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Uncomfortable Conversations: Moscow and the Rival Legal Claims over Nagorno-Karabakh

Paul Fisher, prompted by the latest bout of fighting between Armenia and Azerbaijan over Nagorno Karabakh, takes another look at Moscow’s difficult relationship with de facto states

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During the last week of September, there was a flareup in the ongoing military confrontation between Armenia and Azerbaijan (often erroneously referred to as a ‘frozen conflict’).  At issue, as before, is the fate of Nagorno-Karabakh and the regions that surround it. Most commentators fear this latest bout of fighting could lead to war, whether prolonged, as in the 1990s or more truncated but no less tragic, as in April 2016.

As ever, attention turns to Russia. Its real influence on the dispute should not be exaggerated, but it nonetheless plays a historical role in mediating the conflict. This article explains why analysis of the belligerents’ legal claims to the disputed territories presents problems for Russia, and why it will be keen to avoid such discussions in favour of a pragmatic route to a ceasefire.

Why does it Matter?

In the twilight years of the USSR the majority Armenian region of Nagorno-Karabakh (then the Nagorno-Karabakh Autonomous Republic (the “NKAO”)) decided to secede from the Azerbaijan Soviet Socialist Republic (‘AzSSR’). The decision was itself precipitated by acts of violence against the Armenian community in Sumgait and then further encouraged by the so-called Azeri-led ‘Operation Ring’ that sought to root-out Armenian separatists from within Karabakh. The conflict that emerged was left unresolved when a ceasefire was agreed in 1994 and effectively left an Armenian de facto state operating within the territory of the newly independent Azerbaijan.

Both Azerbaijan and the de facto state of the Nagorno-Karabakh Republic (officially known to its citizens as the Republic of Artsakh) (the “NKR”) assert legal claims to the territories in dispute, with the Armenian parent state inevitably advocating the NKR’s position. But what significance can this possibly have in circumstances where ‘might makes right’?

Legal norms are important within this context not because they help to prospectively shape behaviour per se but because the public relations debate regarding ‘entitlement’ includes resort to principles of international law. This article is not concerned with the ethnographical aspects of the Karabakh debate, upon which many distinguished experts have spoken, but with the legal debate that has long-served as an alternative battleground for Armenians and Azeris.

Why is this significant? Firstly, the parties to this tripartite dispute seek to use legal norms to justify their political and military decision-making. Secondly, the legal debate can present problems for mediators such as the Russian Federation for whom the terms ‘de facto state’ and ‘secession’ have so many negative connotations.

The Legal Claims

Azerbaijan’s claim to the territory of Karabakh is clear as a matter of international law. It appeals to the principle of uti posseditis (‘as you possess’), which broadly in the case of a newly-independent entity asserts that subject to valid treaty arrangements to the contrary, the borders of a state at the point of legally-recognised independence from its former parent state remain intact and inviolable. That holds true for Azerbaijan to the extent that the borders that it now claims for itself were indeed the established borders of the AzSSR when it obtained independence from the USSR. UN General Assembly Resolution 62/243 (14 March 2008) affirmed this orthodox position by demanding ‘the immediate, complete and unconditional withdrawal of all Armenian forces from all the occupied territories of the Republic of Azerbaijan.’ These statements were preceded by several UN Security Council Resolutions and a Council of Europe Parliamentary Assembly (“PACE”) Resolution to the same effect.

Advocates for the legal claim of the NKR to this territory advance a number of counter-arguments.

Firstly, the NKR contends that it was granted a right to secede from the USSR as an autonomous region in the same way that any union republic had such a right by virtue of the Law on Secession 1990 (the “1990 Law”). It asserts that it exercised that right prior to the dissolution of the USSR in 1991. This argument has a number of flaws. The 1990 Law was the first time the USSR gave legal substance to the surprising constitutional statement that each Union Republic had the right freely to secede from the Union (Article 72 of the 1977 ‘Brezhnev’ Constitution). The object of the 1990 Law was plainly to manage and regulate rather than to facilitate the claims to secession then being made by the Baltic republics. It created more obstacles to secession than it demolished and was ultimately ignored even by the Supreme Soviet of the USSR. It cannot be considered a sound basis for recognising legitimate historical claims to independence within the confines of the Union. In addition, Article 78 of the USSR Constitution expressly stipulated that ‘the territory of a Union Republic may not be altered without its consent’ – consent that, unsurprisingly, was never granted to the NKAO/NKR by the AzSSR.

