What is Remedial Secession?

Nagorno-Karabakh has been inhabited by ethnic Armenians for over two millenia, as cultural and religious sites, and historic records, testify. For many centuries it was home to mixed communities from different ethnic groups, as was commonly found on trading routes in the Caucasus region; yet the majority population has always been ethnically Armenian.

The history of Nagorno-Karabakh in the twentieth century is complex, and determination of its statehood in international law remains contested. In the 1920s, the borders of the new republics of Armenia, Georgia and Azerbaijan were still being determined when the Soviet Union was created. During the Soviet Union, the areas of Nagorno-Karabakh, Zanghezour and Nakhichevan were originally recognised as part of the Armenian Soviet Socialist Republic, and were only later included in the Azerbaijan Soviet Socialist Republic. At the collapse of the Soviet Union in the 1980s and 1990s, the population of Nagorno-Karabakh overwhelmingly voted to secede from the Soviet Union as its own independent state. Unfortunately, this request for independence was not recognised by the new Azerbaijan state and a war ensued in the 1990s between the majority ethnic Armenian population and the Azerbaijani army.

As a result of the 1990s war, most of the area of Nagorno-Karabakh was taken by the ethnic Armenian population, who went on to establish a new Republic of Artsakh. During the following fifteen years, the Artsakh Republic developed robust democratic and civic society infrastructure, as well as investing in rebuilding of cultural sites and archeological and geological study of the area. However, following the 2020 conflictthe majority of Nagorno-Karabakh is now solely under Azerbaijan’s control. Over 100,000 ethnically Armenian refugees were created and left with no access to their historic towns, villages and homes; and hundreds of cultural and religious Armenian sites have been cut off from Armenians.

International law makes provision for protecting ethnic populations who are at risk of genocide, ethnic cleansing and other crimes against humanity by their home state. The principle of self-determination - the right of a territorially distinct and concentrated minority people to be ruled by a government reflecting their interests - has evolved over the twentieth century and has been applied by international courts leading to enclaves seceding from larger states. Although this has primarily been in the case of decolonisation, there are several instances of enclaves being granted secession outside of colonised countries, including East Timor, Bangladesh, Kosovo and South Sudan.

There are clear arguments for the principle of self-determination to be applied in the case of Nagorno-Karabakh. First, the continuous existence of ethnic Armenians in the area and the relatively short time of the area being included in the Azerbaijani Soviet Republic. Secondly, the proven ability of Artsakh to operate as an independent state over the last two decades, according to international legal principles.  Thirdly, and most importantly, the systematic and state-led Armenophobia and oppression of Armenian minorities in the Azerbaijan state which renders it highly unlikely that the rights of the ethnic Armenian population of Nagorno-Karabakh will be represented by the home state.

Under these conditions, the international community is bound to act to support the ethnic Armenians in this area according to its obligations under the UN resolution of Responsibility to Protect against genocide. The most effective tool to protect the people of Nagorno-Karabakh will be to grant its population remedial secession from the state of Azerbaijan.

The case for Remedial Secession

In 2005, the UN adopted a global commitment - known as Responsibility to Protect - to prevent and halt genocide, ethnic cleansing, other crimes against humanity and major war crimes. Responsibility to Protect (R2P), contains three pillars:

1. State responsibility to protect its own population;
2. The international community’s duty to assist states in fulfilling their duty to prevent and protect;
3. The international community’s responsibility to take timely and decisive action through peaceful means, failing which it may use more forceful means, in a manner consistent with international law.

There are various tools for the international community to use to prevent and protect against genocide. In the most serious of cases, the use of remedial secession, or independence from the home state, is favoured. The case for remedial secession in Nagorno-Karabakh is primarily based on the right of the people to self-determination - the principle that a territorially distinct and concentrated minority people have the right to be ruled by a government reflecting their interests.

Azerbaijan regularly invokes the principle of uti possidetis juris and, by extension, territorial integrity, as grounds for claiming the illegality of the independence of Artsakh. However, the principle of territorial integrity of states does not contain an implicit prohibition on secession, and there is no prohibition on secession in international law.

