The Behavior and Positions of Armenia and Azerbaijan

After launching an incursion into Armenia’s Syunik region starting on May 12, and almost entirely seizing Black Lake (Sev Lich), the Azerbaijani Armed Forces also carried out aggressive operations in the Gegharkunik region in the following weeks. In July, they extended these operations to the important highway juncture village of Yeraskh in Ararat region, which is not even a new line of contact formed as a result of the 2020 Artsakh War, and hasn’t changed since the Soviet times. A new escalation occurred in mid-August, with the most intense escalation happening on November 16, once again in Syunik, this time not far from the town of Sisian. These new tensions were accompanied by new cases of the capture and killing of Armenian servicemen by Azerbaijan.

In addition to the military operations, Azerbaijan also continued its creeping annexation, in particular by closing the Goris-Vorotan-Shurnukh-Karmrakar section of the Yerevan-Meghri-Iran interstate (M2) highway for two days on August 25 — prohibiting traffic and movement in that area; setting up a police checkpoint on the road on September 12 to inspect Iranian trucks and collect customs duties and tolls, as well as arresting two Iranian drivers on September 15.

From November 10 to 15, Azerbaijan took full control of the 21-km section of the Goris-Kapan road, which it had partial control over since mid-December 2020. Two days later, they also took full control over the Kapan-Chakaten road, establishing a customs checkpoint along those two roads. As a result, the residents of six villages found themselves in a difficult situation. Although the Armenian government had largely completed the construction of the alternate Tatev-Kapan road and is building four additional roads in the area, the livelihoods of those villagers are linked to Kapan and not to Meghri through which the Tatev-Kapan road passes. Now, getting to Kapan takes five times longer, causing a number of difficulties in human rights and human security.

In the months following Armenian Prime Minister Nikol Pashinyan’s announcement in May about Armenia’s willingness to cooperate on a delimitation and demarcation (D&D) process,  there was a period of uncertainty on the issue. Once in a while, the Armenian authorities, in particular the Prime Minister and the Secretary of the Security Council Armen Grigoryan, would announce Armenia’s readiness for D&D. At the same time, the Armenian side stated that, in order to start this process, Azerbaijani troops had to leave the sovereign territory of Armenia, which they have been occupying since May 12, an area of 40-45 square kilometers. This figure does not include parts of the villages of Vorotan and Shurnukh in Syunik region, divided in December 2020 and January 2021, nor the sections of the Goris-Kapan and Kapan-Chakaten roads handed to Azerbaijan in November 2020. According to Soviet maps from the 1980s, these sections were partially transferred to the Azerbaijani SSR, which, however, does not legitimize the situation surrounding them.

Since November 2020, Azerbaijan has been making inflammatory statements at the presidential level. In particular, it was making territorial claims to different regions of Armenia, especially Syunik, which it is calling Western Zangezur, but also other regions, and even Yerevan. Azerbaijan is demanding that Armenia recognize the territorial integrity of Azerbaijan, obviously referring to the recognition of Nagorno-Karabakh as part of Azerbaijan.

According to the Armenian Foreign Ministry’s response to Azerbaijani President's interview with state-controlled television AzTV on July 23, Aliyev essentially acknowledges the fact that Azerbaijani troops are in the territory of the Republic of Armenia. As an excuse, he resorts to a historically distorted justification, claiming that “Zangezur is the land of our ancestors.” Aliyev is trying to make the use of force an instrument of regional policy, as well as trying to erase Nagorno-Karabakh as a unit from the regional map. The Armenian Ministry of Foreign Affairs called it an attempt to remove the Nagorno-Karabakh conflict from the international agenda by means of violating Armenia's territorial integrity. Statements containing territorial claims and threats of military force became more and more frequent in the official speeches, interviews and tweets of the Azerbaijani president.

On July 15, at a government session, Pashinyan stated that, although Azerbaijan was trying to depict Armenia as obstructing the D&D process, in reality, Azerbaijan was opposed to the process and was putting forward false maps. This statement surprised the Armenian public, which has a generally negative stance toward D&D an considered it as something Azerbaijan was forcing on Armenia.

