Nagorno-Karabakh and the Myths of International Law.

 

"A central feature of modern cosmopolitanism is the idea that transnational institutions can manage old-fashioned interstate conflict by relying on the rule of law, dialogue and economic prosperity. Should a state go rogue, the theory has it, the international order will punish it with a cold shoulder diplomatically and economically.

This often proves to be a fantasy. The most recently defeated is Nagorno-Karabakh, an enclave within Azerbaijan claimed by Armenian separatists. On Tuesday Azeri forces launched an assault on the territory. Though the exact situation on the ground remains unclear, Armenian forces have agreed to lay down their arms, leaving the isolated mountain region likely to be fully absorbed into Azerbaijan.

Nagorno-Karabakh existed for nearly three decades as an internationally unrecognized state closely tied to Armenia. Yet the Azeri use of force has been met with a shrug by the international community. Like many ancient conflicts, the historical rights and current facts are hotly contested. But there are strong equities on both sides. The dispute, and the international reaction to it, has important lessons for the world about law and power.

Azerbaijan has a superior legal claim to the land. When Azerbaijan and Armenia were both part of the Soviet Union, Karabakh was a Armenian-majority semiautonomous district within Azerbaijan. That didn't matter much, considering the Kremlin ruled both. When the U.S.S.R. fell, its internal borders became acutely important, because under an absolute and fundamental rule of international law known as uti possidetis juris, a new country inherits the borders of the prior administrative entity in the area -- regardless of how unfairly those demarcations were gerrymandered.

This would have meant that Karabakh wouldn't be a part of Armenia, which led to a war between 1988-94. Armenian forces won, securing the territory and the surrounding mountainous areas of Azerbaijan that lie between the enclave and Armenia. The war also led to significant population transfers between the two countries, reminiscent of earlier independence wars of that century. A second war, in 2020, ended with significant Azeri gains.

Azerbaijan's complete capture of Karabakh now is therefore legally a liberation of its own territory, albeit over which it has never actually had control since independence. The legal facts, incidentally, have an uncanny resemblance to Israel's legal position when it secured Judea and Samaria -- the West Bank -- from Jordan in 1967, after Amman seized the territory and expelled its Jews in the 1948 War of Independence.

But international law isn't a substitute for justice or morality. Armenia has ancient links to the area, which is home to one of the world's oldest Orthodox Christian churches. Most of its people are Armenians, who don't want to be brought into the Azeri fold after memories of 20th-century pogroms and hostilities. History suggests that most of them won't stay in Karabakh under Azeri rule, especially given Armenia's inability to protect them and Azerbaijan's unwillingness to offer the residents significant autonomy. If Baku can persuade them to stay as a minority, it will be a strong sign of Azerbaijan's good intentions.

A few lessons emerge from the conflict. The first concerns the strength of instinct over institutions. Tribal hatreds and resentments and nationalist ambitions are alive and well in the 21st century. Wars over soil aren't limited to backward nations or totalitarian states: Armenia and Azerbaijan are both members of the Council of Europe and the Organization for Security and Cooperation in Europe. The latter's decadeslong attempt to resolve the conflict has had no effect.

Instead, the "frozen conflict" has been resolved by the overwhelming superiority of Baku's forces. That militant fact provides a second lesson about grand claims on behalf of international law. Azerbaijan's final assault on Karabakh wasn't in response to any immediate Armenian aggression. Generations of international lawyers have claimed that forcible changes even to stable armistice lines are illegal under U.N. General Assembly Resolution 2625 -- the "friendly relations declaration" of 1970 -- and can't be recognized by other states. But this has always been a fiction, applied selectively. Baku's sovereignty in Karabakh will be recognized.

The third lesson relates to defense. Perhaps the international community will take pity on the weaker side, but that's a risky bet.

The final lesson is historical. Religious or ethnic solidarity used to be one of the dominant motives in international wars and politics. Turkey is Azerbaijan's principal ally, but such considerations no longer seem to drive the Christian West. And God help those states that must stand alone.

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Mr. Kontorovich is a professor at George Mason University Scalia Law School and director of its Center for the Middle East and International Law." [1]

1. Nagorno-Karabakh and the Myths of International Law. Kontorovich, Eugene. 
Wall Street Journal, Eastern edition; New York, N.Y.. 22 Sep 2023: A.19.