Abstract

Excerpted From: Lisabelle Panossian, Protecting Humanity's Cradle of Civilization: Advancing the Right to Self-determination for Indigenous Peoples in the Middle East & South Caucasus, 22 Northwestern Journal of Human Rights 149 (April, 2024) (457 Footnotes) (Full Document)

During this paper's drafting, an indigenous people's independent government collapsed. For over thirty years, the Republic of Artsakh was a de facto independent region inside the internationally-recognized borders of Azerbaijan. The region comprised of an indigenous Armenian majority-- until September 2023. In December 2022, Azerbaijani authorities blocked the only road that connected Nagorno-Karabakh to the outside world. This blockade resulted in shortages of food, medical supplies, and fuel, the severity of which was especially felt during a harsh winter.

After experiencing starvation and preventable medical complications under a nine month-long blockade, the Azerbaijani government launched a military incursion on the Republic of Artsakh--claiming it was an “antiterrorist offensive.” By September 2023, under mounting pressure from the crippling blockade and a large-scale military offensive by Azerbaijan, the Republic of Artsakh's government signed a decree announcing its dissolution by January 2024--officially transferring control over the Artsakh region to Azerbaijan. By October 2023, nearly the entire Armenian population of Artsakh fled their homes in a mass exodus. For the first time in the region's history, the majority of Artsakh's indigenous population no longer lived on their native land.

How did we get here? Well, Nagorno-Karabakh--known to its indigenous Armenian population as Artsakh--was not always encompassed within Azerbaijan's internationally-recognized borders. In fact, for the majority of the region's history, it was an autonomous region that later fell under Azerbaijani authority after post-Soviet era colonization. On December 10, 1991, the Republic of Artsakh (formerly the Nagorno-Karabakh Republic) held a democratic referendum--where ninety-nine percent of Nagorno-Karabakh residents voted in favor of independence from Azerbaijan. That same year, the Republic of Azerbaijan's Supreme Council abolished Nagorno-Karabakh from possessing autonomous status.

For over thirty years, the Armenians of Nagorno-Karabakh witnessed the Republic of Azerbaijan deny their desire for independence--ultimately culminating in an ethnic cleansing of their native land. Further, the Armenians of Nagorno-Karabakh cannot directly fight for their interests themselves under international law, given that they have no international legal personality. When it came to advocating for their independence--and attempting to avoid forcible displacement from their ancestral homes-- the Armenians of Nagorno-Karabakh had nowhere to turn. Advancing the right to self-determination under international and domestic laws was their only hope for a sustainable and peaceful future.

Yet, the right to self-determination maintains a nebulous meaning under international law, despite being deeply rooted in key legal documents. The United Nations General Assembly explicitly declared that indigenous peoples have a right to self-determination in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). However, there is no authoritative answer regarding what indigenous people's right to self-determination precisely entails.

This article analyzes three distinct indigenous groups in the Middle East and South Caucasus to argue for the advancement of their right to self-determination under their respective regions' domestic constitutional provisions and international law, namely: (a) Armenians in the autonomous Nagorno-Karabakh region of the internationally-recognized borders of western Azerbaijan; (b) Assyrians in the Nineveh Plains of northern Iraq; and (c) the Talysh in southern Azerbaijan (“the selected groups”). The selected groups do not encompass all indigenous groups in the Middle East and South Caucasus. But analysis of these groups can provide an “indigenous peoples” lens to what a right to self-determination can look like in the Middle East and South Caucasus through a comparative analysis. Each selected indigenous group has undergone a shared history of seeking autonomy over their native lands--with such efforts met with violence ranging from outright dismissal to ethnic cleansing by their respective governments in power.

Legal instruments for indigenous groups to at least partially assert self-determination and autonomy over their ancestral lands generally exist. However, authoritative legal bodies have not interpreted or implemented these rights to their fullest potential. But even though the implementation of indigenous people's rights under international law “is far from perfect,” recognition of the selected groups' indigeneity under international law may introduce important rights recognized by the UN in the UNDRIP. It may open a door to international recognition of rights to autonomy, and it may play a meaningful role in the administration of natural resources on their historic lands.

Regional inter-governmental organizations also have their own human rights protection frameworks covering their respective geographic regions. Iraq is a member state of the Organisation for Islamic Cooperation (the “OIC”) and the Arab League. Azerbaijan is a member state of the Council of Europe, Organization for Security & Co-operation in Europe (the “OSCE”), and the OIC.