A people’s right to self-determination is a general principle of international law enshrined in a number of fundamental international instruments, including, inter alia, the UN Charter, the International Covenant on Civil and Political Rights, and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. The International Court of Justice has recognized the erga omnes character of the right to self-determination, which it qualified as “one of the essential principles of contemporary international law”. The Supreme Court of Canada has also recognized that “the existence of the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond ‘convention’ and is considered a general principle of international law”.                                                         

Artsakh has always been legally independent of Azerbaijan

The first plank of the argument for remedial secession in the case of Nagorno-Karabakh is the continuous existence of ethnic Armenians in the area and the relatively short time of the area being included in the Azerbaijani Soviet Republic. Simply stating that Nagorno-Karabakh was part of this Soviet Republic does not constitute a basis for a permanent legal determination; the collapse of the USSR led to many smaller countries being recognised, most notably those of the former Yugoslavia. Indeed, the creation of the Minsk talks under the Organisation for Security and Cooperation in Europe (OSCE) was to help determine the final legal status of Nagorno-Karabakh.

The 1920s-1970s: unclear international borders at the creation of the USSR

At the turn of the twentieth century the international borders between Armenia, Artsakh and Azerbaijan had not yet been established under international law. On 22 August 1919, Artsakh and Azerbaijan signed an agreement stipulating that their boundaries would be settled at the 1919 Paris Peace Conference. At the Paris Peace Conference, the Commission “on the boundaries of a new independent State of Armenia” considered it advisable to await the results of an agreement between Armenia, Georgia and Azerbaijan, failing which the League of Nations would appoint an inter-allied Commission to arbitrate the dispute and determine borders based on “the principle of ethnographic data”.                        

At the time, Artsakh’s population comprised over 90% Armenians and was self-governed. The Congress of Artsakh Armenians had elected their own government (the National Council and Peoples government) and proclaimed their independence in a series of Congress meetings between July 1918 and April 1920.

On 1 December 1920, the League of Nations rejected Azerbaijan’s request for statehood, finding that, given the border disputes, it was impossible to determine the exact limits of the territory over which Azerbaijan exercised authority. The border issue was still unresolved when the Soviet Union took control of the region.                                  

On 30 November 1920, the Azerbaijan Soviet Socialist Republic (“SSR”) recognized Nagorno-Karabakh, Zanghezour and Nakhichevan as integral parts of the Armenian SSR. Artsakh was nevertheless forcibly annexed to the Azerbaijan SSR in July 1921 under Stalin’s direct pressure. Such annexation was illegal even under Soviet law. Two years later, the Union of Soviet Socialist Republics (“USSR”) re-administered Artsakh as the Nagorno-Karabakh Autonomous Oblast (“NKAO”), giving it wide autonomy. The population of Nagorno-Karabakh (94% Armenian) was denied “even the most minimal possibility of participation” in this decision-making process. Artsakh’s repeated requests for the USSR to reconsider its internal jurisdictional divisions for unification with the Armenian SSR fell on deaf ears. USSR authorities would eventually admit, in 1977, that Artsakh had been artificially annexed to the Azerbaijan SSR, without taking into consideration, notably, the “will of its people”.

The 1980s-1990s: seeking independence in the collapse of the USSR

As the Soviet Union began to unravel, the people of Nagorno-Karabakh once again made a bid for independence. On 20 February 1988, the NKAO passed a resolution requesting a transfer to the Armenian SSR’s jurisdiction. One week later, mobs of ethnic Azerbaijanis formed into groups and attacked and killed Armenians for three days in the Azerbaijan SSR town of Sumgait, in the streets and in their apartments (“Sumgait Pogrom”). Intellectuals and political leaders who called for the unification of Artsakh to the Armenian SSR were imprisoned or assassinated. On 15 June 1988, the Supreme Soviet of the Armenian SSR voted unanimously for unification with the NKAO; two days later the Supreme Soviet of the Azerbaijan SSR, equally unanimously, rejected the decision.

On 7 July 1988, the European Parliament condemned the Sumgait Pogrom as well as anti-Armenian violence in Baku, recognised the arbitrary inclusion of the NKAO within the Azerbaijan SSR, and supported the demand of the Armenians of Nagorno-Karabakh for reunification with the Armenian SSR. On 12 July 1988, the NKAO passed a resolution to withdraw from the Azerbaijan SSR and to become an independent republic named “the Artsakh Armenian Autonomous Region”.

