Nagorno-Karabakh

The September 2023 mass displacement of Armenians from Nagorno-Karabakh, widely characterized as ethnic cleansing, reignites the critical debate on the limits of self-determination under international law. The extreme oppression faced by Armenians meets the threshold for remedial secession, raising fundamental questions about the role of law in addressing such crises.

Fundamental rights violations of this scale persist and evolve, creating a continuous and urgent need for meaningful action. Until these injustices are adequately addressed, their impact remains a pressing reality, demanding sustained attention and commitment from the international community.

The fight for self-determination has defined the Nagorno-Karabakh Armenians’ struggle for decades. Once rooted in aspirations for political autonomy and independence, this principle became entangled in geopolitics and international law over time. Currently, despite being uprooted from Nagorno-Karbakah, Armenians retain their right to self-determination, grounded in history and international law. The question is, what comes next?

The Content of Self-Determination

The UN Charter enshrines this principle in Article 1(2) and Article 55, linking it to equality, human rights, and social progress. Subsequent legal instruments, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), further established self-determination as a collective right of peoples.

While self-determination is not recognized as jus cogens — largely because it often conflicts with the principle of territorial integrity — specific aspects of it have attained a peremptory status. These include norms tied to freedom from colonial domination, racial subjugation, and apartheid. For instance, the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid explicitly classifies apartheid as a crime against humanity, a characterization affirmed through UN General Assembly resolutions and customary international law. Similarly, the ICJ’s Namibia Advisory Opinion (1971) condemned South Africa’s policies, including apartheid, as fundamentally incompatible with international law (para. 131).

These elements reflect obligations erga omnes, meaning duties owed universally to the international community, which cannot be derogated. They demonstrate how certain facets of self-determination transcend territorial disputes, embodying a universal legal imperative to combat systemic oppression and racial discrimination.

Self-determination is a multifaceted concept that includes the right of a people to choose their form of government within an existing state (internal self-determination). This aspect is implied in Articles 73(b) and 76(b) of the UN Charter. Internal self-determination focuses on the sovereign equality of states and the autonomy of peoples within a state’s borders to freely select their governance structures without foreign intervention. In practice, this interpretation of self-determination underpins the legal framework for decolonization, granting former colonies the right to independence while respecting the territorial integrity of existing states.

Yet, with decolonization effectively completed now, self-determination is far from a concept in desuetude. In the case of Nagorno-Karabakh, the situation calls for a reexamination of how self-determination can be applied beyond the classical decolonization paradigm. The exact content of the right to self-determination remains a subject of ongoing debate. The question is whether it is limited to minority rights within a state, includes autonomy, or, as a last resort, implies a right to secession when the incumbent state fails to fulfill its obligations. This latter interpretation becomes particularly intriguing given the UN Charter’s silence on the explicit right to external self-determination, which would entail breaking away from a parent state.

The ‘Safeguard Clause’

The Nagorno-Karabakh Armenians’ claim to self-determination has historically been grounded in Soviet law, which allowed autonomous regions limited avenues for asserting political will. However, as Nagorno-Karabakh was not a Soviet republic, its claim lacked the legal standing required for international recognition.

The question now is whether self-determination remains a viable legal argument for Armenians forcibly displaced in 2023. A pivotal development in the evolution of self-determination emerged with the ‘safeguard clause.’ It was first introduced in Principle 5, Paragraph 7 of the Friendly Relations Declaration. It was later reaffirmed by the Vienna Declaration of the United Nations World Conference on Human Rights in 1993.

According to this safeguard, a state that upholds the principle of equal rights and self-determination for all its people complies with its international obligations and, in turn, is entitled to the protection of its territorial integrity. This principle suggests that when a government truly represents its entire population on an equal basis, the people within that state are considered exercising their right to self-determination through participation in the state’s governance.

But what happens when a state systematically excludes a population, denies them meaningful representation, or subjects them to severe oppression? The safeguard clause indirectly acknowledges that in such extreme cases, the protection afforded to territorial integrity may shift to support the oppressed group’s right to external self-determination. This nuanced balance between sovereignty and justice becomes the turning point in understanding Nagorno-Karabakh’s plight.

One of the most prominent modern discussions on the issue of remedial secession took place in the Quebec Secession case before the Canadian Supreme Court. The Court tackled the tension between a state’s territorial integrity and a people’s right to self-determination (para. 126). Canada argued that the ‘safeguard clause’ protects states from secession, provided they uphold equality and represent all citizens fairly. The Court underlined that a state committed to equality can safeguard its territorial integrity, but the safeguard clause offers no protection where governance fails to uphold these principles.

The ethnic cleansing of Armenians from Nagorno-Karabakh, following Azerbaijan’s ten-month blockade, epitomizes the extreme oppression outlined by the Canadian Supreme Court as justifying external self-determination. Azerbaijan’s actions and posture reflect an unequivocal unwillingness to grant even minimal self-determination to the Armenian population.

