Territorial stalemate: independence of Nagorno-Karabakh following the dissolution of the Soviet Union, and its lingering effects decades later.

• Author: Ajemian, Michael

"For Nagorno Karabakh to go back [to] being [a] part of Azerbaijan, somebody needs to bring back Joseph Stalin, who gave Karabakh to Azerbaijan in 1921 against our will, and the Soviet Union, which forcefully kept Karabakh inside Azerbaijan despite numerous popular appeals to the contrary." (1)

1. INTRODUCTION

   Transcaucasia, separating Eastern Europe from Western Asia, is a mountainous region saturated with an extensive history of territorial conflict by ethnic groups seeking sovereignty in the face of confinement within the arbitrary vestigial borders of other states. (2) Nagorno-Karabakh is a small territory in Transcaucasia composed primarily of ethnic Armenians, but located within the internationally recognized borders of Azerbaijan. (3) Subsequent to the downfall of the Soviet Union, the Nagorno-Karabakh Republic gained de facto independence in 1991, on the heels of a destructive war with newly independent Azerbaijan. (4) Since then, the Nagorno-Karabakh Republic has worked energetically towards further democratizing its government with the aim of achieving international recognition of its statehood. (5) As post-Soviet Armenia and Azerbaijan work with international mediators towards resolution of the Nagorno-Karabakh conflict through proposed peace plans, the peace process is endangered by ongoing threats by Azerbaijan to renew hostilities and gain control over the territory by force. (6)

   This Note examines the Nagorno-Karabakh Republic's legal status in the international community, and analyzes whether the Nagorno-Karabakh Conflict can be efficiently resolved within the pre-existing legal framework. (7) Part II discusses relevant laws regarding self-determination, territorial integrity, and validity of territorial boundaries. (8) Part III provides a historical overview of the Nagorno-Karabakh Republic's path to de facto independence. (9) Part IV applies tenets of international law to the Nagorno-Karabakh Conflict to analyze the adequacy of the guiding principles proposed by the Organization for Security and Cooperation in Europe (OSCE) for the resolution of this decades-old conflict. (10) Part V concludes with an argument encouraging the international community to uniformly apply legal norms to secessionist conflicts. (11)

2. SELF-DETERMINATION AND TERRITORIAL INTEGRITY IN INTERNATIONAL LAW

   1. Personhood in the International Community

      The concepts of state autonomy and state personhood seamlessly mesh together. (12) International law views an autonomous state as a "person" in the sense that it has rights, obligations, power to make contracts, possess property, and pursue remedies for legal claims. (13) As stipulated under the Montevideo Convention on Rights and Duties of States (Montevideo), states gain de facto international personhood by possessing: (a) a permanent population; (b) defined territory; (c) government; and (d) capacity to enter into relations with other states. (14) Recognition of a state by third-party states, whether standing alone, or in the collective form of an international body such as the United Nations, is generally a political matter as opposed to a legal action. (15) International law does not require a state to recognize the independence of other states. (16) Admission of a state to the United Nations requires a recommendation by the U.N. Security Council and an acceptance vote by the U.N. General Assembly. (17) Consequently, it is unlikely that a state without widespread recognition will have sufficient diplomatic favor and goodwill among member nations to garner sufficient support to be admitted into the United Nations. (18)

   2. Self-Determination

      Self-Determination is an international law principle that has evolved over time to signify the intrinsic right of groups of people to govern themselves. (19) The notion of self-determination originally emerged as a quasi-legal concept following World War I, and has consistently been applied in cases involving decolonization to form new independent states. (20) Since then, practical application of self-determination by the international community has allowed the principle to expand beyond the scope of decolonization to empower certain instances of unilateral secession for the establishment of new states. (21)