In an attempt to right a historic wrong, in January 1989 the USSR placed the NKAO under a special administration committee directly accountable to the supreme state organs of the USSR; this committee however, was dissolved later that year, leaving Artsakh with no political representation. On 11 August 1989, Artsakh formed the “Congress of the Authorized Representatives of the Population of the Autonomous Territory of Nagorno-Karabakh” and elected a national council with authority over Nagorno-Karabakh.

At the collapse of the Soviet Union, Artsakh legally seceded from the USSR in conformity with the USSR’s law and procedure promulgated in 1990 governing the secession of one of its constituent parts (“USSR Law on Secession”), according to which an autonomous region, such as the NKAO, could secede from the USSR or from a Union Republic by referendum. However, given the USSR’s rapid dissolution, it was virtually impossible to follow all of the required mechanisms, and Union Republics accordingly proclaimed their unilateral independence one after another in 1991. Artsakh followed the same approach used by other seceding Union Republics: declaring independence and then conducting a referendum to determine the population’s will to secede.

On 2 September 1991, the NKAO proclaimed its independence from the USSR and on 10 December 1991, 82.2% of the total number of the registered voters took part in a referendum, 99.89% of whom voted “yes” to the question: “Do you agree that the proclaimed Nagorno Karabakh republic be an independent state acting on its own authority to decide forms of co- operation with other states and communities?”. The referendum was monitored by over 20 external observers including deputies from the USSR, the Russian Soviet Federative Socialist Republic, the city council of Moscow as well as human rights advocates, all of whom reported that the vote was conducted without any procedural violations and represented the free will of the voters.

Azerbaijan similarly declared its independence on 30 August 1991, and then held its referendum on 29 December 1991, nineteen days after Artsakh. The European Parliament has since recognised that Artsakh “declared its independence following similar declarations by former Soviet Socialist Republics after the collapse of the USSR in September 1991”. Accordingly, the secession of Artsakh from the USSR and the Azerbaijan SSR was implemented before Azerbaijan obtained its own independence. As such, when the independent Republic of Azerbaijan was pronounced, Artsakh was no longer a part of it.

The 1990s: war, UN resolutions and ceasefire

Following the NKAO’s bid to secede from the USSR as an independent state, relations with Azerbaijan rapidly deteriorated and war erupted in late 1991**.**

The United Nations (UN) was called upon to intervene in the conflict and at various points during 1993 the UN Security Council adopted four resolutions with the aim of ending the hostilities. The Resolutions, which primarily demanded the “immediate cessation of hostilities and hostile acts with a view to establishing a durable cease-fire”, led to the 1994 and 1995 ceasefire agreements.

Azerbaijan often cites these resolutions to support its territorial claim to Artsakh, and to justify the use of force against its Armenian population. However, there are various reasons why this is inapposite:

• The primary purpose of the resolutions, and indeed of the UN Security Council, is to restore and maintain peace. The UN Security Council has no authority to make any decisions as to statehood or territorial limits through its resolutions or otherwise. The only principal UN organ vested with such powers is the International Court of Justice. The Resolutions may therefore not be used to claim ownership of territory.
• None of the Resolutions direct UN member states to refuse the recognition of Artsakh, in contrast to directions the Security Council has given regarding certain illegitimate regimes or declarations of independence in the past. Indeed, the Resolutions reaffirm the respect for sovereignty and territorial integrity “of all States in the region”. All references to territories made in these Resolutions must thus be interpreted in the context of an ongoing war over a secession that had already taken place.
• The Resolutions also reiterate the UN Security Council’s support for the OSCE Minsk Group as the appropriate framework to negotiate a final settlement.
• The UN Security Council did not adopt any of the Resolutions under Chapter VII of the UN Charter, which is the only avenue to mandate the use of force, and the sole prerogative of which lies with the UN Security Council.

Artsakh is an independent state under international law    

The second plank of the argument for remedial secession is the proven ability of Artsakh to operate as an independent state over the last two decades. The 1933 Montevideo Convention on the Rights and Duties of States (“Montevideo Convention”) sets out the objective criteria that must be fulfilled in order for an entity to be recognised as a State, and is considered part of customary international law.  

