BY MISCHA GUREGHIAN HALL
This year has seen the most considerable build-up of armed forces on the European continent since World War II. Officials across the West and within international organizations have sounded the alarm that Europe is the closest to war it has been in 70 years. On Tuesday, Russia took the step to recognize the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR), regarded by the West as a major provocation and triggering sanctions from the United States, United Kingdom, and European Union.
However, among near-universal condemnation of Russia’s actions, there has been one notable exception—Artsakh’s President Arayik Harutyunyan. Following Russian President Vladimir Putin’s recognition of the two separatist regions of Ukraine as independent states, Harutyunyan praised the move, likening the situations of the DPR and LPR to that of the Republic of Artsakh. Armenians generally may see Artsakh and these separatist regions as parallel cases of unrecognized republics heroically fighting for freedom, in turn supporting Russia’s recognition of Donetsk Luhansk. Yet this is a dangerous position, as identifying the stark factual and legal differences between the situations is integral to the continued pursuit of recognition for the Republic of Artsakh.
Our cases for independence are not the same.
Self-determination has two recognized avenues—internal and external. Internal self-determination refers to peoples’ interactions with domestic systems to exert their political will. This includes voting, protesting, civil disobedience, and running for office. External self-determination, also known as remedial secession, refers to a people separating from their host nation as means of exercising their self-determination. Artsakh’s declaration of independence is an example of remedial secession, in this case from Azerbaijan. The right to external self-determination, however, is not absolute. Courts have dealt with the issue of secession three notable times in history.
In 1920 a League of Nations legal committee ruled on the secession of the Aland Islands from Finland; in 1998, the Canadian Supreme Court ruled on the independence claims of Quebec; and in 2010, the International Court of Justice—the same tribunal hearing the ongoing Armenia v. Azerbaijan case—opined on the validity of Kosovo’s declaration of independence. These three cases have established three legal criteria for an unrecognized state to separate from another state—such as in the cases of Artsakh, the DPR, and the LPR.
Firstly, the group seeking independence must be a “people” in an ethno-geographic sense. In the Åland Islands case, the committee of jurists found the right to remedial secession to exist for peoples bound by “old traditions” or “a common language and civilization.” In this case, the committee found that political and national affiliations are not constitutive of a “people.” Therefore, a minority group characterized by such factors does not innately possess the actionable right to external self-determination. The second criterion is that the group in question must have been subjected to gross human rights violations. In the case of Quebec, the Supreme Court of Canada cited colonialist rule, military occupation, and denial of political participation as qualifying violations.
The International Court of Justice was less specific in its Kosovo decision, citing “alien subjugation, domination and exploitation” as predicates for remedial secession. The second criterion is closely linked to the third, which states that all other means for the group to exercise self-determination within the domestic political-legal framework of the subjugator nation have been exhausted. In the Åalan Island cases, the committee identified secession as only “a last resort.” The Canadian Supreme Court agreed, reserving secession only for cases in which a group has been “denied the ability to exert internally their right to self determination.”
However, the International Court of Justice affirmed, in its Kosovo opinion, a fundamental rule of international law that a new nation cannot be created through the use of aggressive force or the violation of peremptory norms of international law. The secessions of Donetsk and Luhansk blatantly fail this simple test and, perhaps more consequentially, do not satisfy any of the adobe three criteria. The illegality of waging of aggressive war, that is, the use of force in violation of another nation’s sovereignty, is perhaps the most explicit prohibition contained in the United Nations Charter. Moreover, the Nuremberg Tribunal—which tried Nazi war crimes, aggression, and crimes against humanity after the Second World War—recognized aggressive war as the “supreme international crime.” Russia’s deployment of military forces within the DPR and LPR under the guise of peacekeeping is a clear and present violation of Ukraine’s territorial sovereignty and an aggressive attempt to change international boundaries through the use of force. The DPR and LPR’s claims to independence cannot be seen outside the context of Russian imperialism and the desire to influence Ukraine’s political autonomy.
