karabakh conflict (Armenia v. Azerbaijan) (2020).


Context

The Nagorno-Karabakh conflict is a dispute between the South Caucasus nations of Armenia and Azerbaijan over the province known as ‘Nagorno-Karabakh’. It also concerns various smaller surrounding provinces; the wider region including these provinces is usually called ‘Karabakh’). The dispute has many aspects to it, whether it be ethnic tensions, territorial or political squabbles. The modern conflict emanated from the final years of the Soviet Union, when ethnic Armenians in the Karabakh demanded that the region be transferred from Soviet Azerbaijan to Soviet Armenia. The dispute has essentially continued to this day with many describing it as a ‘frozen’ Soviet-era war. While Armenia’s goal is to unify Karabakh with Armenia, Azerbaijan aims to keep the region within its territory. Under the Soviet Union, the Karabakh region was still part of Azerbaijan; after its collapse, war broke out between Armenia and Azerbaijan over the region until ceasefire in 19941. There have been a number of different skirmishes since then, resulting in numerous casualties on both sides. However, the most recent of these conflicts may be the most serious.


As mentioned above, there are strong ethnic undertones to the conflict. Armenians make up the majority of Armenia’s population, and a majority are Orthodox Christians, most often as members of the Armenian Apostolic Church). Conversely, Azeris, a Turkic people group, make up the majority of the population in Azerbaijan (hence the close diplomatic ties to Turkey), and largely follow Shia Islam. Both ethnic groups have previously lived among each other peacefully as both were spread out among the South Caucasus area. More recently, both nations have sought to create homogeneous states around their majority ethnic groups, leading to inevitable disputes. The ethnic make-up of the disputed Karabakh region is now 99.7% Armenian2, which has fuelled calls by many in Armenia asking for unification with Karabakh. Azerbaijan claims that the ethnic dominance of Armenians in the region is due to ethnic cleansing at the behest of the Armenian State, as well as the migration of Azeri peoples due to conflict in the area. Whether or not these claims can be validated, it is true that Azeris did represent up to 20% of the region’s population until 1989.


This essay will analyse whether Armenia or Azerbaijan is responsible for the violation of use of force found in Article 2.4 of the UN charter3 during the most recent conflict in 2020. Firstly, analysing the legal status of the Karabakh region, it will conclude that the region is part of Azerbaijan and not an independent nation or has any other legal status. Following this, the wording, case law and potential justifications for use of force will be analysed to conclude that Armenia is responsible for the violation of Article 2.4


The Legal Status of Nagorno Karabakh

Article 2.4 of the UN Charter4 references a number of different concepts: ‘international relations,’ ‘territorial integrity’ and ‘political independence.’ All of these concepts are distinct, with their own nuisance, and are also important in deciding whether Article 2.4 has been violated. Thus, it is important to explore the legal status of the disputed area as we can then conclude which of these concepts are engaged across the course of the conflict. This analysis is also of particular importance as the Karabakh region is de facto controlled by a self-styled state named the ‘Republic of Artsakh.’

The primary source of law on whether or not a state has statehood can be found in the Montevideo Convention of 19335, which is an expression of what used to be International Customary Law. Article 16 sets four requirements for a state to be legal under international law: (1) permanent population, (2) a defined territory, (3) government and (4) capacity to enter into legal relations. By analysing each in turn we will conclude that Artsakh, while in de facto control of the area, is de jure part of Azerbaijan, which will have implications on further analysis.


Firstly, there must be a permanent population. This is true for Artsakh as it has an approximate population of around 150,0007. It is important to note also that size is not important and nor is ethnic makeup of the area, only that there must be firm allegiance to the state on the basis of shared nationality. Although we cannot for certain say whether this is true, we can assume so and conclude that this (potentially the easiest criterion) is satisfied.


The second requirement is to have a defined territory. This includes a core territory, which could be considered to be the Nagorno-Karabakh province. There is no need to have undisputed borders as per the ICJ North Sea Case.8 This is an important distinction, as there are many disputes as to the borders of this region. Artsakh and Armenian forces control and occupy seven of Nagorno-Karabakh’s surrounding provinces. These provinces may or may not be considered in an analysis of the region, however it is important to note that occupation in of itself does not automatically make an area part of a potential state’s territory.


For a state to be legal in international law, it must have an effective government, which means that it must be sovereign and free from external domination. However, there is no requirement for a government to be democratic. Due to the ethnic makeup of Artsakh, which is almost exclusively made up of Armenians, Artsakh has very close relations with Armenia. In fact, it is reliant on Armenia for many functions and as such cannot be said to be sovereign or free from external domination. This is especially due to the fact that Armenia has occupied the area since 1993. Multiple UN Security Council Resolutions were passed in 1993 requesting that Armenia withdraw its forces from the area,9 however this has not happened.


