The Case for #RecognizeArtsakh, in Plain English[1]

Stepan Khzrtian, Esq. (Twitter: @khzrt)

Today, the world is being called upon to recognize the independence of the Republic of Artsakh on the basis of remedial secession. Naturally, this begs a series of questions, the first of which is:

What is remedial secession?

Remedial secession is the right of a people living within a country to withdraw (or secede) from that country and form their separate, independent state – or to avoid joining back with that country if they’ve already seceded and formed their separate, independent state. Under international law, the right to remedial secession arises when a people living within a country is subjected to systemic and severe violations of fundamental human rights or the government of that country discriminates against that people, and when all other measures to resolve the situation have been tried but have failed. In such cases, to protect the people from physical annihilation, they must form a separate, independent state as the final solution.

In a sense, remedial secession is like the right to self-determination, but for extreme situations like the ones described above. Which brings us to our next question:

What is the right to self-determination?

The right to self-determination is the right of a people living within a country to decide how they wish to be governed (or their international political status), without the interference of that country. Sometimes, it’s said that the right to self-determination must be exercised in compliance with the principle of territorial integrity of the country where this people lives. But before we can see if that’s true, we need to answer our next question:

What is territorial integrity?

Territorial integrity means that the land (or territory) of a country must be accepted as one unit – as a whole. It cannot be altered with the use of force or the threat of force by another country.

At first sight, these two principles – the right to self-determination and territorial integrity – seem at odds with each other: you cannot have both at the same time. If a people living in a country wants to withdraw, then the territory of the country where they live is going to change; after all, the new state that the people form must have land, and that land has to come from somewhere, right? And this takes us to our next question:

Who wins, territorial integrity or self-determination?

In normal situations, these two principles are generally seen on an equal level: yes, the people have a right to self-determination, but the territorial integrity of the country where they live must still be respected. As a result, both the country and the people should get their way: the country gets to keep its entire territory intact, and the people gets to run their lives as they wish, with a level of freedom, or autonomy.

Sadly, there are extreme situations, and this is where remedial secession comes into play. It is not normal when the government of a country discriminates against a people living there and violates their most basic human rights in a systemic and severe way. In such extreme situations, the country loses the protection of territorial integrity and the people can form their separate state and enjoy the highest level of freedom: independence.

How extreme was the situation of Artsakh Armenians under Azerbaijani rule?

I would like you to think about and answer this question yourself as we embark on a brief history of Artsakh Armenians and Azerbaijan.

For over a hundred years, the Artsakh people have sought to be free from foreign and especially Azerbaijani rule at least 11 times. They have expressed this wish five times in the span of only two years, from 1918 to 1920. They have raised this issue another five times during the Soviet Union era, seeking to get out of Soviet Azerbaijan and unite with Soviet Armenia, in 1945, 1965, 1967, 1977, and 1988. In 1991, after ten attempts to gain freedom over the course of seven decades, the Artsakh people declared their independence as the Republic of Nagorno Karabakh (or Artsakh) in accordance with international law and the national laws of the time.

The Artsakh people have met discrimination or massacres, ethnic cleansing, and deportations by the Azerbaijani authorities each and every time they have sought freedom from foreign and especially Azerbaijani rule. The 1918-1920 efforts for self-determination were flanked by massacres in Baku, Khaibalikend, and Shushi, which saw the killing of 50,000 Armenians and the looting, burning, and destruction of homes and structures at the hands of Turkish-Azerbaijani forces. This signature revealed itself again right after the Artsakh people sought unification with Armenia in 1988, through massacres in Sumgait, Kirovabad, Baku, and Maragha from 1988 to 1992, and took on the form of forced deportations and ethnic cleansing of 24 Armenian villages in 1991 – months before the Artsakh people were to declare their independence.

Discriminatory socio-economic policies of Soviet Azerbaijan against Artsakh Armenians were a hallmark of the 70 years of Soviet rule, only a few instances of which are listed here. The Artsakh economy and infrastructure were deliberately kept underdeveloped and reliant on Soviet Azerbaijan. A state-organized campaign of squeezing out Armenians from Artsakh and settling Azerbaijanis instead reduced the Armenian demographic from 96% in 1921 to 75% in 1979. Armenian schools were shut down, instruction of Armenian history was replaced with Azerbaijani history, and radio and television broadcasts from Armenia were banned. In an assault on heritage, hundreds of churches, monasteries and cemeteries were destroyed, and the ones that remained were appropriated as Albanian or labeled as “dangerous religious centers of the past.”

By now, I believe you will have concluded that the situation of Artsakh Armenians under Azerbaijani rule was quite extreme. In such case, as mentioned above, Azerbaijan can no longer claim territorial integrity to block the right of the Artsakh people to be independent, achieved in 1991.

How did the Artsakh people achieve independence in 1991?

There are two parts to the answer: one based on international law and the other based on national law.

Under international law, this happened based on remedial secession: a right of self-determination available in extreme situations, as a culmination of the efforts of the Artsakh people to live free of foreign and especially Azerbaijani oppression. Take a moment to recap the definition of remedial secession at the very top of this text and compare it to the brief history provided above: you will notice that the Artsakh Armenians were subjected to systemic and severe violations of fundamental human rights through massacres, ethnic cleansing, and deportations, and the Azerbaijani authorities discriminated against Artsakh Armenians socially, economically, and culturally. Further, all attempts to resolve the situation through alternative measures – particularly, through several written requests to the Soviet Union authorities – were shrugged off or crushed.

Under national law, this happened based on Soviet laws, which were still in effect until December 26, 1991 – the day the Soviet Union ceased to exist. The Soviet law on seceding from the USSR provided that if a soviet republic had an autonomous region within its territory, then a separate referendum must be held in that autonomous region, allowing the people of that region to decide whether they wish to (a) remain within the Soviet Union, (b) remain as part of the seceding soviet republic, or (c) raise the issue of their state status. And this is exactly what happened in 1991: the Artsakh people, then an autonomous region within the soviet republic of Azerbaijan, adopted a resolution on independence on September 2, 1991 and affirmed this through a separate referendum on December 10, 1991, overwhelmingly voting to be independent of Azerbaijan and of USSR. In fact, this all happened before Azerbaijan achieved its own independence from USSR – through an independence resolution on October 18, 1991, affirmed by referendum on December 29, 1991 – based on the very same laws with which Artsakh achieved its independence. In other words, when Azerbaijan became independent, Artsakh was no longer part of its territory, since it had seceded long before. It turns out that Azerbaijan’s claims to territorial integrity are not only invalid; they are irrelevant.

The Artsakh people did everything by the book, and that leads us to our next question:

What happened after the 1991 remedial secession of Artsakh?

Not very pleased with the Artsakh people, the Azerbaijani authorities not only refused to recognize the independence of Artsakh, but even went ahead and revoked the little autonomy they had left in an unconstitutional decision, and then launched an all-out war riddled with heinous atrocities and war crimes against civilians. The Artsakh Armenians were able to successfully defend their homes and achieve a ceasefire agreement in 1994, signed by three parties: Artsakh, Azerbaijan, as well as Armenia as a guarantor of the security of Artsakh.

A peace process was initiated to resolve the conflict through negotiations, without using force, organized by the OSCE Minsk Group and mediated by the three leaders of that group: France, Russia, and the U.S.

How did the peace process go?

With three global powers at the helm of the mediation efforts, a robust peace process was launched. However, the diligence of the mediators has since been met with the maximalist positions of Azerbaijan and its multiple violations of the ceasefire regime. To this day, Azerbaijan continues to reject the possibility of Artsakh being an independent country and even the rig