Exploring the Impact on International Law Amid Nagorno-Karabakh Ethnic Cleansing, with Sheila Paylan
In this episode of the DemSecurity Podcast, Tigran Grigoryan, head of the RCDS, hosted international Human Rights lawyer Sheila Paylan. Together, they delved into various aspects of the relationship between international law and the events unfolding in Nagorno-Karabakh.
They started by questioning the effectiveness of the rules-based order in preventing, regulating, and responding to such situations. Additionally, they highlighted how these norms could be manipulated to serve the specific interests of states, and how the nature of political regimes could influence the use they make of it. Finally, Sheila Paylan explained the human-rights approach to international law that she strongly advocates.
This podcast was filmed in July 2023 and produced by Boon TV.
Setting a precedent ? The deleterious consequences of Azerbaijan blockade on international law
In February 2022, the International Court of Justice issued a decision following requests for provisional measures made by Armenia and Azerbaijan. The Court underscored the imminent risk of irreparable harm to Armenians' rights and ordered Azerbaijan to take all necessary measures to ensure unimpeded movement along the Lachin Corridor. Concurrently, the Court unanimously rejected Azerbaijan's plea for provisional measures related to false allegations of landmine laying by Armenia and Nagorno-Karabakh, as well as the surrounding territories.
As highlighted by Sheila Paylan, a critical turning point occurred post the Court's decision. Azerbaijan not only failed to comply with the order but exacerbated the situation by establishing an armed checkpoint after ‘’protesters” had previously departed from another area of the Lachin corridor. This marked a deliberate escalation, overtly violating the Court's order and further intensifying the blockade that had commenced in December 2022.
“Whereas before they were interpreting the original order in sneaky ways, now they really stepped it up in a way they’re overtly violating the order themselves”, emphasizes Sheila.
This defiance persisted until July 2023, by which time the so-called spontaneous rally that Azerbaijan initially used as a justification for the blockade had concluded. Nevertheless, the blockade persisted, and a new armed checkpoint was added, rendering Azerbaijan without any valid justification in the face of the Court's decision.
While the Court's decision could have fostered greater international consolidation around the authorities of international bodies to prevent ethnic cleansing policies by states and contributed to the development of an international customary law on the matter, Azerbaijan's breach is poised to set a precedent in the opposite direction. The interpretation of the Court's decision by Azerbaijan raises concerns about the erosion of international law's efficacy and the authority of institutions such as the International Court of Justice, explains Sheila.
“Insofar as these violations continue to go unpunished, it totally has an erosion, corrosive effect on the power of international law and the authority of the International Court of Justice,” she says.
The deliberate misuse of international law to justify political agendas
One of the consequences to which this event could contribute is the reinforcement of a certain hierarchy among international legal principles, particularly those protecting the integrity and sovereignty of states versus those safeguarding the rights and interests of populations living within their territories.
From the perspective of international law, the conflict in Artsakh embodies the longstanding tension in the international community between several legal principles. Among the highest in the normative hierarchy are the right of peoples to self-determination, included in the broader corpus of human rights, and the state's right to territorial integrity, stemming from state sovereignty as the normative foundation of the modern international system.
Although these rights are complementary in theory, in practice, they are often placed on an apparent equal footing. Similar to Nagorno-Karabakh, state practices and normative discourses tend to juxtapose the right of peoples to claim their political freedom and choose their form and territory of governance against the importance of a state's border integrity to ensure international stability. Thus, states have historically manipulated this apparent legal equipoise to justify their geopolitical agendas.
Our guest, Sheila Paylan, discusses the "weaponization" of international law, particularly by authoritarian states that tend to downplay the importance of respecting human rights.
"Authoritarian states are weaponizing international law to promote their agenda," she says. "They're abusing it in a way that's super dangerous. Of course, territorial integrity and sovereignty are international legal principles. They're not the only ones; they're not above and beyond any others. Human rights and the right of self-determination are way up there. Authoritarian states are looking at it through a lens that has nothing to do with what these rules were created for."
Nagorno-Karabagh: the end of the responsibility to protect?
The responsibility to protect is another norm that undergoes repeated misinterpretation of the principle of territorial sovereignty and non-intervention.
Responsibility to protect is a new and critical international norm aimed at preventing a recurrence of the international community's failure to intervene in mass atrocity crimes such as genocide, war crimes, ethnic cleansing, and crimes against humanity. It embodies a political commitment to putting an end to the most egregious forms of violence and persecution and explicitly asserts that state sovereignty comes with a responsibility directly tied to the protection of the people within its jurisdiction.
Consequently, this responsibility extends beyond the individual state and becomes a collective obligation of the community of states. It comes into play when a specific state is either unwilling or unable to fulfill its duty to protect, or worse, when it is the actual perpetrator of crimes or atrocities. The events unfolding in Nagorno-Karabakh over the past year starkly exemplified such a situation. Despite the fact that Nagorno-Karabakh was de jure recognized as a territory within Azerbaijan's borders, the international community refused to intervene to protect the rights of the population living within its borders, and to be perceived as violating Azerbaijan's sovereignty.
“We are witnessing international relative apathy to a very serious level. This isn't just about protecting the rights of Armenians. There's a serious lack of recognition that there's not only an ongoing international crime happening here, but a total crime against humanity”, emphasizes Sheila Paylan.
In doing so, the international community once again contributed to prioritizing territorial integrity over the protection of human rights, thereby diminishing the authority of norms and institutions established to prevent the recurrence of grave international crimes, as history has already witnessed.
As Sheila points out, “All these conversations at the highest levels are still having only to do with territory, and not nearly the consideration of the rights and security of Armenians, which is the last consideration all the way at the bottom. What's at the top? Square kilometers. There's a regression and it's growing”.
Advocating for a human rights based approach of international law
In order to prevent such misinterpretations of international law, Sheila Paylan strongly advocates for a human rights-based approach in both her research and diplomatic work. Recognizing a profound shift in the defense of human rights amidst the escalating instability of the international system, Sheila stresses that the essence of our rules-based system lies in the sole and overarching purpose of ensuring the defense of human rights.
“We should stop taking such a nationalist, territorial-based view of international law as the law that governs the relations between states, and start giving human rights the prominence it has. But we are just shoving it to the side because we think land is more important”, develops Sheila.
Originating from key international instruments like the Universal Declaration of Human Rights adopted in 1948, the human rights based approach represents a paradigm shift towards translating human rights principles into tangible actions. It aims to promote the active participation and empowerment of individuals, accountability for violations, and the rule of law.
As such, Sheila concludes: “I think we all have a responsibility. The international community is not just states. It’s also grassroots, it’s us, you and me, to try to develop a relationship with what we think rights means and how important we think they are. And then we can agree to keep fighting for them”.
Written by Lou Terzian.