The Artsakh Question: An Analysis of Territorial Dispute Resolution in International Law

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. …