The final requirement for statehood is capacity to enter into foreign relations. Artsakh is not recognised by any UN member state - not even Armenia. As such, any foreign relations it does have are unofficial and unrecognised. Whether or not it engages in diplomacy, however, is immaterial to statehood. Due to Artsakh being unrecognised and being such a disputed region, we can conclude that it does not in fact have the capacity to enter into foreign relations.


As discussed above, the only requirement which Artsakh can comfortably satisfy is the first (population) requirement. The second requirement (defined territory) is questionable. However, the third (effective government) and fourth (capacity to enter into foreign relations) would very likely not be satisfied. We can therefore conclude that, under the Montevideo convention 1933, the Republic of Artsakh would not be considered a state and thus it is part of Azerbaijan.


The Current Conflict and Article 2.4

It is important to note that the following details of skirmishes, assaults and military action are taken primarily from the reports from both parties rather than outside sources. However, the substance of the actions of both nations remains generally quite clear for the purpose of analysis of such, it is suitable for the purpose of analysis against Article 2.410, which provides that ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’


According to Armenia and Artsakh, clashes began when Azerbaijan fired artillery at civilian settlements along the conflict line in the morning of September 27th. Azerbaijan, conversely, claimed that the conflict started 2 hours earlier when Armenia started shelling Armenian settlements, including the capital of Artsakh, Stepanakert. Whichever report is true is immaterial, as what then ensued was an escalation of fighting on both sides. Azerbaijan continued to make inroads into Artsakh and fighting between Armenian and Artsakh forces with Azerbaijan has continued to this day (despite the number of ceasefires which have been called).11 What is clear however, is that Armenian forces have attacked Azerbaijani territory because, as concluded above, Artsakh is legally territory of Azerbaijan. In addition, Armenia has reportedly attacked areas not previously occupied, such as Azerbaijan’s second largest city, Ganja12. Azerbaijan, on the other hand, has focused on its own efforts on Armenian occupied territory surrounding Nagorno Karabakh, as well as Nagorno Karabakh itself, and the self-styled Republic of Artsakh. As such, Azerbaijan has stayed within its borders, whereas Armenia’s involvement has originated an inter-state dispute. With this being said, this essay will examine this with regards to Article 2.4 and explore why Armenia’s involvement constitutes a violation of this article, whereas Azerbaijan’s involvement can be justified.


As stated, Armenia’s involvement is what makes the dispute one of international relations, making Article 2.4 relevant. Both sides have moved beyond threats of use of force, and armed conflict has taken place from both sides. The question is whether Armenia has used this force to violate the territorial integrity of Azerbaijan. As seen in the Corfu Channel Case13 the ICJ will not accept that a country's use of force is justified merely because they believe that they have not violated the territorial or political integrity of another nation. In the present situation, Armenia, believing that Artsakh should either be independent or unified with Armenia, may seek to use this argument as a justification for their use of force. However, it is clear that it would not be accepted, as we have previously established that the disputed area is territory of Azerbaijan under international law.


Other examples of the inter-state violations of Article 2.4 can be seen through UN security council resolutions. Angola issued a complaint to the Security Council about a number of attacks by South African forces which violated their territorial integrity. These acts of aggression were strongly condemned by the Security Council, which called for the full and complete withdrawal of all South African occupying forces in Angola14. Another example of this can be seen in Security Council Resolution 611 (1988)15 which condemned the acts of aggression by Israel towards Tunisia in violating its territorial integrity, and also urged Member States of the United Nations to take measures to prevent such acts against the sovereignty and territorial integrity of all States.16


In addition to the above examples, as mentioned above there are important Security Council resolutions relating to the Nagorno Karabakh conflict which, although nearly 30 years old, still stand today. This reiterates the position of Azerbaijan’s territorial integrity, as well as why Armenia is purported to have violated it. Resolution 822, 853, and 874 (all made in 1993)17 all called for either cessation of hostilities or preservation of ceasefire, and, importantly, the withdrawal of Armenian troops from the occupied areas of Azerbaijan, Nagorno Karabakh, and the surrounding districts (the self-styled Republic of Artsakh). This reiterates the position that the continued Armenian occupation is contrary to international law. Furthermore, the last resolution, also in 1993 (884)18 calls for the Armenian government to use its influence to urge Armenians in the Nagorno Karabakh region (of Azerbaijan) to comply with previous resolutions. This not only shows the Armenian influence over the conflict, but also the extent to which its involvement is to blame for much of the escalation. It would be remiss to mention that all of the aforementioned Security Council resolutions also call on both parties to resume negotiations within the framework of the OSCE19. With that said, as the conflict has continued, have the parties

used unnecessary force? This is a political, rather than a legal question, especially due to the fact that both sides have continued in their use of fork from1993 to the present day.