What strengthens the case for Nagorno-Karabakh Armenians’ right to remedial self-determination is the contention that their ordeal amounts to crimes against humanity, specifically forced deportation, under international criminal law. Article 7(1)(d) of the Rome Statute criminalizes deportation or forcible transfer when individuals are compelled to leave their homes through threats, coercion, or psychological oppression. The ICJ, in its provisional measures, emphasized the involuntary nature of the exodus, highlighting the coercive environment and severe deprivation that left Armenians with no genuine choice but to flee. This underscores the gravity of the events, elevating them to the threshold of extreme oppression identified in the Quebec case as justifying remedial secession

In response to Azerbaijan’s military actions in September 2023, the Parliamentary Assembly of the Council of Europe (PACE) labeled the mass displacement of Armenians as “ethnic cleansing.” PACE emphasized that these actions not only violated international law but also met the criteria for crimes against humanity under the Rome Statute of the International Criminal Court (ICC). It highlighted the “genuine threat of physical extinction” and systemic discrimination that created a coercive environment, forcing Armenians to flee their homes (para. 11).

The ICJ reinforced this assessment on November 17, 2023, in its provisional measures against Azerbaijan. The Court observed that over 100,000 Armenians were forcibly displaced due to severe psychological and physical threats, concluding that these conditions violated their rights to equal treatment and freedom of movement. The Court unequivocally affirmed that this displacement was not voluntary, but the result of coercive pressure orchestrated by Azerbaijan (para. 58). In a previous article, I analyzed how these actions meet the legal definition of crimes against humanity under the ICC Statute, providing further legal grounding for the case of remedial self-determination.

The systemic denial of fundamental rights, compounded by the forced displacement of Armenians from Nagorno-Karabakh, creates a compelling legal case for remedial self-determination. Under international law, these extreme conditions meet the threshold for remedial secession as a last resort to protect a population from oppression and ensure their right to determine their future.

The Right to Return

To round out the discussion, the right to return must be addressed as a crucial element in the broader context of self-determination for forcibly displaced Armenians. This fundamental principle of international law offers a pathway for reclaiming their homes, preserving their identity, and reinforcing the legal framework underpinning their right to self-determination. Rooted in international humanitarian law (IHL), human rights law, and refugee law, the right to return imposes a heightened obligation on the state of origin to facilitate the return of individuals it has forcibly expelled.

The Universal Declaration of Human Rights (UDHR) and the ICCPR solidify the legal foundation for the right to return. Article 13(2) of the UDHR unequivocally declares that “everyone has the right to leave any country, including their own, and to return to their country.” Article 12(4) of the ICCPR reinforces this right, stating that “no one shall be arbitrarily deprived of the right to enter their own country.” This provision extends to future generations of displaced individuals who maintain “genuine and effective links” to their ancestral territory.

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) strengthens the right to return under Article 5(d)(ii), while the UN Human Rights Committee’s General Comment No. 27 underscores its applicability to enforced population transfers and mass expulsions. The ICJ’s provisional measures of November 17, 2023, upheld this right, highlighting the coercive conditions — threats, deprivation, and systemic pressure — that forced Armenians to flee. The Court reinforced their legal claim to return to their homeland.

International refugee law, anchored in the 1951 Refugee Convention and its 1967 Protocol, emphasizes voluntary repatriation as a cornerstone for durable solutions to displacement. Precedents like the 1995 Dayton Accord (Bosnia), the 1994 Guatemala Agreement, and mechanisms for Rwanda showcase the international community’s consistent efforts to secure displaced persons’ return to their homes of origin.

These frameworks enshrine three key principles: repatriation, restitution of lost property, and compensation for damages. In Bosnia and Kosovo, mechanisms safeguarded individual refugees’ rights to return and reclaim their homes, preserving self-determination alongside practical solutions.

The UN Security Council has repeatedly affirmed the right to return, labeling it an absolute principle in conflicts in Georgia, Bosnia, and Kosovo (para. 7; para. 11; para. 4; para. 7; para. 7). These precedents affirm their relevance, bolstering the principle’s applicability to displaced Armenians from Nagorno-Karabakh.

Conclusion

The plight of Nagorno-Karabakh Armenians lays bares a fundamental challenge. While international law arguably provides the framework for justice, its impact is often compromised by the absence of enforcement. The ethnic cleansing they endured meets the threshold for remedial secession, a last-resort mechanism to uphold self-determination under extreme oppression. Importantly, transforming legal rights into tangible outcomes demands an extraordinary alignment of political will, international presence, and global resolve. For the Armenians of Nagorno-Karabakh, meaningful self-determination hinges not just on legal recognition but on a concerted international effort to bridge the gap between principle and reality.

The case of Kosovo offers valuable lessons, but its limitations are equally instructive. Kosovo remains in limbo, with contested legitimacy and unresolved recognition. This underscores that cases like Nagorno-Karabakh cannot be resolved through legal frameworks alone. While the sui generis case of Kosovo provides insights, it cannot be a blanket roadmap for Nagorno-Karabakh.

For any meaningful resolution, Azerbaijan’s involvement is essential. Without its willingness to accept significant compromises, international pressure alone is unlikely to yield sustainable outcomes. A functional mechanism must include Azerbaijan alongside determined international actors, with the UN Security Council playing a pivotal role. However, current global divisions, Armenia’s pivot toward normalizing relations with Azerbaijan — at the expense of its role as a guarantor of the rights, security, and future of Nagorno-Karabakh Armenians — and Azerbaijan’s unprecedented strong stance following its military victory in 2020, cast a shadow over the feasibility of such efforts. Without a profound shift in both regional and global approaches, the prospects for Nagorno-Karabakh remain precariously uncertain.