Finally, before the one-year anniversary of the November 9 trilateral ceasefire statement, opposition circles in Armenia began to circulate rumors about Pashinyan's intention to recognize Azerbaijan's territorial integrity and make new territorial concessions. It is evident now that Pashinyan refused to take part in a tripartite meeting during those controversial days, which was followed by Azerbaijan obtaining full control of the Goris-Kapan and Kapan-Chakaten roads and then instigating the November 16 escalation. These events were followed by Pashinyan's November 18 statement that he had received a third proposal from the Russian Federation on D&D, which was acceptable to Armenia, and instructed his teammate and the newly-appointed Minister of Defense Suren Papikyan to begin preparations toward that end. This announcement raised a new wave of public concern, giving the impression that a hasty demarcation was being planned based on less favorable Soviet maps and without proper delimitation, even if Pashinyan and Grigoryan were referring to maps from the 1920s and 1930s, as legally valid maps from the Soviet period. These concerns were partially allayed when, at the end of a trilateral meeting in Sochi on November 26, 2021, Russia, Armenia and Azerbaijan announced the launch of a D&D process between Armenia and Azerbaijan, with Russia having a consultative role. A more working-level meeting is now expected in Moscow as the next step.

 

Positions of Civil Society and Community of Experts

Since May 20, 2021, Armenia’s civil society and expert community have issued a number of statements  and analyses on the D&D process between Armenia and Azerbaijan, which include a comprehensive risk assessment and recommendations on the choice of a format in accordance with international norms. In statements issued on July 29 and November 16, they also called on the Armenian Government to appeal to the UN Security Council on grounds of a threat to international peace and security due to Azerbaijan’s aggression and violation of Armenia's territorial integrity, as well as to the OSCE to send a monitoring mission to Armenia and conduct long-term impartial and objective monitoring of the situation in the border areas; they suggested actively promoting, at all appropriate international bodies, the need to establish a security (non-militarized zone) around Armenia and Artsakh to ensure the security of Armenia's borders and border population, until the launch and successful completion of the D&D process in accordance with international law and with the involvement of international organizations such as, for example, the OSCE.

As for Azerbaijan’s civil society and expert community, it seems that, in an undemocratic environment, there is no obvious dissent. Think tanks associated with state institutions support the Azerbaijani President's territorial claims to Armenia and threats of a new war since December 2020. Only a few Azerbaijani activists living in Europe, and still being persecuted by the Azerbaijani authorities, express dissent on these issues.

 

The Reaction of the International Community

Since May 19, the Russian Federation, through Foreign Minister Sergey Lavrov and spokesperson Maria Zakharova, has announced its willingness to assist in the D&D process. During a discussion at the Valdai Club on October 22, Russian President Vladimir Putin stated that the demarcation of the Armenian-Azerbaijani border is impossible without Russia's participation, as the Soviet maps are kept in the General Staff Headquarters of the Russian Army. He added that “perhaps, we do not need anyone else but the two sides and Russia.” Putin also stated, “We are also in favour of finding a multilateral format, such as, say, stepping up the Minsk Group’s activities.” On November 6, the Russian Foreign Ministry issued an unusual statement, stating that Russia did not intend to monopolize communications with Armenia and Azerbaijan, and that Moscow-mediated trilateral statements were not binding on the parties, citing the sentiments of those expressing such concerns. Finally, following the signing of a new tripartite declaration on November 26, 2021, Russian President Putin announced that mechanisms of D&D would be set up between the two countries before the end of the year.

The CSTO in effect refused to provide military assistance to Armenia in the context of the advancement of Azerbaijan’s armed forces in the border regions of Armenia, and even in the context of obvious hostilities by Azerbaijan. CSTO officials pointed out the lack of a border, calling it a line of contact and confrontation, and stressed the need to resolve border security issues through peaceful, political-diplomatic means.

In their statements issued from May 27 onward, the United States  and France began calling on Armenia and Azerbaijan to carry out D&D. On May 28, the OSCE Minsk Group Co-Chairs declared the use of force or threats to use force to resolve border disputes inadmissible, and called on both sides to withdraw their troops, defuse the situation and start negotiations on D&D. They also expressed their willingness to assist in that process.

