25 Jul 2021
By Sossi Tatikyan
What was posed as a border demarcation issue further threatens regional stability in the South Caucasus. The current context of mounting military action is not sustainable; the process must revert back to international norms. But first, it is necessary to lay out where we stand today with a chronology of events.
Border Incidents Since December 2020
In mid-December 2020, a month after the tripartite agreement on ceasing the hostilities of the 2020 Artsakh War was signed between Armenia, Azerbaijan and Russia on November 9, 2020, Azerbaijani troops started advancing their positions into the territory of Armenia proper. The military advances were accompanied by militaristic statements by Azerbaijani President Aliyev and public figures, including explicit territorial claims to Armenia, including Syunik, Lake Sevan and even the capital Yerevan.
In December 2020-January 2021, the advances of Azerbaijani forces resulted in the division of two villages—Shurnukh and Vorotan in Syunik region—and the deployment of Azerbaijani troops on the intra-state Goris-Kapan road. A large sign reading “Welcome to Azerbaijan” with Azerbaijani versions of maps featuring explicit territorial claims on Armenia proper was placed on the road, and Azerbaijani troops were deployed to guard the sign, creating security concerns. Rumors about a secret deal in relation to another road—between Goris and Davit Bek—intensified in February 2021.
Between the end of December and mid-May, there were systematic incidents where the inhabitants of the border villages of Syunik region were targeted by Azerbaijani forces, including firing with small- and large-caliber weapons near the villages and targeting civilian vehicles with stones near Kapan. Residents of Meghri also had their access to water interrupted. Frequent incidents occurred between Azerbaijani troops and Armenian shepherds who take their livestock to the fields close to the border. There were concerns that the situation in the bordering regions of Armenia would escalate into a more systematic military offensive by Azerbaijan. In some areas of Syunik, Russian troops were deployed between Armenian and Azerbaijani positions. Access to the Syunik region by the media has been restricted for national security considerations, which intensifies the reliance on rumors and spread of disinformation. These developments fed the feeling of insecurity and fear of further territorial losses in Armenia.
The creeping advance was unexpected and, unfortunately, underestimated at first by the Armenian authorities, most of the expert community and a wide swath of the public, who wanted to believe that Azerbaijan would limit its claims to the internationally-recognized administrative borders between Soviet Armenia and Soviet Azerbaijan. It was also taken for granted that Russia would prevent such escalations based on the Armenian-Russian strategic alliance, including the agreement on military cooperation and Armenia’s membership to the Collective Security Treaty Organization (CSTO). The initial reactions by Armenian officials were inconsistent, the issues were relegated to a demarcation and delimitation process based on GPS data, causing domestic controversy.
“Delimitation” of a boundary is the legal formalization in a treaty of the state boundary between adjoining states, whose position is graphically plotted on a topographic map and duly defined in its corresponding written description, whereupon the map and the description may become an integral part of the treaty. “Demarcation” of a state boundary involves marking out the course of the state boundary between adjoining states on the ground by means of physical state boundary markers, including the compilation of demarcation documents.
Armenia’s Human Rights Defender Arman Tatoyan started addressing the border crisis since the incursions began, paying frequent field visits to the border regions where Azerbaijani troops were advancing, and meeting with municipal authorities and local residents to examine the impact of the military movements of Azerbaijani troops on human security and human rights on the ground. Responding to his inquiry, the Armenian Ministry of Foreign Affairs (MFA) clarified on December 29 that demarcation is a bilateral process that requires a joint commission to come to a bilateral agreement, only after which demarcation can be carried out. The statement continued “Prior to the above-mentioned process, the deployment of armed forces or border troops to conduct combat duty along the state border is a purely defensive security measure… negotiated directly or indirectly between representatives of the armed forces… that cannot be interpreted as a final agreement on demarcation, or mechanical approval of existing administrative boundaries.”
However, on May 12-13, Azerbaijan started advancing several kilometers in at least two regions of Armenia—Black (Sev) Lake and Sisian in Syunik region, and Vardenis and Verin Shorzha in Gegharkunik—ultimately deploying more than 1000 troops within several days and starting engineering work in the captured positions. Throughout the following weeks, there were incidents of various scope, the most serious of them being the establishment of dozens of Azerbaijani military positions in Armenia, capturing six additional prisoners of war and killing three Armenian servicemen. Those developments proved that this was not a legitimate process aimed at demarcation and delimitation, but what some experts call borderization or creeping annexation.
