The international legal principle of self-determination has been integral to the arguments espoused by the indigenous Armenian population of Nagorno-Karabakh in their struggle for sovereignty and statehood. But this endeavor has not been successful. The egregious violation of human rights and the systemic policy of ethnically cleansing the Armenian population during the 2020 Artsakh War provides a robust body of evidence and sufficient empirical data to re-address and re-conceptualize this issue. The legal and political configurations must now be rearticulated in the international struggle for Nagorno-Karabakh’s sovereignty. The unidimensional reliance on international legal instruments have been insufficient in satisficing the existential issues that the Armenian population of Nagorno-Karabakh faces. The immediacy of the situation requires a recalibration of the unidimensional dependence on international instruments and the initiation of a hybridity model that incorporates strategic political components: the geopoliticization and securitization of the issue, and the interjection of international institutions into the process. More specifically, the hybridity model reconfigures Nagorno-Karabakh’s approach into a multidimensional framework, where international legal instruments are reinforced, supplemented, and ultimately guided by political and international institutional manoeuvring. This necessitates a shift in the doctrinal policies of Armenia, and one that transitions from the limited model of “remedial secession” to a more refined and substantial concept, “remedial sovereignty.”
Armenia’s policy positions and its utilization of international legal doctrines have primarily failed in the last two decades for two main areas: the conflicting international legal principles that delimit Nagorno-Karabakh’s claims, and the inability of Armenia's diplomatic corps to sufficiently and convincingly advance a legal grand strategy. The lack of adequate research, knowledge-accumulation, and articulation of legal principles, coupled with the absence of a conceptual doctrine that provides a grand strategy for the recognition of Nagorno-Karabakh’s sovereignty, remain the fundamental shortcomings of the Armenian side. The concept of remedial secession, for example, was discussed extensively during and after the war, yet the lack of properly developing this legal doctrine and advancing it at the international level stunted the process. This policy paper undertakes a reconfiguration of Armenia’s doctrinal policy on Nagorno-Karabakh, thus formulating the empirical and legal basis to develop a grand strategy on the concept of remedial sovereignty. Utilizing Kosovo’s case study as an applicable model, three overarching conclusions will be displayed: 1) Kosovo was able to attain its independence not simply through remedial secession, but primarily through the concept of “earned sovereignty,” a precept that the Armenian side has failed to cogently articulate; 2) the conditions, circumstances, and developments that triggered the pertinent international legal instruments for Kosovo’s earned sovereignty remain commensurate to the conditions, circumstances and developments present for Nagorno-Karabakh; and 3) Kosovo’s successful secession from Serbia is more consistently qualified as remedial sovereignty than remedial secession, thus providing the Armenians of Nagorno-Karabakh a framework to both bypass the sui generis postulate and thus apply the hybridity model. To elaborate, the legal principle of sui generis stipulates that the given case is unique, exists in a class of its own, and by virtue of its special circumstance, does not constitute a precedent for other cases. By its strict legal interpretation, and confined specifically to its narrow application as an international legal instrument for Kosovo, remedial secession, based on stipulating sui generis, cannot be applied to any other case. This stipulatory premise, however, assumes the uniqueness of Kosovo’s case, not the uniqueness of the legal doctrine, for a legal doctrine cannot be unique in of itself, for it will remain self-negating if it lacks applicability. In this context, remedial secession, as applied to Kosovo, has been qualified as sui generis, but earned sovereignty, and the circumstances that gave birth to Kosovo’s independence as a sovereign state, have no applicability to sui generis. For this reason, the utilization of remedial sovereignty, as both a legal and political process, including, but not limited to, the standards of qualification utilized to establish Kosovo’s independence, remains commensurate with the circumstances, conditions, and developments specific to Nagorno-Karabakh.