      1. Types and Scope of Self-Determination

         Two forms of self-determination are possible: internal and external. (22) Internal self-determination deals with political entitlements of a group of people, or a territorial unit, within the borders of a state, whereas external self-determination refers to the creation of a new state altogether, whether through outright secession or through other means or arrangements. (23) Although the practical applications of external self-determination have most often been employed in the context of decolonization, recently the principle of external self-determination has been successfully applied in the form of secession on several occasions, as witnessed with the independence of Bangladesh and Eritrea, and their subsequent recognition by the international community. (24) Despite broader interpretation of the self-determination principle in the modern era, claims for special privileges autonomy based purely on historical grounds are legally insufficient, and cannot be supported under self-determination. (25) Self-determination is prohibited from being used by existing states to claim auxiliary territory beyond demarcated boundaries they have already accepted. (26) One of the major obstacles to external self-determination is the control requirement, which necessitates effective control over a territory in the form of a "continuous and peaceful display of territorial sovereignty." (27)

      2. Development of Self-Determination Within the United Nations

         Self-determination has developed a robust presence within United Nations documents. (28) Article 1 of the U.N. Charter states that among the purposes of the organization is the development of friendly relations between states based on mutual respect for equal rights and self-determination. (29) The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (DGICCP) provides that "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." (30) The International Covenants on Human Rights, adopted by the U.N. General Assembly in 1966, re-iterates similar support for self-determination. (31) Furthermore, the 1970 Declaration on Principles of International Law (Friendly Relations Declaration) notes that people have the right to determine their political status and pursue economic, social, and cultural development without the external interference. (32)

   3. Territorial Integrity

      1. Purpose and Scope of Territorial Integrity

         The principle of territorial integrity protects the framework and sovereignty of independent states. (33) The Friendly Relations Declaration, which discusses equality among sovereign states, acknowledges that "[t]he territorial integrity and political independence of the state are inviolable," and under the customary international law principle of uti possidetis juris, boundaries of newly independent states are frozen at independence and may not be adjusted absent consent by the relevant parties. (34) De

         spite the far-reaching protection it provides, the principle of territorial integrity is inapplicable in disputes involving frontier demarcation, and where it is in conflict with the right of groups to self-determination. (35)

      2. Territorial Integrity as a Conditional Attribute

         The Friendly Relations Declaration asserts that states must "refrain from any forcible action which deprives peoples ... of their right to self-determination, freedom, and independence." (36) People who are subject to such a deprivation of their right to self-determination may pursue and receive support of their rights, as provided under the U.N. Charter. (37) Ideological inconsistency between self-determination and territorial integrity is partially resolved under the Friendly Relations Declaration because its support of territorial integrity is qualified as being applicable only to states "conducting themselves in compliance with equal rights and self-determination ... and thus possessed of a government representing the whole people belonging to the territory without distinction...." (38) This is indicative of the notion that a state's right to territorial integrity is not an unqualified or absolute entitlement; rather, it is a privilege of a state that is earned through its capacity to maintain peace, preserve certain inalienable rights, and adhere to international standards of governance. (39)

   4. Right to Secession in the Soviet Constitution

      In 1977, the Soviet Government passed Article 72 of the Soviet Constitution, which allowed for constituents of the Soviet Union to secede. (40) Procedural clarification for how to make use of the secession rights conferred in Article 72 came later through the 1990 "Law on Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR" (Law of Secession). (41) Article 1 of the Law of Secession provided that Union Republics had the right to secede provided that, inter alia, a referendum was conducted to determine the will of the people. (42) Autonomous oblasts and autonomous republics, which had a lower level of sovereignty in the Soviet Union than a Union Republic, had the ability to independently decide whether they wished to secede with the Union Republic in which they were located, or in the alternative to remain in the Soviet Union within a different context or form. (43)

3. CONTEXT OF THE NAGORNO-KARABAKH CONFLICT

   1. Background to the Conflict

      1. Pre-Modern Dominion Over Nagorno-Karabakh

         Armenians, a predominantly Christian people, and Azerbaijanis, predominantly Muslim, are distinct ethnic groups, each with a different language, identity...