Artsakh fulfills all four criteria as follows:                                    

(a) Artsakh has a permanent population of 150,000 people, 95% of whom are Armenian. The indigenous Armenian group’s presence in Nagorno-Karabakh dates back over two millennia. The population shares a common language (Armenian), religion (Orthodox Christian) and culture. The region is host to ancient Armenian ruins, and hundreds of Armenian churches and cemeteries, carrying countless famous Armenian cross-stones (“Khachkars” in Armenian), classified by UNESCO as a part of the Intangible Cultural Heritage of Humanity.

(b) The territory of Artsakh is defined in its proclamation of independence on 2 September 1991, namely that the Republic of Nagorno- Karabakh is within the boundaries of the NKAO region and the adjacent Shahumian district.            

(c) Artsakh has its own government, which holds elections under a democratic constitutional framework. The government is composed of a National Assembly made up of 33 members, and a judiciary (its Supreme Court is composed of a chairperson and six female judges). The government is currently led by the head of state, President Arayik Harutyunyan.                                          

(d) Artsakh has full capacity to enter into relations with other States, through its Council of Ministers, particularly the Minister of Foreign Affairs, whose responsibilities include diplomatic relations. However, until other States recognize the independence of Artsakh, it is prevented from entering into formal diplomatic relations with them, despite being otherwise willing and capable of doing so. Artsakh has nevertheless established representative offices in Armenia, France, Germany, Russia, Australia, Lebanon (accredited to all Middle Eastern countries) and the United States (also accredited to Canada), as well as a number of friendship groups and circles around the world, including with Canada.

It is important to note that the Montevideo Convention does not list recognition by other States as one of the criteria for statehood. In fact, Article 3 of the Montevideo Convention confirms that “[t]he political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.”

However, a number of countries and cities do recognise the independence of Artsakh, or have formed relations with Artsakh, as would befit an independent state.

Azerbaijan does not respect or reflect the rights of minorities

The third plank of the argument for remedial secession is the systematic and state-led Armenophobia and oppression of Armenian minorities in the Azerbaijan state. This includes the gross human rights violations and war crimes that occurred during and after the 2020 war.

The possession of a State, or sovereignty, is not a human right, but rather – as articulated by the R2P doctrine – is dependent on respect for human rights. As the UN Human Rights Committee has indicated, self-government of a people is an “essential condition” for the exercise and observance of other rights. The breakdown of State legitimacy occurs at the point where it fails to protect and promote the rights of its inhabitants. As such, territorial integrity is not assured where States do not comply with the principles of equal rights and self-determination. When a country violates a peoples’ right to self-determination or freedom from systemic abuses and discrimination, the latter may have recourse to secession from that State.                                         

The jurisprudence of the International Court of Justice indicates that the international community has taken the steps to endorse secession when a State commits atrocity crimes against a territorially concentrated minority. In particular, judges in the Kosovo case affirmed the principle that remedial secession is justified in cases where a group is subjected to systemic discrimination, repression and crimes against humanity. Moreover, written and oral statements of States participating in the Kosovo case proceedings reflect opinio juris towards the external right to self- determination in cases where the parent state has engaged in severe, long- lasting refusal of internal self-determination and/or systemic, severe, and massive human rights violations.

In its landmark judgment regarding the legality of unilateral secession under domestic and international law, the Supreme Court of Canada similarly affirmed that a State is entitled to the protection of its territorial integrity as long as its government represents the whole of the people within its territory in its own internal arrangements on a basis of equality and without discrimination. The right of secession (or external self-determination) accordingly arises when it is not possible for a people to exercise their right of self-determination within the framework of an existing state (internal self-determination), in the following exceptional circumstances: (1) former colonies; (2) where a people is oppressed (for example, under foreign military occupation); or (3) where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. The Supreme Court of Canada asserted that “[i]n all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination.”

Internationally recognized secession, therefore, operates akin to the R2P doctrine, where sovereignty and territorial integrity are dependent upon upholding the rights of citizens. As seen in situations such as that of East Timor, Kosovo and South Sudan, secession became the option of last resort for the international community once it became clear that Indonesia, Serbia and Sudan had committed serious crimes.