Secession as a Legal Neutral Doctrine
Secession, as a legal doctrine, is qualified as “neither legal nor illegal in international law, but a legally neutral act the consequences of which are regulated internationally.” The stipulation here denotes that secession entails conceptual hybridity: it has both legal and political elements, and it is the political that determines the consequences of secession and the recognition of statehood. In this context, states that supported and recognized Kosovo’s independence qualified their position as being politically and legally justified for the following reasons: systemic human rights violations by the Milosevic regime, ethnic cleansing and existential threat to the indigineous Kosovar Albanians, Kosovo’s capacity for statehood, the exhaustion of negotiations, and Kosovo’s commitment to respecting human rights. All of the factors utilized to justify Kosovo’s secession from Serbia remain consistent, and are at times superseded, by the factors facing the Armenian people of Nagorno-Karabakh. Consequently, like Kosovo, the situation of Nagorno-Karabakh is unique and special to the circumstances at hand, and considering the extensive documentation of Azerbaijan’s human rights violations against both its own population and the Armenians of Nagorno-Karabakh during the war, Baku’s systemic policy of ethnic cleansing, Nagorno-Karabakh’s capacity for institution-building and statehood, and the exhaustion of negotiations, most concretely reified by Azerbaijan’s declaration of war, the political and legal standards that qualified Kosovo’s independence also apply to Nagorno-Karabakh. In this context, the basis upon which Serbia abdicated its right to rule over the population of Kosovo, the same basis also concretely applies to the abdication of Azerbaijan’s right to rule over the Armenian population of Nagorno-Karabakh. The legal argument being posited here is straightforward: Kosovo is not being used as a precedent for Nagorno-Karabakh, but rather, Nagorno-Karabakh is also a sui generis case, and the same factors that qualify a people for protection from an existential threat remain inherent to the claims of the Nagorno-Karabakh people. Remedy for the people of Kosovo was not simply secession, but rather earned sovereignty. The remedy for the people of Nagorno-Karabakh also remains remedial sovereignty.
The right to self-determination is inherently tied and qualified by the concept of secession. Secession, as a political and geographic phenomenon, stipulates two sets of prerequisites: 1) an instance of political disintegration where one political group (defined in broad range of ways, i.e., ethnic, linguistic, cultural, etc.) unilaterally withdraws from a disintegrated or disintegrating system of governance and thus territorially and politically separates itself from the jurisdictional authority of the disintegrated system and establishes a jurisdictional center of its own; and 2) an instance of withdrawing, politically and territorially, from the central political authority of a disintegrating or disintegrated system, where such unilateral withdrawal entails a rigid departure from the institutions and authority of the disintegrated system. These two stipulatory prerequisites are crucial in consolidating the process of self-determination, which is reified by state and institution-building of the seceded entity. In the cases of both Kosovo and Nagorno-Karabakh, both prerequisites are met, with the latter displaying a longer period of institution-building, democratization, and self-administration.
Conceptualy, there are two general theories of secession: devolutionary secession and recursive secession. Devolutionary secession is the case where implicit consent, by the disintegrated system, is given to the seceding or seceded political unit, resulting in the formation of an independent state. Recursive secession is the case where consent, by the disintegrated system, is not given to the political unit that has secured secession. Instances of earned sovereignty remain specific to recursive secession, as remains the case with both Kosovo and Nagorno-Karabakh.
The process of secession, at the macro level, is defined by two main variables: 1) the basis upon which secession is sought, and this primarily entails the legitimization of secession as a form of conflict resolution to ongoing violence inflicted by a state against a particular people; and 2) the consolidation of secession through state and institution-building, with the de facto seceded political unit exercising political and jurisdictional authority. Secession, in this context, is not a territorial claim; it is a political claim to secure autonomy as the only solution to the problem of security. Hence the utilization of the term “remedy.” Territorial rights, in this context, remain a secondary and natural consequence of secession. More clearly, territorial rights, or territorial integrity, is demoted as a second tier of priority in the face of the security dilemma faced by the seceding political unit. In the case of legitimate secession, territorial integrity does not usurp the rights of the disenfranchised group: “If, as in the case of legitimate secession, persons are denied basic liberties because their political groups do not have access to territorial rights, then there is a reason for limiting the territorial rights of existing states in order for the disenfranchised group to claim territorial rights.”
