BY ALIK OURFALIAN

We often talk about the Artsakh issue in terms of self-determination, that the people of Artsakh exercised their right of self-determination and established an independent republic. Self-determination. Territorial integrity. These are phrases we hear often, but what do they really mean and how to they apply to the case of Artsakh? Consider the following:

What is a state under international law?
Under international law, nations are referred to as “states.” Where a state is a member of the United Nations, by definition of the U.N. Charter, it is a state. However, where a state is not a member of the U.N., as is the case of Artsakh, the issue of statehood arises. The criteria for statehood are set out in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States. For an entity to be considered a state, there must be (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. These criteria are premised on the principle of effectiveness, which recognizes that in order for an entity to be able to fulfill international obligations and benefit from international rights, it must have a government which controls a defined territory and its inhabitants, effectively and independently from any other state. The Montevideo Convention has achieved the status of customary international law, which applies to all states.In order to satisfy the criteria set forth by the Montevideo Convention, first, a state must have a permanent and stable population within its geographical area, though there is no minimum number requirement. For example, when the Republic of Nauru in the Central Pacific became independent in 1968, its population was 6,500 people. In 1989, before Artsakh declared independence, it had a population of about 189,000, of which 145,593 were Armenians and 42,871 were Azeris. However, as the war intensified over the next few years, most Azeris fled to Azerbaijan, decreasing Artsakh’s population. In recent years, the population has increased to 150,932 based on the 2015 census. This data shows that Artsakh has had a permanent and stable population, satisfying the first criteria of the Montevideo Convention both at the time it declared independence and today.

Second, the territory of the state must be generally defined, but its borders need not be fully defined; that is, the borders may be disputed. It is enough that a state’s territory has a “sufficient consistency, even though its boundaries have not yet been accurately delimited.” Israel, as well as a number of other states created after World War II, were recognized and admitted into the U.N. despite their boundaries not being finally delimited. Further, there is no minimum requirement of size of a territory, as illustrated by Monaco’s 1.5 square kilometer area. At the time Artsakh declared its independence, it did so in the territory of the Nagorno-Karabakh Autonomous Oblast, which was an autonomous division within the Azerbaijani Soviet Republic, and the Shahumian region, which fell directly under the control of the Azerbaijani Soviet Republic. Artsakh’s borders were highly disputed, leading to war, during which Artsakh saw both gains and losses in territory. Border disputes, however, do not automatically mean that the territory is not defined, so long as it is generally defined. Today, Artsakh’s territory spans 4,400 square kilometers, or 1,700 square miles, though its borders remain disputed. Parts of Artsakh’s territory, specifically the Shahumian and Margushevan regions in the northeast and part of the Martuni region on the east, are occupied by Azerbaijan. But Artsakh has had a generally defined territory from the time of its declaration of independence, thus, the second criteria of the Montevideo Convention is also satisfied.

Third, there must be a government that has at least some degree of control over the state and its inhabitants, but the government need not follow a particular form or structure. About twenty days after the referendum calling for Artsakh’s independence in 1991, the people of Artsakh elected a legislature, which maintained governance of the region. Following the ceasefire agreement in 1994, the first president was elected. Today, Artsakh has a functional government and constitution, with a president and prime minister, as well as a legislature, ministry of foreign affairs, national security services, and police force. Regular presidential and legislative elections take place in accordance with the constitution. The foregoing facts are representative of the effective system of government that has been in place in Artsakh since its declaration of independence, which satisfies the third criteria of the Montevideo Convention.

Finally, the entity must have the capacity to enter into relations with other states. This is the equivalent of independence, wherein the entity has “the right to exercise therein, to the exclusion of any other state, the function of the state.” This means that the government’s control of the territory is not subject to or dependent of any other state. Perhaps this is the most unsettled criteria in the case of Artsakh. The existence of an army, however, indicates that the entity has the capacity to defend its own territory; it is not a mere puppet state of another existing state.  Following its declaration of independence in January 1992, Artsakh volunteer detachments undertook defense efforts against Azerbaijan. By May 1992, the Artsakh Defense Army was formed. The Artsakh constitution provides for armed forces to ensure its security, defense, territorial integrity, and inviolability of its borders. Though during the war years, Armenia provided both military and humanitarian aid to Artsakh and was made party to the ceasefire agreements, the facts suggest that Armenia’s aid was just that, aid, not an exercise of power over Artsakh. Military personnel arriving in Artsakh from Armenia and elsewhere were volunteers who joined the Artsakh Defense Army, thus no foreign army intervention took place. Today, though it has not been recognized by any other states, Artsakh has permanent representatives and offices in the United States, Russia, France, Australia, Germany, the Middle East, and Armenia. A representative of Artsakh was also a signatory to the ceasefire agreements of 1994 and 2016, which shows that Artsakh had the capacity to make an international agreement. Therefore, Artsakh’s independence and capacity to enter into relations with other states since its declaration of independence seems to satisfy the fourth criteria under the Montevideo Convention.

