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By Orkhan Amashov

The legal air enveloping the presence of the Russian troops in Karabakh, Azerbaijan, is not one of explicit clarity, but of constructive ambiguity. However, it seems improbable that this state of affairs will change in a measurably discernible way before the spring of 2025, when Baku will be able to exercise its veto right.

Furnished with a foundational legal basis by virtue of the 10 November 2020 trilateral declaration, the Russian peacekeeping contingent stationed in the former Nagorno-Karabakh Autonomous Oblast has been bedevilled with two legitimacy issues, at least.

It does not correspond with the definition of a traditional peacekeeping operation in line with UN logic. Its reference point - the trilateral ceasefire deal signed by Azerbaijan, Armenia and Armenia - sets the bare minimum without elucidating its mandate.

International law

The criteria for maintaining a peacekeeping contingency perfectly legitimate in the eyes of international law is not a widely and wondrously varying framework. In the present case, the question "what law says" could be answered by reference to the UN-approved norms and the standards articulated by the OSCE, whose beleaguered Minsk Group, despite being nothing but the acme of insipid vacuity, deserves mention to this effect.

First of all, there should be a mandate authorised by the UN or another relevant international organisation. Secondly, this mandate must clearly stipulate its responsibilities, rules of engagement and accountability provisions.

Thirdly, peacekeepers are to be drawn from countries that are not party to the conflict and thus, in this particular instance, the OSCE co-chair countries and regional actors were excluded. Fourthly, its presence should entail a commitment to a certain political settlement.

None of the conditions hitherto specified have been fully satisfied in the case at hand. The UN has not issued a statement retrospectively ascribing 'peacekeeper status' to the Russian troops operational in Karabakh, but in a statement made by the Secretary-General's office in the aftermath of the 10 November ceasefire deal, it was suggested that Russia and its ''peacekeeping troops' must be tasked to fulfil a range of humanitarian issues.

This may be interpreted as an acknowledgment of two principle points and a refutation of one. The statement accepts that the Russian presence is not without legitimate grounds and is authorised by the conflicting sides and that, by the trilateral declaration, the troops are defined as 'peacekeepers'. However, what it does refute is reference to them as 'international peacekeepers in accordance with international law', and understandably so.

Paul Goble, former advisor to the US Secretary of State, told me that Russia does not satisfy the requirement of "being impartial', because it is a party to the conflict and has hitherto operated not as a peacekeeper, but as an ally of the truncated remnants of the Armenian separatists. In his view, if Azerbaijan had managed to ensure the involvement of third countries for the purpose, this would have been a gargantuan success for Baku and a guarantor of long-term peace.

Unspecified mandate

The trilateral declaration does not specify the exact rubric of tasks pertaining to the peacekeeping contingency and the entire concept remains shrouded in constructive ambiguity. The normative framework is of a nature to allow a wide range of mutually exclusive interpretations to be made.

The ceasefire agreement stipulates the bare minimum without going into extensive details on the nature and functional scope of the peacekeepers. The overwhelming sensibility is that the lack of a clearly stipulated mandate is attributable to the fact that the parties did not come to a common understanding and the suggested specification modes have militated against the interests of at least one of the actors.

Baku does not want to concur with any agreement that may remotely or potentially endanger its sovereignty over Karabakh. Moscow seems to be relatively satisfied with the present sway it has over the facts on the ground and has no appetite for facilitating a new arrangement that would have enabled Azerbaijan to exercise de facto control over the sovereign territories that are currently within the zone of responsibility of the Russian contingent.

However, the concern in Armenia seems to be that any new arrangement leading to gradual retrenchment of the Russian presence in Karabakh will be a blow to its contrived and forlorn hopes for the resuscitation of the remnants of the so-called illegal and unrecognised "Nagorno-Karabakh Republic (NKR)".

Future design

The 20 months following the trilateral declaration and deployment of the Russian peacekeepers have not been completely devoid of problems. Although Baku, on the whole, praised Moscow's role in the trilateral format, its attitude towards peacekeepers has been measuredly critical.

It is generally assumed that the rapid turnover of mission heads was instigated by virtue of Azerbaijan’s disapproval. Russia's somewhat cavalier approach to the limitations imposed by Article 3 and the exercise of some self-granted autonomy have not gone unnoticed in Baku.

Since the peacekeepers are stationed in the internationally-recognised territories of Azerbaijan, the latter's red lines and their implications for the mandate dilemma must be duly evaluated.

First of all, Baku does not want to alter the present "temporality" of the peacekeeping contingent. The terminological attitude adopted favours the expression "the temporary zone of the Russian peacekeepers", which is quite apt, as it reflects the "5+5" formula and the veto right as to termination. Incidentally, the word "temporary" is not always present in the language employed by Russian officials, a semantic issue with seismic implications.

Secondly, Baku does not seem to be inclined to give the peacekeepers a more formal status or treaty-based legitimacy. The 10 November declaration is a ceasefire agreement and not a peace treaty. Article 4 of the trilateral declaration has not been fully implemented, as the remnants of the so-called "NKR" are still present in Khankandi. The fear is that a more entrenched Russian presence in Karabakh, without Baku's direct involvement, will involve corollary risks.

Thirdly, Baku may sign a document specifying the exact mandate only on a bilateral basis with Russia. Although the trilateral declaration – the current basis of the Russian peacekeeping mission – is signed by Azerbaijan, Armenia and Russia, it is apparent that because the Russian peacekeeping mission zone is on sovereign Azerbaijani territory, Baku does not believe Yerevan should be a direct party to a legal instrument, specifying the peacekeepers' mandate.

The likely probability is that the constructive ambiguity that currently pervades will remain unaltered in the immediate future. A clear legal mandate is possible if Baku obtains a measurable amount of effective control in what is now the temporary area of the Russian contingent.

One could assume, albeit tentatively, that the fate of the peacekeepers will be decided upon closer to 2025 - the deadline when Azerbaijan may exercise its veto right. At present, chastened in Ukraine and under international pressure, it is unlikely that Russia will aspire to gain more leverage than is currently the case. Given the peacekeepers' track record, which has not exactly been perfect, Azerbaijan's present and considered calculation does not seem to favour agreement to a clear mandate.

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