The Legal Doctrine of Remedial Secession
The doctrine of remedial secession, which stems from inverted interpretations of the “safeguard clause” of Principle V of the UN Charter, is a qualified right to “unilateral secession.” This qualification is inherent to circumstances in which a state does not conduct itself in compliance with the principle of equal rights and in which particular populations are not protected by the safeguard clause. In such “exceptional circumstances,” under the principle of self-determination, the given state may be dismembered or imparied, totally or in part, “its territorial integrity or political unity.” In this context, while remedial secession is not a legal entitlement, it does confer political and normative legitimacy upon oppressed secessionist groups.” As such, remedial secession is a process where according to the varying degrees of oppression inflicted upon a particular people by its governing state, international law may recognize a continuum of remedies that range from protection of individual rights to secession as the ultimate remedy.
Remedial secession does not, however, apply to all claims or forms of secessionist movements. For example, a secessionist movement based on the demand for self-governance, nationalist sentiments, or enhancing of common wellbeing does not qualify as a basis for remedial secession. (i.e. Quebec or Catalonia). In such cases, secession is not driven or defined by a security dilemma, the rights and liberties of an ethnic or particular people are not threatened or violated, the political unit seeking secession is not withdrawing from a disintegrated or disintegrating system, and as such, the threshold for conflict resolution does not exist. Meaning, the remedy for such problems is not and cannot be secession.
Remedial secession, therefore, is conditional. This is why it is also characterized as just cause theory. Meaning, specific criteria and thresholds must meet specific conditions. These conditions, in general terms, stipulate, but are not limited, to the following: grave violations of human rights, systemic injustice, threats of ethnic cleansing (or instances of ethnic cleansing), violations of international norms, and humanitarian crisis. Remedial secession, in these exceptional circumstances, is applicable and legitimizes cases of secession in which a remedy is required to address the security threat faced by a particular people.
Considering the fact that remedial secession is conditional and requires exceptional circumstances, it is also qualified as a last resort. To this end, previous mechanisms of conflict resolution, or protection of oppressed people, must be considered before secession is qualified as the final remedy. An example of such a principle is “internal self-determination,” in which the problem of secession is alleviated by providing a people “self-determination” within the governing state. Until the 2020 War, this is precisely what Azerbaijan was offering to the Armenian population of Nagorno-Karabakh. The precept of internal self-determination, however, becomes negated when the conditions, as stipulated under remedial secession, are met: the host state is a dictatorship that meets all the set violations envisioned by remedial secession theory. Since internal self-determination does not meet the threshold of security for the political unit seeking secession, external self-determination becomes the acceptable alternative.
Consequently, remedial secession theory provides two general qualifiers as to what legitimates “unilateral secession”: 1) threatening the lives, security, and rights of ethnic population seeking secession; and 2) depriving (or attempting to deprive) the ethnic population seeking secession from economic and political rights. Contextually, secession from authoritarian systems, which have exhibited behaviors of systemic persecution and oppression, coincide with conditions for remedial secession. In this context, territorial integrity, or claims of sovereignty by the oppressor state, do not constitute nor qualify as sufficient grounds to supersede the immediate humanitarian crisis or the necessity for a remedy suffered by a particular group. Thus, while remedial secession theory accepts the right of sovereignty, or territorial integrity, of the given state, the rights of the state, however, are not absolute. If the state does not comply with international norms and if the state meets the conditions which legitimate “unilateral secession” by virtue of creating the conditions where which the threshold for remedial secession is met, the given state loses its right of sovereignty as a superseding principle against the secessionist claims of a people to whom remedial secession applies.
Overarchingly, remedial secession, as noted, is a last resort and specific to exceptional circumstances, and as such, it only becomes tenable when all other tools for conflict resolution have been exhausted. In instances where the host state resorts to violence, or acts of war, against the seceding ethnic group, this qualifies as the last resort principle being met. In the case of Nagorno-Karabakh, this criteria was clearly met by Azerbaijan’s initiation of war against the Armenian population of Nagorno-Karabakh in 2020, as the war was precisely designed as an alternative to what Baku considered the “exhaustion of negotiations.”