The people of the DPR and LPR are not distinct ethnic groups as demanded by the first criterion for legitimate remedial secession—they are politically pro-Russian separatists. Their claims for independence do not lie in demands of self-determination from a cultural minority, but in a desire to shun the West and politically drift towards Russia. Moreover, irregular military elements fighting for DPR and LPR are not so much freedom fighters as they are Russian proxies. Since at least 2014, it has also been widely recognized that Russian special forces are directly fighting for the DPR and LPR on the ground. The separatists are fighting less for the ideals of independence and self-determination than they are for Russian influence over the regions. This is further evidenced by Putin’s declaration, in conjunction with his recognition of the DPR and LPR, that all the territories of the pre-1918 Russian Empire are the rightful lands of the present Russian Federation. The people of the two regions never even declared what they want their borders to be, as acknowledged by the Kremlin’s press secretary in a recent interview with Bloomberg. President Putin recognized borders of Russia’s choice, driven by geopolitical ambitions of territory acquisition, not the self-determination of peoples.
The second criterion, however, would likely be satisfied, however, with important caveats. The human rights situation in Donetsk and Luhansk are generally abhorrent and may be seen as qualifying the second criterion. UN agencies and NGOs have widely and credibly reported atrocities committed by both sides. However, just as false equivalency is often drawn in Artsakh, holding pro-Ukrainian and pro-Russian forces as equals in terms of humanitarian violations is a fallacy. Russia and its proxy forces have committed alleged war crimes as part of a broader incursion into Ukraine to seize territory. While Ukrainian forces also have, for their part, likely violated the laws of war, the preeminent crimes of the aggressors, that is, the violation of sovereignty by force, are of an inexorably higher character.
Recalling the nature of the conflict, dissident political groups do not possess the legal right to succeed on the basis of differing desires of internal governance. Pro-Russian separatists lament Ukraine’s drift towards NATO and the West; however, disagreements over the direction of a nation are a common if not necessary feature of a healthy democracy. Democratic institutions of governance are the ultimate tools of self-determination, as they allow for a group’s voice to be heard within their national government. If every political minority group that disagreed, even fundamentally, with the direction a country is going, cannot possess the right to secession. A new ‘people’s republic’ would emerge every hour if this were the case. Democracy provides the population an avenue to air their grievances and seek change. Pro-Russian separatists have abandoned internal self-determination and democracy, instead turning to the use of force as a first rather than last option. As such, the third criteria is definitively unsatisfied.
On the other hand, the strength of Artsakh’s case for independence lies in its satisfaction with the above-enumerated criteria. The people of Artsakh are undeniably a distinct ethnic Armenian minority within Azerbaijan, satisfying the first criterion. The history of the region since at least 1920 provides a well-documented history of atrocities committed by Azerbaijan against the population of Artsakh and on Armenians living elsewhere in the country. More recently, this record has been confirmed by the European Court of Human Rights in a number of cases, satisfying the second criterion. Lastly, over the past thirty years, all avenues for a peaceful resolution of the Artsakh conflict have been exhausted and generally confounded by Azerbaijan’s disengagement from the Minsk Group mediation process. Azerbaijan has, moreover, demonstrated an unwillingness to comply with ceasefire agreements or the principles of a peaceful conflict settlement. Avenues for internal self-determination within the legal structure of Azerbiajni law have failed the people of Artsakh; the third criterion is satisfied.
Possessing such a strong case for lawful secession as prescribed by international law, it is a grave mistake for Armenian officials to depart from this accepted legal structure. The Armenian people can never hope for an internationally recognized Artsakh without defending the legal validity of Artsakh statehood under international legal precepts. The three-point criteria are the best—and likely all—we have to argue for Artsakh’s right to self-determination effectively, and publicly recognizing republics claiming independence while not conforming to these criteria effectively dismisses the validity of the criteria altogether. Yet, in a legal world where these criteria have no legal weight, Artsakh holds no hope of legitimate recognition. Many Armenians may hope that we can legitimize Artsakh through the continued defense of its lands by brave young soldiers. As noble as this may be, it is no path to Artsakh’s recognition as a sovereign nation.
The only course the Armenian people have is engaging with relevant international norms. If we simply throw these norms aside in the interest of supporting separatist states which we believe share parallel destinies to ours, we surrender any hope of achieving what we have long fought for—a free and independent Armenian Artsakh.
Mischa Gureghian Hall is a freshman at UCLA, majoring in Global Studies.