If an entity has satisfied all four objective criteria of statehood, it is said to be a de facto state, meaning it has achieved statehood in fact, in accordance with the Montevideo Convention. Because Artsakh satisfied all four criteria of statehood at the time it declared its independence, it was, and remains today, a de facto state. Even then, the state may not receive recognition from other states in the international community. According to Article 3 of the Montevideo Convention, however, the “political existence of the state is independent of recognition by the other states,” and the state has the right to organize internally as it sees fit and defend itself and its independence even before any other states have recognized it. Article 6 of the Convention says that the recognition by other states merely signifies that the recognizing state accepts the international personality of the state. This view endorsed by the Montevideo Convention is the declaratory theory of state recognition, and it is also favored by many academics, treaties, and municipal and international courts. The opposing view is the constitutive theory, wherein recognition by other states creates a state and gives it international personality.

It is important to note that international law does not have an overarching policing system; rather, the states enforce international law among themselves. Therefore, where a de facto state lacks recognition by the world community, its rights and duties under international law cannot be enforced. Because it has not been recognized by any states, it is difficult, if not impossible, for Artsakh to enforce its rights and duties under international law. This is why recognition is important.

Recognition by other states depends greatly on the other states’ interests. Other states do not have a duty to recognize the new state once it reaches de facto statehood, so recognition is merely a political issue to be considered by the recognizing state. Where a state does not approve of a new state’s formation or where such approval would be adverse to the state’s interests, it can withhold recognition. Today, state practice seems to be a combination of the two theories: new states cannot take part in the international community without recognition by other states, but at the same time, de facto states that lack recognition cannot be said not to exist.

In some situations, when states are considering whether to recognize the existence of other states, the legality of a putative state’s origin can be said to be an additional criterion. In situations where the entity achieves independence, the legality of the state’s origin may be examined by the international community. If an entity was created in violation of international norms, such as the prohibition against aggression, the prohibition against the acquisition of territory by force, or the prohibition against racial discrimination and apartheid, other states may refuse to recognize the entity as a state because its origin is said to have been illegal. However, this examination is done in light of the principle of self-determination, that is, where the use of force is in pursuit of a peoples’ right to self-determination, the origin of the state is not considered illegal. In the case of Bangladesh in 1971, for example, though the state was created by the use of force, it was generally accepted that the people of Bangladesh were exercising their right of self-determination.

The right of self-determination
The right of self-determination is recognized under international law as the right of a peoples to determine its own political destiny. The right is recognized multiple times in the U.N. Charter. It is also a fundamental human right afforded by the two principle international human rights treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The UN Human Rights Committee recognizes that the right of self-determination is of “particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.”There are two types of self-determination: internal and external. Internal self-determination refers to a people’s right within a state to participate in the conduct of common affairs, as well as the right to be represented by a government without discrimination “as to race, creed, or color.” External self-determination refers to a people’s right to secede from the state and either create a new state or join another existing state. If necessary, a people exercising its right of self-determination is entitled to use force.

The position of Artsakh is that its people declared independence in accordance with their right of self-determination. Azerbaijan’s position is that Artsakh’s declaration of independence violates its territorial integrity, and thus, the de facto Republic of Artsakh is occupying Azerbaijan’s territory.

The Armenians of Artsakh were an ethnic people living on the territory for thousands of years. Though under foreign domination for much of the past millennium, Artsakh was often afforded autonomous status. Under the Soviet Union, the region was given autonomous status, as well. As an autonomous region, the people within the Oblast were arguably exercising internal self-determination. In reality, however, they had little say in their political destiny. Armenians’ rights in the Oblast were limited as they faced discrimination by Azerbaijani and Soviet authorities. Conditions substantially worsened when Armenians began to publicly call for secession. Pogroms in the Azerbaijani cities of Baku and Sumgait left hundreds of Armenian civilians dead and hundreds of thousands displaced from their homes. Operation Ring also displaces tens of thousands of Armenians from their home, effectively leaving no Armenians in the Shahumian region. When Azerbaijan initiated an economic blockade of Artsakh, the people of Artsakh had no access to food, oil, and other necessities, since the Oblast was completely surrounded by Azerbaijan.

External self-determination is possible where a people lives under foreign domination, as was the case here of the Armenian population of Artsakh living under Azerbaijani domination and subject to human rights violations. However, the exercise of external self-determination is limited to the extent it undermines the territorial integrity of an existing state.

The principle of territorial integrity
The principle of territorial integrity refers to the inviolability of the borders of sovereign states. The principle is recognized by the U.N. Charter, and considered a norm of international law by scholars and jurists. If a people exercises its right of self-determination by secession, where the parent state does not agree to the separation, the national unity and territorial integrity of a state is challenged and usually entails the use of force by the people concerned, which in turn poses a threat to international peace and security.