Schematically, the rationale for seeking remedial secession by the Armenian population of Nagorno-Karabakh remains specific to self-determination and the need for protection from the authoritarian regime in Azerbaijan. To this end, Nagorno-Karabakh’s posture remains detached and separate from the Republic of Armenia, in that the latter makes no claims over the former, nor does the latter seek to absorb or include the former into its territory. In this context, the Republic of Armenia supports the rights of the Armenians of Nagorno-Karabakh to attain remedial secession and phased sovereignty, but the Republic of Armenia makes no claims on Nagorno-Karabakh.
In qualifying the position of Nagorno-Karabakh, it is crucial to note that the Armenian population of Nagorno-Karabakh is not arguing for the right of secession, but rather, under lex lata (established law), it is arguing for the right of self-determination. More specifically, secession, in of itself, is not the issue, for Nagorno-Karabakh is not seceding from Azerbaijan, since Nagorno-Karabakh already seceded from Azerbaijan after the cessation of hostilities in 1994 and has engaged in state and institution-building since. As such, recursive secession has been consolidated for over 25 years. It is for this reason that Azerbaijan is thus utilizing force and engaging in systemic acts of violence. Its denial of the right to self-determination of the Armenian people of Nagorno-Karabakh is defined by voiding or ignoring the developments that brought about recursive secession. Azerbaijan remains adamant that they never consented, and as such, there was never devolutionary secession. However, since Azerbaijan’s acts of violence meet the internationally-accepted threshold for remedial secession, the Republic of Armenia, on behalf of the Armenian people of Nagorno-Karabakh, is calling for remedial secession as a remedy to the ethnic cleansing initiated by Azerbaijan and as a remedy to securing the right of self-determination by the ethnic Armenian population of Nagorno-Karabakh.
Remedial secession, then, is sought as the solution, the “remedy,” to a) the security threat against an indigenous ethnic population; and b) the right to self-determination. Considering Azerbaijan’s endeavor of dealing with the Nagorno-Karabakh issue through violence, remedial secession after the 2020 War, in fact, qualifies as a “last resort” as stipulated by international law. In this context, the Armenians of Nagorno-Karabakh subscribe to the international legal norm that remedial secession is the “most radical form of external self-determination,” and demonstrating the gravity of the situation, as well as demonstrating that all the conditions and thresholds have been met by the actions of Azerbaijan, this particular people appeals to remedial secession as a last resort.
The Limitations of Remedial Secession
As addressed. because “secession is neither legal nor illegal in international law, but a legally natural act the consequences of which are regulated internationally,” the concept of remedial secession may present problems or limitations with respect to the process of recognition by international actors. The more methodical approach is to inherently concentrate on the “remedial” over the “secessional,” because the fact of the matter remains that opposing actors will primarily concentrate on the dubious legal basis of secessionism. In this context, from the lens of strategizing the approach, Nagorno-Karabakh faces a problem with the concept of remedial secession: the concept does not have enough international legal standing, at this stage, to acquire recognition from international actors.
To reassert the point that was discussed earlier, remedial secession, in the technical legal discourse, is primarily viewed as a “qualified right to unilateral secession.” And yes, while its legal basis stems from the established norm of right of self-determination, the concept of unilateral secession struggles with the problem of recognition. Meaning, remedial secession may possibly remedy the attempts of Azerbaijan to oppress and subjugate the Armenian population of Nagorno-Karabakh, but it will likely not lead to international recognition of Nagorno-Karabakh as a sovereign state. We are thus faced with the elephant in the room: the concept of remedial secession is so narrow and very limited in use that it lacks political consensus. More succinctly, remedial secession is not a legal entitlement. However, if there is consensus, it does confer political and normative legitimacy on oppressed secessionist groups and may encourage states to recognize their independence. To this end, with remedial secession, Nagorno-Karabakh is on dubious international legal grounds, and this is why building political consensus and utilizing the hybridity model remains so important in securing the existential safety of the Nagorno-Karabakh population. For this reason, Nagorno-Karabakh must “convince” the international community on the idea of remedial secession, as opposed to demanding it as something that is based on international law. Overarchingly, Nagorno-Karabakh can accept the fact that remedial secession is a strong starting point, has strong normative and moral arguments, and has an important basis in international law. However, it needs to concede that this principle, in of itself, may not be enough: it cannot pin its hopes and security on this one concept.
