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Article Excerpt
[Since the ceasefire ending the armed conflict between Armenia and Azerbaijan in 1994, the Organization for Security and Co-operation in Europe Minsk Group has attempted to mediate the ongoing territorial dispute between the two states concerning the region known as 'Artsakh' or 'Nagorny Karabagh'. This piece argues that the failure to achieve a compromise solution, amidst the increasing threat of a renewal of armed conflict, calls for consideration of adjudication as a feasible and desirable means of dispute resolution in this case. This article analyses the merits of the dispute in order to identify the legal tensions and how they might be resolved. First, the piece examines the historical hack ground of the dispute in order to trace the territorial title to the region from the 19th century to the present day. It then analyses the legal positions of the parties to expose how both states aim to maximise their negotiating leverage, taking little account of international law or indeed, political reality in asserting their positions. Finally, it examines the merits of the dispute and possible adjudicated solutions to the issue of territorial title.]
CONTENTS I Introduction II Historical Background of the Dispute A Ethnography of the Region: 1813-1917 B The Struggle for Transcaucasia: 1917-20 C The Soviet Era: 1920-91 D Independence, War and Ceasefire: 1991-2007 III Legal Positions of the Parties A The Position Adopted by the Parties to the Dispute B Legal Position of Armenia and the NKR C Legal Position of Azerbaijan D Current Status of Negotiations IV Possible Solutions to the Dispute A Principles of Territorial Sovereignty B Legal Consequences of the Soviet Collapse C Legal Consequences of 1918-20 D Proposed Legal Basis for Adjudication of Territorial Title 1 Unilateral Self-Determination 2 Uti Possidetis 3 Self-Determination in the Interstate Context 4 Co-sovereignty E Impact on Territorial Sovereignty in International Law V Conclusions
I INTRODUCTION
Seventeen thousand dead, one million displaced, six years of destruction--the war for the disputed territory of Artsakh, (1) from the local ethnic clashes of 18-20 September 1988 to the ceasefire of 12 May 1994, resulted in the Armenians' military victory with 11 797 square kilometres or 13.62 per cent of the former Soviet Socialist Republic of Azerbaijan's territory under de facto Armenian control. (2) What cannot be quantified is the amount of human suffering, ingrained hatred and lost opportunities. Refugees and internally displaced persons on both sides, but especially in Azerbaijan, subsist in miserable conditions. Armenia perseveres under a crippling economic blockade from Azerbaijan and Turkey. Artsakh itself remains an international 'black hole' in a state of legal limbo. After 12 years of failed peace negotiations, the main purpose of this study is to advocate the settlement of the dispute through adjudication. A legal solution would break the stalemate and resolve the dispute by peaceful means; a fortiori, judicial development of coherent principles of territorial sovereignty would promote the just resolution of similar disputes. (3)
The conventional description of the dispute as a fundamental clash between the rights of self-determination and the territorial integrity of states (4) is erroneous. (5) The conflict is not a case of unilateral secession from a parent state, but rather a territorial dispute between two states--the first Republics of Armenia and Azerbaijan, which existed from 1918-20--that 'revived' with regained independence in 1991. The common frontier between the two states, determinable solely by mutual consent, is the crux of the dispute. The competing principles for determination of that frontier are self-determination, uti possidetis juris and conquest. This article submits that, of these modes of acquisitive title, self-determination is the most likely to achieve a lasting outcome.
In this sensitive and politicised topic, it is vital to lay out the historical foundation before engaging in legal analysis. (6) Whilst this article does not seek to examine the entire history of the Artsakh region, the pertinent legal and political history of the dispute--from 1813 to the present day--is addressed in order to identify the issues arising under international law. The article then considers the legal positions of the parties concerned, namely, the Republics of Armenia and of Azerbaijan, and the self-declared, but internationally unrecognised, 'Republic of Mountainous Karabagh'. Whilst the Organization for Security and Co-operation in Europe ('OSCE') Minsk Group aims to achieve a negotiated solution to the conflict through mediation, (7) the possibility of a contentious case in the International Court Justice cannot be entirely discounted. (8) This study therefore analyses the relevant principles of international law against the current backdrop of diplomatic negotiation, but also with a view to the (admittedly unlikely) event of both states agreeing to settle the dispute by litigious means.