During the Government session of May 20, 2021, Armenia’s Acting Prime Minister [he had formally submitted his resignation to begin the election process] Nikol Pashinyan announced that trilateral negotiations in relation to demarcation and delimitation were ongoing between Russia, Armenia and Azerbaijan. He did not deny the existence of a leaked draft statement between Armenia, Azerbaijan and Russia. It caused controversy among the public since the process appeared to be imposed, rushed, and not corresponding to national interests or international standards. Civil society organizations made an unusually tough statement pointing to the Armenian Constitution, according to which alterations to the territory of Armenia must be decided through a referendum, and to the Vienna Convention on the Law of Treaties, which renders null and void any agreements obtained through coercion or threats against a state representative. They also urged an appeal to the UN and OSCE in line with international legal norms, and taking other steps to guarantee the security and rights of the residents of Armenia’s border regions. The Armenian Ministry of Foreign Affairs denounced “the fake agenda of so-called ‘disputed territories,’ which could set a dangerous precedent for justifying the use of force in other regions as well” and announced the necessity of conducting demarcation and delimitation in the context of negotiations over Nagorno-Karabakh within the OSCE Minsk Group process. The Foreign Ministry leadership resigned in the days following the turmoil.
In spite of the political debate in the Armenian Parliament held on May 26, Armenian authorities hesitated to appeal to the UN Security Council regarding the violation of Armenia’s territorial integrity, instead notifying the CSTO of the threat to its security and territorial integrity and referring to Article 2 of the Treaty. But Armenia did not receive the expected guarantees from the organization for political or military support. Moreover, after several weeks, CSTO Secretary General Stanislav Zas said that the border standoff was merely a border incident and did not qualify as foreign aggression requiring the CSTO’s military intervention, a stance that was criticized by Armenian officials and experts.
However, the U.S., France, OSCE and the EU did urge refrain from military actions and demanded the withdrawal of troops from the non-demarcated border. The U.S. representatives to the OSCE said on May 25 that “Military movements in disputed territories are unnecessarily provocative. We expect Azerbaijan to pull back all forces and call on both sides to begin immediate negotiations to demarcate their shared international borders.” Iranian Foreign Minister Mohammad Javad Zarif, said that “the internationally recognized borders and the territorial integrity are our red line.”
After a few weeks of relatively low tension during Armenia’s early parliamentary election, starting July 14, the Azerbaijani Armed Forces provoked a new escalation in the direct vicinity of Yeraskh, a border village in Armenia’s Ararat region, 60 km from Yerevan. On July 15, now-reelected Pashinyan stated for the first time that Azerbaijan is obstructing the demarcation and delimitation process through the use of falsified maps. On July 23, Azerbaijani President Ilham Aliyev stated that Azerbaijani troops have strengthened on the borders and would continue to strengthen. On the same day, three Armenian servicemen were injured, one of them severely, due to shooting by Azerbaijani troops in the Gegharkunik region, and Armenian air defense prevented an Azerbaijani UAV from entering Armenian airspace.
The Risks of Deviating From International Standards
As Russian President Putin wrote in his article “On the Historical Unity of Russians and Ukrainians” published on July 12, 2021, the Bolsheviks “dreamt of a world revolution that would wipe out national states… Inside the USSR, borders between republics were never seen as state borders; they were nominal within a single country… The Bolsheviks had embarked on reshaping boundaries even before the Soviet Union, manipulating with territories to their liking, in disregard of people’s views.” Demarcation and delimitation in the Soviet Union was not necessarily linked to national or ethnic considerations.
In 1918-1920, during the brief existence of the independent republics of Armenia and Azerbaijan, there were regular military clashes between them over disputed territories, and no agreement was reached between them on a mutually acceptable borderline. Drawing the border between them was mediated by Soviet authorities in several stages during the USSR, and were signed by the Soviet Socialist Republics of Armenia and Azerbaijan in 1929 and 1969, resulting in the further reduction of the territory of Armenia in favor of Azerbaijan. Without respect for the human rights of the local villagers, hundreds of square kilometers of their lands, forests and pastures were handed over to Azerbaijan.
The transfer of the territories to Azerbaijan and the creation of Azerbaijani enclaves in Armenia carried out during that period, made Armenia’s connection to neighboring countries pass through roads handed over to Azerbaijan. The enclaves are located on the roads connecting Armenia with Georgia and Iran.
The tripartite ceasefire statement of November 9, 2020, states that all economic and transport links in the region shall be unblocked. Armenia should guarantee the safety of transport links between the western regions of Azerbaijan and the Nakhichevan Autonomous Republic with a view to organizing the unimpeded movement of citizens, vehicles and goods in both directions. Control over transport communication will be exercised by the Border Guard Service bodies of the Russian FSB. The construction of new transport communications linking the Nakhichevan Autonomous Republic with the western regions of Azerbaijan shall be provided.
On January 11, 2021, Armenia, Azerbaijan and Russia issued another joint statement to create new transportation infrastructure aimed at “unblocking” the region’s roads, followed by several meetings by officials to discuss the roadmap for its implementation. However, Azerbaijan has been insisting on a corridor through Meghri instead of the agreed road between Azerbaijan proper and Nakhichevan, transforming the provision on unblocking communications to a territorial claim over Syunik, and threatening Armenia with war if they did not concede. This fuels Armenian concerns about its territorial integrity and security, in particular the fear that Azerbaijan may intend to separate various parts of Armenia from each other by controlling roads.