On July 17, 2021, Charles Michel, who was in Yerevan as part of a regional visit, offered EU assistance in the D&D process. On August 16, EU Special Representative for the South Caucasus and the Crisis in Georgia Toivo Klaar tweeted concern over tensions on the Armenian-Azerbaijani border resulting in loss of life, and called on the parties to de-escalate tensions and to engage in D&D.

It is important to note that, in the practice of international relations and law, D&D between neighboring countries is a desirable but not mandatory condition. Therefore, it cannot be imposed, but only encouraged. The absence of D&D between Armenia and Azerbaijan does not justify Azerbaijan's aggressive military actions, nor its violation of the line of contact with Armenia, nor its violation of the Armenian-Azerbaijani border according to even the most unfavorable Soviet maps. It is well-known that there are many countries on different continents that have not undergone complete D&D, including Russia and Azerbaijan, Azerbaijan and Georgia, Armenia and Georgia. It is also the case in conflict zones, such as in the Balkans between Serbia and Kosovo. Therefore, the international community’s calls for D&D to Armenia and Azerbaijan cannot be binding, but are conditioned by the need to avoid new military escalation between the two countries. One may get the impression that the expectation of military assistance to Armenia in accordance with their treaty obligations has become a burden for Russia and the CSTO, since they also have partnership relations with Azerbaijan. It is clear that the international community, including the UN, the OSCE and the EU, is not ready to take more decisive action to uphold international norms, such as adopting a UN Security Council resolution or imposing sanctions on the instigator. The UN Secretary-General welcomed the trilateral meeting in Sochi and the agreements reached.

 

Suggestions on the Phases and Formats of the Upcoming Delimitation and Demarcation Process

The “surprise” of the statement signed on November 26 was that the process of D&D is envisaged in a bilateral format between Armenia and Azerbaijan, with Russia having a purely consultative role, contrary to the common assumption among Armenian society of a trilateral format.

This is a sensible step by Russia, since it is difficult to imagine the arbitral role of a third state in clarifying the borders between two countries in the 21st century. An advisory role in this context is likely to mean mediation without a formal voice in decision-making, which will also reduce Russia's responsibility in this difficult process in the eyes of the international community.

At the same time, it is difficult to imagine two countries that have no diplomatic relations, mired in an unresolved conflict and mutual distrust, negotiating on a complex issue such as D&D without a decisive mediation by an international organization initiating and providing a normative framework. Therefore, in order to avoid a deadlock, the following formats and phases of the process should be considered.

Phase 1: Negotiations between Armenia and Azerbaijan, with the consultative role and mediation of Russia on the basis of the maps kept in the archives of the Russian Federation and their legal basis, which will facilitate agreement on non-controversial or less controversial issues.

Phase 2: More controversial issues on which agreement will not be reached in the first phase should be discussed within the OSCE, in the subgroup set up under the Minsk Group, or in a special commission or working group set up specifically for that purpose. The auspices of the EU can also be considered, taking into account the offer of support by Charles Michel and the upcoming meeting in Brussels. Moreover, assistance from the OSCE or the EU should not be limited to providing training and advice (which would be highly desirable during Phase 1) but should provide organizational auspices for negotiations and a framework of normative rules.

Phase 3: The most contentious issues should be referred to the UN International Court of Justice (ICJ) for international arbitration. The Court has such experience, such as the case in relation to the territorial dispute between Ethiopia and Eritrea. Since neither Armenia nor Azerbaijan have accepted the jurisdiction of the ICJ without reservations, in order to present a claim, it is necessary to sign a Memorandum of Understanding between the two countries. On November 25, 2021, during a meeting with the special representative of the OSCE Chairperson-in-Office for the South Caucasus Annika Söder, Azerbaijani Foreign Affairs Minister Jeyhun Bayramov expressed willingness to carry out D&D according to the principles of international law.