The second case for the NKR is secession predicated upon the abuse of human rights. In this respect, international precedent has advanced a great deal since the war of the 1990s, most significantly with the recognition of Kosovo as an independent state in 2008 following the wars and ethnic genocide in the former Yugoslavia. Sometimes referred to as ‘remedial secession’, this is a highly contested area of international law and will – as in the case of Kosovo – usually result from ‘exceptional circumstances’. These may include substantiated claims of systemic abuse and genocide by the parent state. Indeed, Armenian PM Nikol Pashinyan says that the Karabakh conflict is ‘not about territory’ at all but ‘about people, about humans, about security’. One hopes that there would never be grounds for ‘remedial secession’ in the future. There are legitimate concerns, however, about what a re-conquered Karabakh would experience under restored Azeri control.   This is a very raw theme in the South Caucasus. Both Armenia and Azerbaijan allege acts of genocide prior to and during the war of the 1990s. At present, however, the contours of such an argument are far less definite than Azerbaijan’s prima facie claim to its territorial integrity.

Moscow’s Dilemma

Why should these legal debates be of concern to Moscow as it once again reluctantly enters the debate about the causes of the conflict?  The point is not that these arguments are paramount for the resolution of the conflict. Rather they represent inconvenient background noise for various parties sitting around the negotiating table.

The predicament for Russia is that the appeals to legality that plague the Armenian and Azeri dispute resurrect continuing debates about Russia’s own involvement with its ‘near abroad’.

Uti possesidits claims are troublesome for Moscow in 2020: the annexation of Crimea in March 2014 and Russia’s support for the breakaway Ukrainian regions of Donetsk and Luhansk directly contradicts any claims to preserve 1991 territorial borders. Georgia also often reminds Russia that its support (political and military) for the de facto states of Abkhazia and South Ossetia represents a form of occupation.

On the other hand, Moscow does not want to be seen to recognise legal rights to secession. On 28 September 2020, it was proposed in the Armenian National Assembly that Armenia formally recognise NKR’s independence, which PM Nikol Pashinyan confirmed was ‘on the agenda’. This would certainly concern Putin’s administration. For Russia, the Chechen Republic of Ichkeria – a de facto state that existed within the territory of the Russian Federation between 1996 and 1999 – and its bloody re-conquest lives long in the memory. Yeltsin’s assertion in December 1994 that he was restoring constitutional order in the breakaway Chechen Republic by sending in troops would be seen by President Aliyev as comparable with Azerbaijan’s own experience. Chechnya still remembers the darkest days of 1999 to 2009 when its capital Grozny was reduced to rubble by superior Russian airpower and citizens went missing at infamous military checkpoints. When placed in that light, it is not easy for Moscow to persuasively warn Baku against using force to re-integrate a quasi-state on its territory.

It is worth noting that Russia and Armenia are both members of the security bloc known as the Collective Security Treaty Organisation (the “CSTO”). Its founding treaty of 1992 includes an important commitment within Article 4 for signatory states to provide ‘all necessary assistance’ to any other signatory who is on the receiving end of an act of aggression (often compared to Article 5 of the North Atlantic Treaty Organisation’s founding treaty of 1949). Although acts of aggression against a signatory to the CSTO will be considered an act of aggression against all, the ‘necessary assistance’ provided at the request of the threatened state may, but need not, include military action. Even a direct attack on Armenia, therefore, does not automatically mean Russian boots on the ground or MiGs in the sky.

Armenian officials likely operate under no illusion that Article 4 will be triggered and do not sincerely believe that Russia will take any serious official military action, despite fast-moving developments indicating that Turkey may be showing more than moral support for President Aliyev’s regime in Baku. On the contrary, in an interview with the BBC’s Newshour on 29 September, Nikol Pashinyan stated that due to Russia’s role with the mediating OSCE Minsk Group it was ‘her duty to be neutral’ and to ‘make more efforts’ to support ‘stability and peace’.

What does it mean for the future?

For the time being, Russia will undoubtedly seek to encourage the most immediate priority — namely, a return to ceasefire, which it is increasingly clear was breached by Baku. If the conflict surrounding the disputed territories is to be resolved peacefully, however, it will require the compromise of the strict legal claims of the three parties involved –Azerbaijan, NKR and (indirectly) Armenia.

So although Russia’s influence in the region should not be exaggerated, it has an undeniably key role to play and it will find any detailed debate about legal entitlement uncomfortable.

Arguments about legality hold a mirror up to the Putin administration’s split personality when it comes to de facto states. However, the politics of the South Caucasus could force its hand. Over the coming weeks, actions taken in national assemblies and on the battlefield could shape Moscow’s future response to those very same arguments as it is forced to consider its most sustainable position on the future of Karabakh.

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