Developing a Solution: Earned Sovereignty as Remedial Sovereignty
The concept of earned sovereignty was cogently developed as a mechanism of conflict resolution for Kosovo, articulating the point that Kosovars “were entitled to heightened sovereignty because of past abuses by the Serbian Regime.” This entitlement to sovereignty, however, was predicated on the fact that full sovereignty will be granted only after an interim period where Kosovo demonstrated its “commitment to democratic self-government, to the protection of human rights, and the promotion of regional security.” As such, the concept of earned sovereignty was used in tandem with the concept of remedial secession in Kosovo. Simply put, remedial secession was one component of it, but Kosovo did not receive much international recognition simply because of the concept of remedial secession; its recognition was methodically attained through earned sovereignty.
Earned sovereignty, also referred to as phased recognition, is a concept where the international community does not immediately recognize the seceding entity, but begins a process of doing so. There are various approaches to earned sovereignty or phased recognition: provisional statehood, conditional independence, supervised independence, and full independence. But the concept, in essence, is defined by three core elements: 1) shared sovereignty (exercising sovereign authority and functions over a defined territory by a sub-state entity); 2) institution building (establishment of political and economic infrastructures and the strengthening of self-governance); and 3) determination of final status (conducted under international mediation). Considering the core elements, Nagorno-Karabakh, in essence, has made extensive inroads in establishing “earned sovereignty.” It has demonstrated, over a 25 year period, its capacity to exercise sovereign authority over a functional social and political system. Concomitantly, it has engaged in wide-ranging institution building, having established both political and economic infrastructures as well as robust mechanisms of self-governance. The only limitation remains the third element, determination of final status, and that can be achieved by fusing the concepts of remedial secession with the concept of earned sovereignty: remedial sovereignty.
Remedial sovereignty is a “process by which an oppressed people realize statehood by invoking remedial secession and undergoing a transitional period of mediated international administration, characterized by elements of sovereignty which are externally-designed and internally-earned.”
This conceptualization is quite salient because Azerbaijan’s initiation of the 2020 War was precisely designed to determine the final status of Nagorno-Karabakh, and in this context, not only were the criteria for requiring remedial secession met, but the actions of Azerbaijan also confirmed that expansive inroads had been made by Nagorno-Karabakh with respect to earned sovereignty. The use of military force by Azerbaijan, in this context, was an attempt to negate the earned sovereignty of Nagorno-Karabakh, further confirming the “exhaustion of negotiations” and thus justifying secession as a remedy of last resort.
Since it can be postulated that Nagorno-Karabakh has established earned sovereignty, and that Nagorno-Karabakh meets the criteria and threshold for remedial secession, remedial sovereignty posits two axiomatic claims: 1) the humanitarian and existential crisis of the Armenian people of Nagorno-Karabakh may only be remedied through remedial secession, and in this context, the role of the international community and its international legal instruments are fundamental to the process; and 2) reifying the basis for remedial secession, Nagorno-Karabakh’s status can only be determined by earned sovereignty and phased recognition. The fusion of both processes, in what is qualified as a hybridity model, informs the remedial sovereignty principle.