Another important instrument with regards to the use of force is the Helsinki Final Act 197520. Article 421 reiterates that states need to respect the territorial integrity of other states. It is for this reason that it is purported that Armenia has violated Article 2.4, as it has not respected the territorial integrity of Azerbaijan, having conducted military operations within its territory. In addition, while reiterating the importance of the non-use of force it also notes that states should refrain from ‘military occupation or other direct or indirect measures of force in contravention of international law.22’ This, in combination with the Security Council resolutions relating to Nagorno Karabakh, highlights that the Armenian occupation and use of force violate the territorial integrity of Azerbaijan.


Within the Helsinki Final Act 1975, Article 8 also reiterates self-determination. Article 823 states that ‘by virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference.’ This principle may likely be relied upon by Armenia to justify their use of force, however this can be easily rebutted by considering the context of the conflict as a whole, and the legal status of the Karabakh region. As mentioned above, Nagorno Karabakh and the surrounding regions occupied by Armenia do not satisfy the Montevideo Convention 199324 on requirements of statehood and thus, despite the de facto governance of the area by Artsakh, the region is part of the territory of Azerbaijan. There are then two opposing principles engaged – the territorial integrity of Azerbaijan, and the self-determination of the people within Artsakh or the Karabakh region. It can be argued that Azerbaijan’s territorial integrity is violated by Armenian attacks not only in Artsakh but also in Azerbaijan proper. As noted by Libarona ‘Within the domain of this provision the notion of territorial integrity is closely linked to the question of the use of external force.25’ Using this idea and the fact that Armenia is an external force in the struggles of the people in Nagorno Karabakh in their potential self-determination we can note that Armenia cannot be justified in claiming that they are aiding in self-determination because of a) their continued illegal occupation and b) the fact that they have attacked areas which do not form part of the Nagorno Karabakh conflict area.

Article 51 of the Charter of the United Nations26 is often also relied upon when in the context of use of force under Article 2.4. This is likely another defence that can be used by Azerbaijan in justifying their potential use of force. The wording of Article 51 is that ‘Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.’

Following this article, it can be argued that Armenia’s continued occupation of Azerbaijan could justify the latter’s potential use of force. The leading case of Nicaragua v. United States of America27 explores the idea of Article 51 as a justification for use of force. In the ruling on this case, the judiciary highlighted the need for an actual “armed attack” in order for self-defence to be invoked. In this case, armed attacks by Armenia are undeniable. Where it is less clear, however, is, as Van Der Steenhoven28 discusses, whether or not state reports of the act of self-defence are potentially detrimental, or even indicative that self-defence was employed. This inconclusiveness means that it will depend highly upon the context of the armed attack. However, as a whole, Article 51 could possibly be employed.


Conclusion

To summarise, it is clear that by concluding that Nagorno Karabakh and the surrounding provinces occupied by Armenia are part of Azerbaijan, the continued occupation and attacks by Armenia on Nagorno Karabakh and Azerbaijan proper violates international law as they violate the territorial integrity of Azerbaijan, whereas Azerbaijan can be argued to be using military action in order to protect this territorial integrity as well as the possible defence of self-defence.


Personal contribution

Notwithstanding the above conclusion of the essay, it would be remiss to not include a paragraph on the last few words of Article 2.4 ‘or in any other manner inconsistent with the Purposes of the United Nations’ and the implications of this on humanitarian law. Article 1 of the UN29 sets out the purpose for which the UN was set up, namely, to promote peace and security, cooperation and importantly in subsection 330, to encourage the respect for human rights. Alongside the UDHR31, which sets out rights member states should strive towards, this highlights a potential violation by both states in their requirement to respect human rights during the conflict. As an example, Human Rights Watch32 reported the use of Cluster Bombs by Azerbaijan. These are bombs which explode into many pieces and therefore are indiscriminate in their potential killing of civilians. Azerbaijan has also accused Armenia of using the same weapons. Neither country is party to the Convention on Cluster Munitions33, however it is still important to note that there is an Ius Cogens rule against indiscriminate killing of civilians. There have been reports on both sides about killing and targeting of civilians and there is also the potential that either side has violated the Geneva Convention34 on the rules of war. In addition to this, both countries are party to the ECHR35 as they are both members of the COE36, as such they have to comply by various articles which protect human rights. Suffice to say, as a personal contribution, emphasis would be placed on the idea that both parties should, if war or armed conflict is absolutely necessary, ensure with the most diligence that they do not violate the human rights of innocent civilians, as it is not only their duty to under international law, but also their moral right to protect civilians at all costs.