 

A Proposal on the Principles of the Delimitation and Demarcation Process

It is difficult to imagine a normal negotiation process between two countries, which had yet another military escalation just last month, especially when the armed forces of one are in the sovereign territory of the other, and one side has already resorted to the tactics of military blackmail to force their will and extort concessions. To avoid deteriorating the situation, in contradiction to international law and order, it is desirable to set the following principles from the very beginning of the negotiations.

a) During negotiations, the use of force—be it through military force or political coercion—must be ruled out. Azerbaijan must withdraw its forces from the territories occupied in recent months.

b) The issue of Artsakh must be considered separately from the issue of Azerbaijan's territorial integrity. It should be established that the Nagorno-Karabakh conflict will not be resolved through this process and this format, but will continue to be negotiated within the framework of the OSCE Minsk Group, and a comprehensive and long-term solution must be found for the conflict.

c) The process should not predetermine the results of controversial issues, but each issue should be negotiated. The process should not be artificially accelerated, bearing in mind that even between countries in partnership relations, the process of D&D can take years; obviously, conflicts make it even more difficult to reach agreements.

d) Maps, regardless of their dates, should not be the only basis for decision-making, especially since, beginning from the early 20th century, there have been numerous controversial maps, the legal bases of which may or may not be justified. The same refers to various controversial agreements and declarations over the ownership of territories and the issue of the legal succession of former republics. For example, the legal grounds and justifications for transferring various territories from Soviet Armenia to Soviet Azerbaijan starting the late 1920s to the years prior to the collapse of the Soviet Union are unclear, including the transfer of most of the Goris-Kapan road built and financed from the Soviet Armenian budget in 1964 to Soviet Azerbaijan on a later date. As Pashinyan mentioned in another context, the legal bases of such transfers are uncertain and subject to clarification, as donations of land between different republics was common practice during Soviet times. It is not unlikely that, during those years, the Azerbaijani leadership influenced the decision-making process of the central government of the Soviet Union through bribes.

e) According to the OSCE Handbook on Delimitation and Demarcation, norms of international law and national legislation are equally important. In this case, they include the existence or absence of legal grounds for the decisions made by the USSR, whether  justified or not, and the principles of human rights and security in line with the spirit of 2021, security, geographical, economic factors, such as, for example, the use of natural resources. It should be noted that the USSR did not join the Universal Declaration of Human Rights adopted in 1948, and internal administrative borders in the USSR were determined without clear criteria; this has been acknowledged by Russian President Vladimir Putin.

f) Armenia, as a state, cannot be deprived of the prospect of viability due to unfavorable delimitation in terms of security and economy. Armenia must have sovereignty over the highways and roads passing through its territory, and control over the natural resources in its territory, such as water resources. The OSCE could also share its experience in water diplomacy regarding the matter.

g) Different parts of Armenia cannot be separated from each other. The formation of enclaves should be ruled out; their existence contradicts the modern concepts of international order.

h) Armenia's borders with Iran and Georgia must remain intact, given that the other two neighboring countries, Azerbaijan and Turkey, have kept Armenia under blockade since Armenia's independence.

i) Until the completion of D&D, deployment of international observers representing Russia or the OSCE Minsk Group Co-Chairs along the line of contact should be considered—to avoid military escalation and to determine the instigator. This was proposed by Prime Minister Pashinyan in May 2021.

j) As per the suggestion of the Human Rights Ombudsman of Armenia Arman Tatoyan, consider the creation of a security zone to avoid the deployment of armed forces in the immediate vicinity of civilian settlements and disrupting the peaceful and secure life of the civilian population.

k) Finally, as mentioned above, should no agreement be reached on disputed issues in the trilateral format, they should be pursued under the auspices of an international organization, and should this also fail, they should be referred to the UN International Court of Justice to resolve the most difficult issues through international arbitration. As mentioned by the Registrar of the International Court of Justice, Philippe Gauthier, states should approach the Court to settle disputes, rather than resorting to armed conflict. Attempts to normalize the use of force and threats should be ruled out, as it “throws down the gauntlet” to the basic principles of international law, including the UN Charter, and thus on the modern international order.