On July 23, 2021, Ambassador of France to Armenia Jonathan Lacôte suggested in an interview to avoid the term “corridor,” which is not used in either the November 9 or January 11 trilateral statements. He also referred to the troubled history of “corridors” in diplomacy and international law, such as the post-WWI Danzig corridor. He referred to the need for the restoration of communication links between the countries in the region in line with the November 9 statement and underlined that the spirit of today’s world is not to create corridors at the expense of the territories of other countries, but rather open up borders to ensure freedom of movement and the circulation of goods and people, as European countries did.
Apart from the explicit attempt to control the roads and communications, Azerbaijan has been explicitly threatening Armenia’s water security. In March-April 2021, in line with the November 9 statement, it has taken control of the water resources in Kelbajar/Karvachar that was the source for areas of both Artsakh and Armenia, followed by reports of attempts at changing some riverbeds, including those feeding Lake Sevan. In February, Human Rights Defender Tatoyan stated that the right to water for the residents of the Meghri community was being continuously violated by the deliberate actions of the Azerbaijani forces. Since mid-May, Azerbaijan has been occupying Black Lake, only 30% of which was given to Azerbaijan upon its request during the Soviet period, and is also creating problems in Gegharkunik region. According to Tatoyan, this violates the Convention on Transboundary Watercourses, the Use and Protection of International Lakes, as adopted in Helsinki on March 17, 1992, and other international instruments. The United Nations has declared the right to water and sanitation a global Sustainable Development Goal. It is widely known that the division of water resources has been playing a major role in conflicts and has been a factor in the Israeli-Palestinian conflict, as well as a major issue between Ethiopia, Egypt and Sudan.
Azerbaijani ambitions to take control over roads and water resources had often been expressed by their officials and analysts during their visits to Western think tanks well before the 2020 Artsakh War. Before the war, Armenia had extensive water resources, also used by hydropower plants to generate electricity. It had also started developing tourism, the contribution of which to Armenia’s GDP was intensively increasing before the COVID-19 pandemic and the war. Apart from monasteries and mountains favorable for cultural and eco-tourism, Armenia was also considered one of the world’s safest countries, according to Gallup International’s 2019 Law and Order report. The border developments and continuous capturing of positions on mountains and near water resources questions Armenia’s internal security, economic sustainability and, if continued, viability as a sovereign state.
A Human Rights Approach
Arman Tatoyan has been vocal about the human rights violations against the inhabitants of Armenia’s border regions. He has published many statements and reports containing evidence of how the presence and actions of Azerbaijani troops endanger the right to life, the freedom of movement, right to liberty and security, right to property, rights of children, including their right to education, and other rights. For example, the school of Nerkin Hand village in Syunik is located 500 meters away from the positions of the Azerbaijani Armed Forces. In other villages, people have cadastral documents of houses and lands, but cannot use them, as they have been passed to the Azerbaijani side, or they are under regular shooting. As an additional argument, Tatoyan also points to the high level of anti-Armenianism in Azerbaijan, making the presence of the Azerbaijani troops in Armenian border areas all the more threatening.
The Human Rights Defender underlines that demarcation and delimitation issues should not be discussed only from the political and military point of view, but should be based on a human rights approach. He refers to the history of the 1920s and 1930s when Soviet Armenia lost territories, and the rights of residents of border villages were not taken into account, resulting in the exacerbation of socio-economic and security problems.
Tatoyan calls for the creation of a demilitarized security zone, measuring at least 5-7 kilometers, along the border with Azerbaijan in Syunik to protect the human rights of the local inhabitants. Tatoyan said that cadastral documents should be the basis of the border determination process. He also touches upon the issues of using the pastures and water resources of the pastures passed to the Azerbaijani side.
The Potential Role of International Mediation
Starting on May 17, Russia has been expressing willingness to provide assistance to Armenia and Azerbaijan in resolving tensions on the border, if such a request comes from both sides, underlining its role in mediating two trilateral statements and the importance of mediation in conflict situations. On July 22, Russia underlined the urgency of such processes and reiterated its readiness to mediate and assist in providing maps and documents, and facilitating the discussions between the two countries.
On May 27, at a special sitting of the Security Council, Acting PM Pashinyan underlined the necessity to avoid a large-scale clash, and instead find a diplomatic solution to de-escalate the situation. Toward that end, he suggested that the armed units of both sides should leave the border in a mirrored fashion, returning to their permanent bases, suggesting that international observers from Russia or the OSCE Minsk Group co-chairs be deployed along the purported border to ensure that the other side is abiding by the agreement, and that the demarcation process should take place under the auspices of Russia or the OSCE Minsk Group Co-Chairs.
