Germany goes back on earlier statements on the international legal status of Nagorno-Karabakh

Published: 12 October 2020 Author: Stefan Talmon

The more than three-decades-old conflict between Armenia and Azerbaijan over the breakaway region of Nagorno-Karabakh gained renewed international attention when, at the end of September 2020, fierce fighting broke out along the Line of Contact in the Nagorno-Karabakh conflict zone. On 29 September 2020, after speaking with the Armenian Prime Minister and the Azerbaijani President, German Chancellor Angela Merkel urgently called for an immediate ceasefire and a return to the negotiating table. Germany also pushed for the conflict to be discussed under “any other business” in a closed UN Security Council meeting of the same day. During the meeting, the German representative stated: “We believe that conflict resolution in this case must be based on the Helsinki-Principles of non-use of force, territorial integrity and self-determination, and on the Madrid Principles.”

During the regular government press conference on 30 September 2020, the Federal Foreign Office was asked whether Germany considered the territory of Nagorno-Karabakh to be legally a part of Azerbaijan. The spokesperson for the Federal Foreign Office avoided a clear answer to the question, but stated instead that the “conflict over the region of Nagorno-Karabakh can only be solved in negotiations” and that “it is now up to the Minsk Group of the Organization for Security and Co-operation in Europe (OSCE Minsk Group) and the parties to settle the status of Nagorno-Karabakh in negotiations”. Asked why Germany could say that Crimea was a part of Ukraine under international law but could not say that Nagorno-Karabakh was legally part of Azerbaijan, the Cabinet spokesperson interjected and stated that the two topics should be kept apart and that each conflict had to be judged on its own terms, saying:

“With the dissolution of the Soviet Union in 1991, the Ukraine, including Crimea, became the independent Ukrainian State. At that time there was also a referendum in which a majority of the electorate voted against the separation of Crimea. These are completely different conditions. This is a completely different situation from that in Nagorno-Karabakh. That is why the colleague’s answer is absolutely correct.”

During the regular government press conference on 2 October 2020, members of the media revisited the question of the status of Nagorno-Karabakh in international law and asked whether the Federal Government shared the view that Nagorno-Karabakh was part of Azerbaijan. A spokesperson for the Federal Foreign Office, once again, evaded a direct answer to the question but stated:

“I can tell you that since the war over Nagorno-Karabakh between 1992 and 1994, Nagorno-Karabakh, which is largely inhabited by Armenians, as well as seven surrounding provinces of Azerbaijan have been under Armenian control. That is the current state of affairs.

According to the Federal Government, this is an inter-State conflict. The Federal Government advocates a peaceful solution to this conflict and is supporting the relevant international mediation efforts […].”

The spokesperson for the Federal Foreign Office was asked four more times whether the Federal Government considered Nagorno-Karabakh to be in international law a part of Azerbaijan. All the spokesperson was prepared to say, however, was that this was an “inter-State conflict” between Armenia and Azerbaijan, that Germany was trying to find a solution to this conflict and that there were international mediation efforts.

The media, however, kept on insisting on a clear answer to a straightforward question and so the matter of the Federal Government’s position on Nagorno-Karabakh under international law was raised once again at the regular government press conference on 5 October 2020. A spokesperson for the Federal Foreign Office stated:

“With regard to Nagorno-Karabakh’s status under international law […] I have to go back to the conflict as a whole […]. The fact is that this is a conflict that […] has been going on for decades. In the context of the newly escalating fighting, the point is that people are killed every day. That is what is currently moving us to act. […]

I have already stated several times that the conflict is of an inter-State nature, has been going on for decades, and that it is a very complex conflict with many international law and historical aspects playing a role. It is about the former Soviet republics; it is about the resolution of the Security Council. As you know, there are four Security Council resolutions on Nagorno-Karabakh that were passed in 1993. There is the OSCE-Minsk Group, which has made various statements and is trying to mediate.

At the moment our actions are aimed at actually preventing more people from dying in the conflict region. We are trying to open up negotiations between the conflicting parties in order to provide a basis to prevent the conflict from escalating further and to contribute to a solution of the conflict, if possible.”

Members of the media seized on the Security Council resolutions alluded to and put it to the Federal Foreign Office spokesperson that there were three statements confirming that Nagorno-Karabakh was part of Azerbaijan. The spokesperson was asked for the umpteenth time whether the Federal Government endorsed these statements. In response, the spokesperson declared:

“As I said, with regard to the status under international law I have now made several – three – statements. I have also just said that the status question is a very complex international law question which arises in connection with Nagorno-Karabakh and which involves various aspects of international law that have already played a role in 1993 and continue to play a role today. To some extent, these factors were supplemented by other aspects. I can tell you that questions of which State the territory belongs to under international law and the status under international law continue to be the subject of mediation efforts in this inter-State conflict.”

This statement triggered the follow-up question of whether the Germany followed the Security Council in holding that Nagorno-Karabakh was part of Azerbaijan. The spokesperson for the Federal Foreign Office replied:

“I have just explained to you that the four Security Council resolutions of 1993 are part of the efforts we are building on in resolving the conflict. They also form one of the bases for solving this conflict.”

The Federal Government’s reluctance to confirm that, according to international law, Nagorno-Karabakh was a part of Azerbaijan was surprising, considering that as late as July 2018 it had stated in response to parliamentary questions that “the Nagorno-Karabakh region and the seven surrounding provinces, which are under the control of Armenian armed forces, are part of the Republic of Azerbaijan.” German courts also had regularly adopted the view that, “according to international law, the territory of Nagorno-Karabakh belonged to Azerbaijan.”

