Nagorno-Karabakh

consequences of a frozen conflict

Nagorno-Karabakh

The Armenian-Azerbaijani conflict over the Nagorno-Karabakh region was considered frozen for many years. On 10 November 2020, after several weeks of fighting, the two states agreed on conditions for a peaceful settlement of the conflict which has been going on for more than 30 years. 

The agreement signed by the heads of state or government of Armenia, Azerbaijan and Russia contains the following provisions in addition to the complete ceasefire: On the one hand, the return of the remaining three of the seven Armenian-occupied districts surrounding Nagorno-Karabakh (Kalbajar, Aghdam and Lachin) to Azerbaijan by December, according to a precise timetable. On the other hand, the Armenian forces will have to withdraw from Nagorno-Karabakh itself. Instead, Russian peacekeepers will be deployed there along the line of contact – as well as along the Lachin corridor, which is the only land connection between Nagorno-Karabakh and Armenia – for a period of 5 years. In this context, a peace-keeping centre will also be set up to ensure compliance with the agreements. 

Of fundamental importance from a human rights perspective is the provision for the return of refugees and internally displaced persons (IDPs) to their homes under UNHCR supervision. From an economic point of view, it is important to restore all economic and transport links in the region, including the transport link between Azerbaijan and the Nakhchivan exclave. It is expected that all countries in the region will benefit from the opening of the links. Although the short agreement covers several areas, there are of course still a number of issues that need to be addressed. Only further agreements, if not a final peace treaty, will be able to answer these questions. 

OSCE peace process and reasons for its failure 

Negotiations for a peaceful solution to the conflict have been under way for over 25 years in the framework of the OSCE mediation process (“Minsk Group”). There are certainly many reasons for the failure of the peace process. Azerbaijan can hardly be accused of a non-constructive position. For already at the 1996 OSCE Summit Meeting, a declaration was included in the Lisbon Final Document which emphasised Azerbaijan’s territorial integrity and, within it, the greatest possible degree of self-government for Nagorno-Karabakh as guiding principles of a conflict settlement. This was endorsed by all OSCE States except Armenia. 

In 1997, the parties were particularly close to a solution: the proposed solution put forward by the co-chair states of the OSCE Minsk Group (USA, Russia, France) was accepted by both sides. However, internal political pressure forced the then President of Armenia, L.Ter-Petrosjan, to reject the proposal in the end. This led to a dramatic failure of the peace plan. Subsequently, Armenia showed little willingness to compromise on the “Basic Principles” or “Madrid Principles”, which were first presented in 2007. These were unsatisfactory for the Armenian side because they contained guide- lines such as “restitution of the territories around Nagorno-Karabakh under Azerbaijani control” and “the right of all displaced persons to return to their original places of residence”, while the legal status of Nagorno-Karabakh was to be determined at a later date. 

In the context of the fundamental and human rights of displaced persons, especially IDPs, reference should be made to the landmark judgment of the European Court of Human Rights (ECtHR) in the case of Chiragov and others v. Armenia (13216/05), in which the LGP as legal representative of the Azerbaijani Government was also actively involved. The ECtHR noted inter alia that mere participation in the OSCE peace process does not release states from the obligation to take alternative measures to respect the rights laid down in the European Convention on Human Rights (ECtHR), in particular the right to property. Obviously, Azerbaijani displaced persons are particularly affected: after the war in the 1990s, they were forced to flee not only from Nagorno-Karabakh, but also from the seven adjacent districts, which were almost exclusively inhabited by Azerbaijanis (in total, more than 700,000 people). This ruling is a milestone in international humanitarian law: for the first time, the extended time limits of the ECtHR case law on disappeared persons (so-called “Varnava criteria”) were also applied to IDPs, thus enabling access to justice for hundreds of thousands of people. 

However, the Armenian side did not want to address the issue of displaced persons before a final agreement on the status of Nagorno-Karabakh. In recent months, Armenia’s attitude has been destructive in general, from questioning the format of the peace negotiations, to the setting of numerous conditions, such as the inclusion of the “Republic of Nagorno-Karabakh” as a negotiating party, to statements such as “Nagorno-Karabakh is part of Armenia” and “new war, new territories”. Many experts therefore believe that Armenia’s continuing irreconcilable position has been one of the main obstacles to a peaceful solution of the conflict. 

Foundations of international law 

The definition of the borders of the successor states of the Soviet Union (as well as Yugoslavia) was based on the international law principle “uti-possidetis iuris”: the republican borders of the federations became international borders. Nagorno-Karabakh as an autonomous region within the Azerbaijani SSR was thus recognised as part of the new independent state of Azerbaijan. The same was true for the recognition of Abkhazia and South Ossetia (Georgia), Transnistria (Moldova) or Crimea (Ukraine). 

No state in the world, not even Armenia, has recognised the independence of Nagorno-Karabakh. Numerous international documents reaffirm the territorial integrity of Azerbaijan, including UN Security Council 

Resolutions nos. 822 (1993), 853 (1993), 874 (1993) and 884 (1993), UN General Assembly Resolutions nos. 60/285 and 62/243, Resolutions of the Parliamentary Assembly of the Council of Europe nos. 1119, 1416, 2085 as well as the European Parliament Resolutions 2009/2216 and 2011/2315. The four UN Security Resolutions already in 1993 called for the immediate and unconditional withdrawal of Armenian troops from the occupied territories. The above-mentioned ECtHR judgement in the Chiragov case also made it clear that the “Republic of Nagorno-Karabakh” cannot be held responsible for violations of the ECtHR on these territories because no such state exists. Rather, Armenia exercises “effective control” over Nagorno-Karabakh and the adjacent territories, and violations of the ECtHR in these territories therefore fall under the jurisdiction of Armenia. 

In this context, the agreement of 10 November 2020 restores the territorial integrity and sovereignty of Azerbaijan. 

Author:

Mag. ORKHAN ISMAYILOV, Legal Consultant at LANSKY, GANZGER + partner

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