Utilizing the international legal and institutional mechanisms that were implemented in undertaking Kosovo’s phased recognition, a similar legal and political process remains applicable to the case of Nagorno-Karabakh. As addressed, Nagorno-Karabakh meets two of the three core elements for earned sovereignty: shared sovereignty and institution building. The third element, determination of final status, requires the same international institutions and instruments that were used to finalize Kosovo’s phased sovereignty. Considering the presence of the United States, Russia, and France within the OSCE Minsk Group, and thus the presence of an international institutional format for dealing with the political process, and considering the presence of each of the Minsk Group members as also being members of the United Nations Security Council, the infrastructure of utilizing international legal and political instruments to implement Nagorno-Karabakh’s phased sovereignty remains in place. In this light, in the same fashion that Kosovo’s phased sovereignty was “supervised” by the Special Representative of the Secretary-General (SRSG) under Resolution 1244, Nagorno-Karabakh’s phased sovereignty may be “supervised” by the Russian Federation with a pertinent mandate from the UN Security Council. Considering the presence of Russian peacekeepers in Nagorno-Karabakh, both the legal and political implications are clear: the temporary remedy to the existential threat faced by the Armenian population of Nagorno-Karabakh are the Russian peacekeepers. Further, considering the broad-ranging consensus within the international community of the role that the Russian peacekeepers play, and considering Russia’s willingness, and even request, for the involvement of the international community in addressing the humanitarian crisis facing the Nagorno-Karabakh population, both the international legal infrastructure (OSCE Minsk Group) and the political will (Russian “supervised” phased sovereignty under a UN mandate) are aligned and ripe for implementation.
Noting that the absorption of the Armenian population of Nagorno-Karabakh into Azerbaijan is neither tenable nor an option, as the criteria and basis of remedial secession demonstrate, and noting that Nagorno-Karabakh’s earned sovereignty has been substantiated for over 25 years, the only mechanism of determining the final status of Nagorno-Karabakh, like Kosovo, requires the implementation of phased recognition. Procedurally, noting the role of the Russian peacekeepers as temporarily remedial, the Russian Federation, de facto, is “supervising” the earned sovereignty of Nagorno-Karabakh. Thus, under a UN mandate, what is a de facto process will have de jure standing, and the final status of Nagorno-Karabakh, like Kosovo, will be implemented through phased recognition. This entails the UN Security Council to authorize the deployment of an international civil and security presence, with the latter heavily provided by the Russian Federation by virtue of the existing Russian presence and their role as guarantors of the security of the Nagorno-Karabakh population.
Overarchingly, considering the a) “exhaustion of negotiations” over status of Nagorno-Karabakh, b) Azerbaijan’s refusal to accept that such a status should even exist, c) Azerbaijan’s systemic violation of human rights, d) Azerbaijan’s use of force to expunge the Armenian population out of Nagorno-Karabakh, e) Azerbaijan’s implemented policy of ethnic cleansing, and f) Azerbaijan’s official policies and positions confirming the “abolition of autonomy,” all the criteria for secession as a remedy to the existential threat faced by the Armenian population of Nagorno-Karabakh is met. The satisficing of the remedial secession criteria is buttressed by Nagorno-Karabakh’s 25 year track record of earned sovereignty, which, collectively, produces two outcomes: 1) by virtue of its refusal to negotiate or recognize the process of determining final status, and 2) by virtue of using force, violating human rights, and engaging in systemic ethnic cleansing, Azerbaijan’s appeal to territorial integrity is de-prioritized in the face of the existential threat that Azerbaijan directly poses to the Armenian population of Nagorno-Karabakh. To this end, per the precepts and principles stipulated by remedial secession and earned sovereignty, Azerbaijan’s “consent” to Nagorno-Karabakh’s remedial and phased sovereignty become marginalized in the same way Serbia’s consent became marginalized in the phased recognition of Kosovo.
Collectively, remedial sovereignty addresses two important developments: it addresses the claims of territorial integrity by implementing remedial secession as a stopgap measure, and it does not immediately recognize the sovereignty of Nagorno-Karabakh, but rather protects the Armenian population of Nagorno-Karabakh against Azerbaijan and begins the process consolidating earned sovereignty. Implicit in the undertaking of these two developments is the fact that the application of remedial sovereignty also contributes to regional peace, while internationalizing the crisis and remedying the crisis through international institutions and instruments.