Of the four Security Council resolutions on the Nagorno-Karabakh conflict mentioned by the Federal Foreign Office spokesperson – resolutions 822, 853, 874 and 884 – three explicitly reaffirmed “the sovereignty and territorial integrity of the Azerbaijani Republic and of all States in the region” and “the inviolability of international borders and the inadmissibility of the use of force for the acquisition of territory”, and also expressly referred to “the Armenians of the Nagorny-Karabakh region of the Azerbaijani Republic.” This latter phrase has been understood as confirming the status of Nagorno-Karabakh as an integral part of Azerbaijan. The spokesperson for the Federal Foreign Office somewhat qualified the importance of these resolutions by referring to them as only “one of the bases for solving this conflict”, thereby implying that there may be other, not necessarily concordant bases. In this connection it is also of interest to note that on 24 September 2019 the State Secretary of the Federal Foreign Office, Andreas Michaelis, explained:

“United Nations Security Council resolutions 822 (30 April 1993), 853 (29 July 1993), 874 (14 October 1993) and 884 (12 November 1993) must be seen are against the background of the continuing armed skirmishes over Nagorno-Karabakh in the spring of 1993. These resolutions condemn the violation of the ceasefire and are a call on the conflicting parties to reach a ceasefire and peaceful solution of the dispute.”

Germany’s reluctance to expressly pronounce on the international legal status of Nagorno-Karabakh at a time of heightened conflict between Azerbaijan and Armenia may be explained by its membership of the OSCE Minsk Group, which is tasked with facilitating negotiations between the conflicting parties in order to achieve a peaceful and comprehensive settlement of the Nagorno-Karabakh conflict. This becomes clear from the reference to the OSCE Minsk Group’s Madrid Principles in German representative’s statement in the Security Council on 29 September 2020.

On 8 November 1993, the members of the Minsk Group issued a Declaration which recorded that “the status of Nagorny Karabakh will be decided through negotiations at the Minsk Conference.” In April 1996, the Co-Chairmen of the Minsk Conference, Finland and Russia, reported to the UN Security Council that the parties had agreed, inter alia, that the “legal status of Nagorny Karabakh shall be elaborated on the basis of a mutually acceptable compromise, and determined at the OSCE Minsk Conference”. What that compromise might look like had been outlined in February 1996 in the Minsk Group’s “Framework for a package solution” which foresaw negotiations on the basis of commitments assumed by the parties regarding “the territorial integrity of Azerbaijan and the broadest possible self-rule for Nagorny Karabakh”. However, the Minsk Conference process was unable to reconcile the views of the conflicting parties on the principles for a settlement, which led the OSCE Chairman-in-Office to declare on 3 December 1996:

“Three principles that should form part of the settlement of the Nagorny Karabakh conflict were recommended by the Co-Chairmen of the Minsk group. These principles are supported by all member States of the Minsk group. They are:

(a) Territorial integrity of the Republic of Armenia and the Azerbaijani Republic;

(b) Legal status of Nagorny Karabakh defined in an agreement based on self-determination, which confers on Nagorny Karabakh the highest degree of self-rule within Azerbaijan; […].”

Over the next eleven years, no progress was made with regard to the settlement of the Nagorno-Karabakh conflict. This led the three OCSE Minsk Group Co-Chair countries – France, Russia and the United States – in November 2007 to present the so-called “Madrid Principles”. These Basic Settlement Principles, which were based on the Helsinki Final Act principles of non-use or threat of force, territorial integrity, and the equal rights and self-determination of peoples, called inter alia for

  • “an interim status for Nagorno-Karabakh providing guarantees for security and self-governance;
  • future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will;
  • the right of all internally displaced persons and refugees to return to their former places of residence”

The phrase “legally binding expression of will” was interpreted by Germany to mean “a referendum”. In September 2020, the Madrid Principles still constituted the legal and political framework for a settlement of the Nagorno-Karabakh conflict within the framework of the Minsk Group process.

Within the Minsk Group process, the status of Nagorno-Karabakh was always to be decided through negotiations between the parties. However, the goalposts of these negotiations were moved over time. Initially, the principle of territorial integrity ruled supreme and any outcome of the negotiations was restricted to Nagorno-Karabakh achieving “the highest degree of self-rule within Azerbaijan”. Under the Madrid Principles, the phrase “within Azerbaijan” was dropped. The principles of equal rights and self-determination of peoples gained greater prominence. The phrase that the final legal status of Nagorno-Karabakh is determined “through a legally binding expression of will” did not preclude the possibility of the future of the territory lying outside Azerbaijan. In fact, if the final legal status of Nagorno-Karabakh were determined through a popular referendum of the (majority ethnic Armenian) inhabitants of the territory, this would most likely lead to either an independent State of Nagorno-Karabakh or the accession of the territory to Armenia (even if the former Azeri inhabitants were allowed to return and take part in the referendum). Such an outcome would be unacceptable to Azerbaijan. It is for that reason that the Azerbaijani Government tried to change the settlement principles in recent years. The rejection of these attempts by the Minsk Group Co-Chair countries may have ultimately contributed to the outbreak of hostilities in September 2020.

Against the background that Germany is a member of the Minsk Group and supports the Madrid Principles, it is politically comprehensible that it tried to avoid any statement on the status of Nagorno-Karabakh, especially during ongoing hostilities. However, as long as there is no agreement between Armenia and Azerbaijan, the territory of Nagorno-Karabakh continues, in terms of international law, to be an integral part of Azerbaijan. By declining to say so, the Federal Government ultimately undermines the force of international law.

Category: Territorial sovereignty

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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