The OSCE assists participating states in implementing the OSCE Border Security and Management Concept formulated in 2005. In 2011-2016, the OSCE organized area seminars, bilateral consultations and workshops on professional development, exchange of information and best practices for representatives of intergovernmental commissions on the delimitation and demarcation of state boundaries, with the engagement of international and national experts. In 2017, it published an extensive Guidebook on “Delimitation and Demarcation of State Boundaries: Challenges and Solutions,” which provides examples of international legal practices in state boundary-making of newly-formed states, outlines main stages in delimiting and demarcating state boundaries, and makes recommendations for organizing relevant work. It has also advocated for water diplomacy to negotiate solutions which balance the conflicting water needs in different countries, and to urge states to reconcile them with those of neighbouring countries.
After his meetings with Pashinyan and Aliyev, President of the European Council Charles Michel stated on July 8, 2021 that in respect to the demarcation of borders, the EU is ready to mobilize experts and resources for monitoring. Michel expressed support for the mediation activities of the OSCE, but added that this doesn’t impede the EU from also sharing its experience. The EU has developed an Integrated Border Management framework, mostly applied to states that don’t have an ongoing conflict.
Options for the Way Forward
First of all, there is no international requirement to conduct a demarcation and delimitation process, and they should not be imposed and conducted through military aggression or political blackmail. Besides, it is a complex process, especially when there are no diplomatic relations between the countries and there is an ongoing conflict. Therefore, it should not be rushed, and no unreasonable timelines should be imposed for its finalization. There are many countries, such as in Europe and Africa, that haven’t conducted it yet, including those that have territorial disputes. However, it doesn’t justify a military conflict between them in violation of the UN Charter urging all Members to refrain from the threat or use of force against territorial integrity or political independence of any state. In the South Caucasus, no demarcation has been concluded between Russia and Georgia, Russia and Azerbaijan, Azerbaijan and Georgia, and Georgia and Armenia.
At the same time, if demarcation is conducted in line with principles and standards of international law and human rights, and with international mediation in the right format, it may contribute not only to the de-escalation of border tensions but also to the resolution of the Nagorno-Karabakh conflict.
The main problem is that Azerbaijani President Aliyev’s primary goal is obviously to force Armenia to accept Azerbaijan’s territorial integrity and to make it recognize Nagorno-Karabakh as part of Azerbaijan, thus not allowing its comprehensive and sustainable resolution, including its status, deemed necessary not only by Armenia but also by the OSCE Minsk Group Co-chairs Russia, France and the U.S. This is unacceptable both for Armenia and Artsakh; the leadership of the latter has expressed that they can never be part of Azerbaijan. Therefore, there may be two options to the demarcation in light of the Nagorno-Karabakh conflict.
The first is to conduct partial demarcation and delimitation only along the line of contact of Armenian and Azerbaijani troops, separating it from the resolution of the Nagorno-Karabakh conflict, and determining since the very beginning that it should not concern the borders around Nagorno-Karabakh. On May 27, PM Pashinyan underlined his intention for such a process in the Sotk-Khoznavar area, where border tensions had arisen in that period, to adjust border checkpoints under international auspices. However, the area of border tensions subsequently expanded.
The second option is to link the demarcation and delimitation to the comprehensive peace settlement of the Nagorno-Karabakh conflict and the determination of the status of Nagorno-Karabakh, conducting it under the auspices of the OSCE Minsk Group, as was suggested in the statement by the Armenian Foreign Ministry in May. In order to avoid getting stuck in decades of lack of progress in negotiations, as has been the case between Armenia and Azerbaijan since 1994, eventually resulting in the use of military aggression by Azerbaijan; or the lack of progress in demarcation itself, as in the case between Serbia and Kosovo, it is important to achieve a general consensus on the necessity for a comprehensive settlement of the conflict and target a realistic timeline for the conclusion of the process, such as by the end of the current stage of the deployment of Russian peacekeepers through to 2025. As a confidence-building and security measure, the withdrawal of the Azerbaijani Armed Forces from the sovereign territory of Armenia to their positions of May 11 is key, for which international pressure is needed.
In both cases, Armenia should involve not only representatives of state agencies but also a number of experts in the national working group preparing the Armenian delegation in the joint commission for negotiations, such as national and international lawyers, human rights and conflict resolution experts, historians, geographers, cartographers and economists.
The best format would be to establish a joint commission under the auspices of the OSCE that brings together Armenia, Azerbaijan, Russia, the U.S., and EU and CSTO states that have experience in facilitating the demarcation between Belarus and Lithuania and providing training and expertise to other states. The Commission may have a mandate from the OSCE or even the UN, establishing its scope, timelines and red lines.
Source: EVN Report