The OIC is “a peripheral grouping and a marginal player” in the public international legal field and has a defunct judicial body. The Arab League has also received consistent criticism “for disunity and poor governance”--being more representative of states' autocratic regimes than its citizens. Although the OSCE organized the Minsk Group to facilitate diplomatic cooperation between Armenia and Azerbaijan with regards to the Nagorno-Karabakh conflict, it has been decried as meaningless and ineffective in resolving the conflict. Lastly, Heads of State and Government of the Council of Europe explicitly rejected a proposed protocol potentially granting national minorities a right to self-determination inside the Council's member states. Moreover, protections for minorities in the European Court of Human Rights do not include an explicit right to self-determination.

Given the considerations above, this article does not review these regional legal mechanisms that may provide a right to self-determination. This article only articulates and addresses important legal and policy issues that arise when considering each group's right to self-determination under domestic and international law.

Section I articulates an international legal framework that can be used to determine whether a group constitutes an “indigenous people” under international law. Section II applies this framework to determine whether each of the selected groups are indigenous to their respective regions and, in turn, accorded “indigenous peoples” status under international law.

Section III delineates and defines a right to self-determination for indigenous peoples. This section also derives legal tests for assessing the various forms of self-determination an indigenous group can express, including internal and external self-determination.

Section IV provides reasons why each group urgently requires a justiciable right to self-determination under international law and defines each group's present and historical circumstances inside their respective regions.

Section V articulates domestic constitutional provisions inside the selected groups' respective regions that may provide for a right to internal self-determination. Section VI then applies the test for assessing a right to external self-determination articulated under Section III to the groups who may seek unilateral secession.

Section VII provides modes of relief that the selected groups can potentially take advantage of to properly assert their preferred right to self-determination. Finally, Section VIII proposes important international legal policy advancements that can appropriately empower and enable the selected groups to effectively exercise their available right to self-determination under international law.

[. . .]

Indigenous peoples of the Middle East and South Caucasus represent some of the world's most ancient, foundational civilizations. Allowing the continued erasure of and violence against the people who developed humanity's cradle of civilization is not only a tragedy to these indigenous communities of the region, but a tragedy to humanity itself. The international community, as an arbiter of justice, is obliged to ensure these indigenous groups can seek the peaceable, enforceable recourse necessary to ensure preservation of their culture, language, and practices on their ancestral land.

In Azerbaijan, NK Armenians can assert a right to external self-determination under international law. Further developing the appropriate UN bodies as discussed in Section VIII can ensure this group can secure lasting authority over their ancestral land. The Talysh of southern Azerbaijan exclusively seek a right to internal self-determination inside Azerbaijan's existing borders. However, Azerbaijani law facially provides no opportunity for any ethnic minority to assert a right to internal self-determination. This group requires international intervention to ensure they can properly assert a right to internal self-determination.

Assyrians of northern Iraq can assert a right to internal or external self-determination. Iraqi law provides this group a right to internal self-determination. However, no implementation of this right has occurred, and the group has even been actively blocked from exercising the right at certain points in time. Thus, Assyrians of northern Iraq can first seek relief through the Federal Supreme Court of Iraq, then through the ICJ by way of the policy proposals advanced.

UN bodies must provide a comprehensive, enforceable, and legitimate international legal framework for indigenous people's right to self-determination. Although the UNDRIP marked a significant step in recognizing indigenous people's right to self-determination, it remains nonbinding and vague. Connecting the UNDRIP's granting of a right to self-determination to the internal or external self-determination framework provided by Reference re Secession of Quebec, and the Anderson factors for assessing unilateral non-colonial secession, paves a road for advancing indigenous people's right to self-determination in the Middle East, South Caucasus, and beyond.

The advancements proposed will ensure indigenous groups with a necessary right to self-determination and no relief are no longer left to a neglectful or abusive ruling government. The legal advancement of self-determination will ensure that indigenous groups no longer need to resort to armed conflict or endure gross human rights atrocities to capture international attention when all other peaceable modes of exercising internal or external self-determination are blocked. In turn, advancing the right to self-determination will ensure a peaceful and justiciable means of protection for indigenous peoples, assuring the maintenance of a cultural integrity that no dominant power can revise or erase.