International Law vs. Realpolitik: The Solution of the Nagorno-Karabakh Conflict

The Nagorno-Karabakh war in 2020 ended with thousands of lost lives and emptying half of the region from its native Armenian population. Contrary to what some might think, the November 9 ceasefire agreement is not a final peace agreement and the conflict is far from over. Although the agreement implements a couple of the terms in the peace proposal by the Organization for Security and Co-operation in Europe (OSCE) Minsk Group, the fundamental question of the region’s final status and the future of its native Armenian population remain unanswered and the threat of a total ethnic cleansing highly real.

We can omit the historical claims going back to antiquity and be content with the following: the present-day conflict is a modern creation in 1921. A decision by the Communist Politburo in the Caucasus on July 4, 1921, to incorporate Nagorno-Karabakh (based on its overwhelmingly 94% Armenian population) into the Armenian SSR was inexplicably reversed the very next day to incorporate the enclave into Azerbaijani SSR. There is a unanimous consensus among scholars that this was part of Josef Stalin’s policy of “divide and rule,” creating similar “fifth column” pockets in different Soviet republics as means to keep the local leadership on a tight leash. These autonomous enclaves (Nagorno-Karabakh, South Ossetia, Abkhazia, et al.) became ticking bombs which would erupt when Moscow’s authoritarian rule diminished in the last years of the Soviet Union.

Now fast forward to February 20, 1988: the People’s Soviet (parliament) of Karabakh, in accordance with international law and Soviet Union’s Constitution, voted 110-17 in favor of transferring the region from the Azerbaijani SSR to the Armenian SSR. Baku replied with military force to subjugate the popular movement. As the Karabakh population took to arms to defend themselves and Armenia stepped in to guarantee the safety of its compatriots, the spiral of violence led to the devastating war of 1990-94, leaving most of Karabakh, along with an equal size of adjacent Azerbaijani territories as a security buffer, under Armenian control. It is this “occupation” as a violation of international law that needs contextualization.

The fourth item in the Helsinki Final Act (1975), the Charter of the OSCE, is about respecting the territorial integrity of states. It mentions, inter alia, that states must “refrain from making each other’s territory the object of military occupation […] in contravention of international law.” The latter part is indeed quite relevant, acting as an amendment reserving the right for, e.g., humanitarian intervention. Saved for the referral to the amendment regarding the possible need for humanitarian intervention, it would be justified to claim that Azerbaijan’s territorial integrity has been violated and needs to be restored.

Now let’s turn to the second main principle in this conflict, namely the principle of peoples’ right to self-determination, the eighth item in the Helsinki Final Act. The principle establishes, among others, that “all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference.” There is little ambiguity in this wording, empowering the people of Nagorno-Karabakh to freely determine their external political status, as they did on February 20, 1988.

It should be pointed out that the ten basic principles in the Helsinki Final Act have no order of precedence between themselves and are equal before international law. That fact notwithstanding, a state’s political and military power often, if not always, means that the territorial integrity of a state overrides peoples’ right to self-determination. In other words, it is sheer political pragmatism and power, not international law, which decides that outcome.

Until the parliamentary decision of February 20, 1988, there was no question of the military uprising, invasion, or occupation to annex the territory of Azerbaijan. It was a peaceful democratic expression of will in full accordance with international law. The mere fact that no state, including Armenia, has recognized the self-proclaimed independent Republic of Artsakh (the Armenian name of Nagorno-Karabakh) is a token of respect for international law and the ongoing mediation by OSCE Minsk Group. The subsequent occupation was a direct result of Azerbaijan’s use of force to subjugate Karabakh’s people. The same language of force was implemented in 2020 when Azerbaijan, supported by Turkey, and thousands of Syrian mercenaries, waged a war to retake the area.

The war was also a result of the international community’s and the OSCE Minsk Group’s failure to resolve the conflict peacefully. The so-called Madrid Principles from 2007, based on the Helsinki Final Act, could have delivered a peaceful solution a long time ago. The agreement invokes the restoration of Azerbaijan’s territorial integrity (items 1 and 2), while guarantying the right of Karabakh population’s right to self-determination through “a legally binding expression of will,” i.e. a referendum (item 4).

But, the implementation of the Madrid Principles failed since neither of parties were willing to take the first step: Azerbaijan refused to agree to a date for a referendum, later vehemently rejecting the very notion of allowing the people to determine their external status, while Armenia refused to return any of the surrounding areas under its control before the issue of the status was resolved. It is easy for the mediators to blame the parties for the lack of progress. After all, it is Armenia and Azerbaijan who should agree on the terms, not the mediators. However, this is a simplistic and self-exonerating approach to the dilemma, especially on behalf of the Western World.

The deterioration of Moscow’s diplomatic relations with USA and EU along with the latter’s unsustainable policy towards South Caucasus, allowed Russia to assume a clear leading role in its “backyard.” Had there been a political will to resolve the conflict based on international law, the OSCE could and should have stepped in more decisively, as the international community did in e.g. Kosovo, perhaps the closest parallel to the Karabakh conflict. Stopping further bloodshed, the OSCE could, instead of a deadlocked mediation, resolve the conflict by arbitration through enforcing its own charter: deploying an international peace-keeping force, restoring the territorial integrity of Azerbaijan, while setting a date for a referendum, guarantying Karabakh population’s right to self-determination. Although the political reality has changed dramatically on the ground, the international norms envisioned in the Madrid Principles are still in force to be implemented, but only if there is a political will to back them up.