However, Azerbaijan’s claim to territorial integrity in the case of Artsakh is flawed. At the time Azerbaijan seceded from the Soviet Union, Soviet law on secession from the USSR provided that in autonomous oblasts, the people retain the right to independently decide the question of remaining within the USSR or within the seceding republic, and also to raise the question of their own state-legal status by referendum. This means that if a Soviet Republic decided to secede from the USSR and become independent, an autonomous oblast within that Republic could choose its own destiny. This is precisely what the people of Artsakh did. When Azerbaijan declared independence from the USSR on August 30, 1991, the Nagorno-Karabakh Autonomous Oblast had the option to (a) stay in the USSR; (b) remain in the seceding Republic of Azerbaijan; or (c) raise a question of its own state-legal status, such as independence. Two days after Azerbaijan declared its secession, a joint session of the Nagorno-Karabakh Autonomous Oblast and Shahoumian Regional Council proclaimed the Nagorno-Karabakh Republic within the borders of the Nagorno-Karabakh Autonomous Oblast and neighboring Shahumian region, reserving the right of the people to decide by referendum the issue of independence. This move – insofar as the Autonomous Oblast is concerned – was well within the bounds of the USSR secession law, which gave the people of the Autonomous Oblast the right to decide its own state-legal status by referendum, independent of Azerbaijan’s decision to secede. The referendum was held in December 1991, at which time an overwhelming majority of the people (99.98 percent) voted for independence. Accordingly, Artsakh’s declaration of independence was valid and lawful. Azerbaijan had no right to the Nagorno-Karabakh Autonomous Oblast because it lawfully decided to determine its own fate through a referendum. The Nagorno-Karabakh Autonomous Oblast was never a part of an Azerbaijani state, and Azerbaijan has no territorial rights to its territory.

An issue here arises in that the Shahumian Regional Council joined the NK Autonomous Oblast in declaring independence collectively as the Nagorno-Karabakh Republic. The USSR secession law, however, extends only to the Autonomous Oblast, not to the Shahumian region, which was directly located within the Azerbaijani Soviet Republic. Accordingly, the Shahumian people’s right to self-determination must be considered separately. Armenians of Shahumian may have a valid claim of external self-determination because they lived under foreign domination during much of the duration of the Soviet Union. Additionally, internal self-determination was lacking, as Armenians in Shahumian had no autonomy and were subject to discrimination and human rights violations, as evidenced by Operation Ring and the displacement of 17,000 Shahumian Armenians. The issue of Shahumian requires a complex analysis.

It is also noteworthy that when Azerbaijan declared its independence from the Soviet Union, it called for restoration of independence of the Republic of Azerbaijan of 1918-1920. At the time Azerbaijan was Sovietized in 1920, its territory did not include Artsakh, as Armenia and Azerbaijan both laid claims to the region between 1918 and 1920, and Armenia retained control of it when Azerbaijan was Sovietized.

Accordingly, Azerbaijan has no legitimate territorial right to Artsakh and its argument of territorial integrity is without merit.

Artsakh’s independence is legal
As discussed, Artsakh is a de facto state. Despite the application of international jurisprudence favoring Artsakh’s independence, states are reluctant to recognize it. This is a clear indication of the shortcomings of the international legal regime. State recognition, and by extension, international personality, is solely dependent on the self-interest of other states, which restricts the administration of justice. In this case, because world powers care more about their ties with oil-rich Azerbaijan than attaining justice and securing human rights for the people of Artsakh, they refuse to recognize its independence.It is up to each of us to advocate for the just recognition of the Republic of Artsakh and the right of its people to live peacefully in their homeland.

Notes

1 Human Rights Watch, Seven Years of Conflict in Nagorno-Karabakh (Dec. 1994) xiii.
2 Deutsche Continental Gas-Gesselschaft v. Polish State, 2 RIAA (1928) 829, 838.
3 Deutsche Continental Gas-Gesselschaft v. Polish State, 2 RIAA (1928), 176.
4 Government of Nagorno-Karabakh Republic, State Administrative Bodies Adjunct to the NKR Government.
5 Island of Palmas Arbitration (The Netherlands v. U.S.) (1928) 2 RIAA 829.
6 Nagorno-Karabakh Republic Ministry of Foreign Affairs, Constitution of the Nagorno-Karabakh Republic, http://nkr.am/en/constitution/9/
7Ministry of Foreign Affairs of NKR, Permanent Representations, http://nkr.am/en/permanent-representations/104/.
8 UN Human Rights Committee, CCPR General Comment No. 12: Article 1 (Right to Self-determination), The Right to Self-determination of Peoples (13 March 1984) para. 1.
9 U.N. General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV) (24 October 1970), Principal 5.
10 UN Charter Article 2(4): “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 . . .”
11 See, e.g., Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 106 (June 27) (Judgment); Dietrich Murswiek, The Issue of a Right of Secession–Reconsidered, in MODERN LAW OF SELF-DETERMINATION 21, 35-36 (Christian Tomuschat ed., 1993); Eisuke Suzuki, Self-Determination and World Public Order: Community Response to Territorial Separation, 16 VA. J. INT’L L. 779, 782-83 (1976).
12 Administrative Department of the President of the Republic of Azerbaijan, Declaration of the Supreme Soviet of the Republic of Azerbaijan about a restoration of independence of the Republic of Azerbaijan (30 August, 1991).

Alik Ourfalian is an attorney in California currently pursuing a Masters degree international human rights law at American University College of Law in Washington.