American Professor: Nagorno-Karabakh is a case of remedial secession

Interview by Nvard Chalikyan

Panorama.am interview with Dr. William Slomanson, Professor of Law at Thomas Jefferson School of Law and visiting Professor at Pristina University. Dr. Slomanson argues that Nagorno-Karabakh qualifies as a case of remedial secession under the International Law.

– Dr. Slomanson, in one of your articles you argue that the cases of Ossetia, Abkhazia and Kosovo do not qualify as remedial secession, while in your article “Nagorno-Karabakh: An Alternative Legal Approach To Its Quest For Legitimacy” you argue that Nagorno-Karabakh presents such a case. How exactly does Nagorno-Karabakh qualify as a case of remedial secession and according to you what are the strongest points in NK’s argument of remedial secession?

– The internationally accepted sources of International Law include – treaties, state practice and judicial decisions (as embedded in ICJ Statute, Article 38d). There is no treaty on secession, and there never will be, as that would be a political suicide for states. As for state practice, it has characterized three of the last four unilateral secessions as being unique (Abkhazia, South Ossetia and Kosovo—with no word yet on Crimea). There have otherwise been numerous conflicting state approaches to the status of Nagorno-Karabakh. The remaining recognized source on secession in the International Law is thus judicial decisions – those issued by national/international courts.

In this regard the undisputed lead case is the Canadian Supreme Court Quebec Secession case, with its three prongs. According to the first prong there must be a “People,” for which Nagorno-Karabakh Armenians within Azerbaijan no doubt qualify. Second, there must be “gross human rights violations” against this people – these violations were in place starting in 1915, when NK emptied out most of its Armenian population because of Turkish regional policies. These policies continued through and including 1989 (the Armenian population declined considerably as a result of gross human rights violations over many decades). In 1989 the US Senate-House passed Resolution 178 that expressed a concern on the ongoing violence in Nagorno-Karabakh – “seeking (2) Soviet re-establishment of economic and supply routes”; (4) “urge[s] … investigation of the violence against the people of Nagorno-Karabakh;” and (5) “express[es] the serious concern of the American people about the ongoing violence … interfer[ing] with international relief efforts.”

The Quebec decision’s third prong is “no alternative but secession”. Given the fact that the status of Nagorno-Karabakh was altered for a number of times – in 1919 (when the United Kingdom forced NK authorities to conclude an interim agreement with Azerbaijan), in 1921 (when Moscow annexed NK to the Azerbaijan SSR), in 1988 (by war) and in 1991 (by the declaration of independence) as well as taking into account the 2004 Minsk Group statement that NK independence is not possible under the USSR statute of 03 April 1990 (all of which are addressed in my 2012 article) I do not see how one could logically suggest that there is an alternative to secession.

– If Nagorno-Karabakh presents a strong case for remedial secession what implications can this have, given that the right to remedial secession is not a hard law?

– Given the non-existence of a secession treaty, multiple changes in sovereign status of Nagorno-Karabakh as well as national/international concerns (such as those expressed in the above US Congressional position), the above-mentioned recognized sources of International Law leave only one logical source for supporting Nagorno-Karabakh’s bid for legitimacy – a national (Canadian) Supreme Court decision on a matter of International Law. While not a primary source, such as State practice, it is a recognized source of International Law. If by “soft” law you mean enforceability, the arguable lack thereof is a discrete political point, while the Quebec elements are widely acclaimed and thus are more akin to hard law than soft law.

– Azerbaijan has officially adopted a stance that unless the conflict is resolved by peaceful means Azerbaijan has the “right” to take back Nagorno-Karabakh by force, appealing to the right of self-defense under Article 51 of the UN Charter and referring to alleged “occupation” of its territory. Is this stance of Azerbaijan compatible with international law or not (considering its international obligations and the 1994 ceasefire agreement)?

– Citing the UN Charter Article 51 self-defense by Azerbaijan is illogical, given the comparative size of both the Azeri land mass and military strength. NK, for example, does not have the Israeli drones that the Azeris use for patrolling the border. As 2006 Russian-American Dartmouth Conference report indicates, no single document (i.e., the 1994 ceasefire agreement) will supplant the need for all necessary parties to come to the table to hammer out a peace accord. One result of that not happening is the Azeri threat to use its military force to shoot down any plane/helicopter attempting to make the trip between the Yerevan and NK airports. So it would be NK, not Azerbaijan, that would end up with a decent Art 51 defense argument in this context.

Interview by Nvard Chalikyan