In Part IV, the analysis addresses the merits of the parties' legal arguments and analyses various solutions available under international law. The primary focus of the discussion is the legal merits of the Artsakh dispute per se. Secondary focus is given to the relevance of the discussion to various other 'frozen' territorial disputes.
II HISTORICAL BACKGROUND OF THE DISPUTE
This section examines the historical background of the dispute and identifies the key legal and political issues relevant to its resolution. In analysing the armed conflict between the first Republics of 1917-20, the doctrine of intertemporal law must be borne in mind. This doctrine provides that a dispute must be adjudged according to the laws in force at the relevant time, (9) in this case validating conquest as a mode of acquisitive title and precluding self-determination as a relevant consideration. (10) The legal and political effects of the Soviet period will then be addressed. Analysis of this era reveals the strategic considerations that prevent a negotiated solution. Moreover, the origins of the current erroneous focus on 'self-determination' versus 'territorial integrity' become apparent within the context of state succession to the Soviet Union in 1990. (11)
A Ethnography of the Region: 1813-1917
Attempts have been made by various commentators to contextualise the dispute historically in order to establish 'historic title' to the territory. (12) These arguments typically cite population censuses as well as cultural monuments, such as mosques or churches, as evidence of the notion of an 'indigenous people'. (13) The futility of this line of argument becomes apparent when one considers the continuous history of war and conquest throughout the Transcaucasus region, with the resulting ethnic cleansing campaigns and demographic changes. (14) At least within the context of legal arguments, propositions based upon a notional 'ancient or original title' have limited evidentiary application. (15)
The legal history of the Artsakh dispute begins with the Treaty of Gulistan of 1813 ending the First Russo-Persian War. (16) Under the treaty, Persia ceded sovereignty of the Artsakh province to Imperial Russia. (17) In 1826, sovereignty of the Eastern Armenian and Northern Azeri provinces was likewise ceded under the Treaty of Turkmenchai. (18) Under Russian jurisdiction, the province of Nakhichevan was part of the administrative region of Yerevan, whilst Artsakh and Zangezour were at first part of the Caspian district, but were then incorporated within a new Elivasetpol district under administrative reforms in 1840, enlarging the former Karabagh Khanate administrative unit within Persia. (19)
Ethnic friction first developed during this period when peoples migrated to each other's historically inhabited lands, resulting in, for example, Armenian communities in Tiflis and Baku. (20) Azeri villages were similarly found near Yerevan and clusters of ethnic minorities were scattered throughout the Transcaucasus. (21) With the end of the Imperial Government in the 1917 October Revolution, the Transcaucasian Federative Democratic Republic was declared. (22) This experiment in cooperative federalist governance was short-lived, primarily due to nationalist aspirations. On 26 May 1918, the Georgians declared independence and the Azeris and the Armenians soon followed suit. (23)
B The Struggle for Transcaucasia: 1917-20
The interregnum until the Soviet Union's conquest saw a series of inter-ethnic territorial wars. The three disputed territories between the new states of Armenia and Azerbaijan were Nakhichevan, Zangezour and Artsakh. (24) Demographically, the Azeris enjoyed a 60 per cent majority in Nakhichevan; (25) the population of Zangezour was evenly split; (26) and the Armenians enjoyed a 94 per cent majority in Artsakh. (27) On 22 July 1918, the Armenian population of Artsakh convened the First Armenian National Assembly of Karabagh in the provincial capital of Shushi. (28) Whilst Armenia, along with the Nagorny Karabagh Republic ('NKR'), has attempted to utilise these ethnic divisions as evidence of an intention for statehood, (29) contemporary historical documents indicate the intention of the Artsakh Armenians to unify with Armenia. (30)
Under Armenia's decentralised system of governance, regional councils functioned with policing, military and jurisdictional autonomy but were ultimately subject to the central government. This is evident from the Armenian parliamentary decision on the principles of government in Zangezour and Karabagh declaring the regions of Zangezour and Karabagh to be integral parts of Armenia, the Goris and Shushi National Councils to be regional governments, and their inclusion in the national budget. (31) This undermines the proposition that Armenians of the time intended to create several independent states. On the contrary, major political divisions on this point existed only in Shushi, where the merchant class favoured a policy of appeasement with Baku, arguing that Artsakh's geopolitical situation made it a natural trader with Baku. (32) The rest of the Artsakh population favoured unification with the Republic. (33)
In December 1919, local Armenian irregulars defeated their Azeri counterparts in Zangezour and established Armenian supremacy. (34) They then invaded Artsakh but withdrew upon the demand of the British occupiers of Baku on the promise that the territorial issue would be decided at the Paris Peace Conference. (35) The British set up a temporary jurisdiction, appointing the ethnic Azeri Dr Khostrov Bey Sultanov as Governor-General, with an advisory council of three Armenians and three Azeris. (36) Armenia protested this action as contrary to its territorial rights. The Fourth Armenian National Assembly of Karabagh likewise protested Azerbaijan's assertion of sovereignty. (37) Armenia then passed two laws, the first declaring 'a "Free and United Armenia" including Karabagh and Nakhichevan' (38) and the second specifically asserting its sovereignty over Artsakh. (39)
In April 1919, Armenia occupied Nakhichevan and declared martial law as part of the Yerevan administrative province. (40) A governor was appointed and police and courts were installed. In August, Azeri forces expelled the Armenian troops and a governor was appointed by Baku. (41) Armenia then shifted its attention to Zangezour, which the Azeris unsuccessfully invaded in November. (42) The Artsakh Armenians, upon the British withdrawal from Baku in August, agreed in their Fourth National Assembly to a ceasefire with the Azeri Government continuing the temporary jurisdiction of Sultanov. (43) Articles 15 and 16 required that garrisons be of peacetime strength and any movement of Azeri troops be authorised by two-thirds of the Council. (44)
Sultanov, acting without such approval, occupied several Armenian villages and instituted an economic blockade to coerce the Armenian population into recognition of Azeri sovereignty. (45) The Eighth Armenian Assembly of Karabagh convened in the village of Shosh and, on 28 February 1920, categorically rejected the Azeri demands. (46) Sultanov then convened a group of Armenian merchants in Shushi and, under threat of 'dire consequences', the group expressed its willingness to consider conditional submission to Azerbaijan. (47) Using this as a pretext, Sultanov then moved more troops into the province in anticipation of an Armenian uprising, which commenced on 21 March 1920. (48)
On 22 April 1920, the Ninth Armenian Assembly of Karabagh declared the provisional agreement null and the union of Artsakh and Armenia. (49) Armenia simultaneously occupied Nakhichevan, Zangezour and Artsakh for the first time. (50) Azerbaijan was succumbing to invasion by the Soviet Union, with the result that the Soviet Socialist Republic of Azerbaijan ('SSR of Azerbaijan') was proclaimed on 28 April 1920 in Baku. (51) Armenia's occupation lasted until 10 August 1920, when an agreement was signed recognising de facto Soviet occupation of the three provinces, subject to final determination of their status in later negotiations. (52)
This history of war between the first Republics may give rise to claims of sovereignty acquired by conquest. For Azerbaijan, the provisional agreement between itself and the Armenian National Councils from January 1919 until April 1920, coupled with the appointment of a Karabagh Azeri as Governor-General, could be characterised as an assertion of sovereignty over the region. On the other hand, Armenia could argue that its proclamations of annexation, coupled with the direct subjugation to Yerevan from April until July 1920, constitute conquest.
C The Soviet Era: 1920-91
The Turkish War of Independence, instigated by Mustapha Kemal, successfully prevented the Treaty of Sevres, (53) signed on 10 August 1920, from being implemented. Turkey invaded Armenia and, in November 1920, occupied the Kars and Aleksandropol provinces so that the Armenian government, hemmed...
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