On the question of recognising the Republic of Nagorno-Karabakh: Hopes
and Illusions
HETQ
16:02, December 4, 2011
Talk on the recognition of the Nagorno-Karabakh Republic (NKR) in general
and, specifically, recognition by the Republic of Armenia has become more
prevalent of late. The discussions have been of a political nature,
although the recognition of a state is first and foremost a legal matter.
The debate can be divided into two camps. The first finds that the
recognition of the NKR would amount to nothing. As for the second, it seems
that recognition of the NKR is the ultimate end for them. I shall abstain
from evaluating these approaches. Instead, I shall stress the legal aspects
of this issue in trying to demonstrate that the question is much more
complicated than what it appears at first glance.
The recognition of any state – regardless of to what extent that act would
have a political basis – is a legal phenomenon. Accordingly, then, it is
necessary to examine the premises and the legal consequences that have to
do with the recognition of states.
The first recognition by treaty in modern times took place in 1648, when
the Eighty Years’ War (1568-1648) between the Spanish and the Dutch was put
to an end and Spain recognised the independence of the United Netherlands
that had broken away sixty-seven years earlier, having declared sovereignty
in 1581.
To comprehend more fully the matter of recognising newly-established
states, it is necessary to note what kinds of criteria are put forth by
international law to acknowledge the independence of countries. As per
international law, there are three such criteria: a fixed territory, a
population, and an effective government.[1] I find it necessary to
emphasise that international law does not place any minimal thresholds
for territory or population. In this regard, it is important that the
territory be specified and the population be permanent, and that’s
all. E.g., there are 2 areas between northern Sudan and South Sudan,
currently in the process of establishing its independence – Abyei and
South Kurdufan (the former with 10 460 sq.km and 60 000 inhabitants; the
latter at 158 355 sq.km and a population of 1 100 000) – a total of 1
160 000 people and 168 815 sq.km, the fate of which is to be decided in
future. As you can see, such an indecisive circumstance does not hinder
the process of establishing independence. Let me also stress that the
territory of NKR is marked with accuracy up to the metre, as separate
from Azerbaijan.
As for effective government, then it is absolutely clear that, at the very
least from May 1994, the elected officials of NKR have been fulfilling the
duties of government throughout the entire territory of NKR. I would like
to underscore in particular that the Republic of Azerbaijan has never
maintained an effective government over any part of the territory of NKR,
and it had not ever carried out any kind of governance over the territory
of the Nagorno-Karabakh Autonomous Oblast.
The aforementioned were the three criteria for recognition. Let us now turn
to what bases exist not to recognise. Inter-national law points to two
conditions because of which recognition can be obstructed. The first is
insufficient independence. The NKR’s position is quite weak in this case.
We are forgetting an important factor – independence means independence not
only from Azerbaijan, but also from Armenia. Therefore, as long as the NKR
remains outside the negotiations process, it would be naïve to expect that
any state would recognise the NKR’s independence.
The second condition hindering recognition is the violation of any
component of the principle of self-determination, for example, if there is
inadequate representation of a given ethnic or religious group in the local
authorities. In this case, the circumstances of the NKR authorities are
completely in line with the current population of the country.
The conduct and order prevalent in a state seeking recognition is also an
important factor. From a purely legal perspective, a democratic regime is
not a prerequisite for independence to be recognised. Nevertheless, the
retrogression of the NKR from `Partly Free’ to `Not Free’ as per the index
prepared annually by Freedom House is a serious step backwards on the NKR’s
path to recognition. Objections could be made to this argument: after all,
if anyone wanted to recognise anything, these circumstances would be
recognised as well. I agree. However, the trouble is indeed that they do
not wish to recognise, and so in such a case the only prudent policies
would be to eliminate all possible conditions and excuses not to recognise.
Now let us turn to another important question. What legal consequences
could be brought about by recognition of the NKR, or, put more simply, why
do some people insist that the Nagorno-Karabakh Republic be recognised?
This question has two sides. One is the recognition of the NKR by the
Republic of Armenia, and the second is recognition by other countries.
Recognition by Armenia would have more than one manifestation. Many are
motivated by political considerations. However, the issue has serious legal
complexities, which are always ignored. According to the Declaration of
Independence of Armenia, which forms part of the Constitution of the
Republic of Armenia, the establishment of RA is based, among other things,
on `*the December 1, 1989, joint decision of the Armenian SSR Supreme
Council and the Artsakh National Council on the `Reunification of the
Armenian SSR and the Mountainous Region of Karabakh’*’, that is, it
recognises the legality of that document. The third clause of that joint
decision declared `*the reunification of the Armenian SSR and Mountainous
Karabakh*’. How could the Republic of Armenia, then, recognise part of its
own territory as independent? I would like to underscore that the fact that
Nagorno-Karabakh is a part of the Republic of Armenia is not only codified
*de
jure* in the Constitution of the Republic of Armenia, but is also *de
facto*the reality in our everyday life. If that were not the case,
then the
military service of the conscript from Armenia in the NKR would be illegal,
the people of Nagorno-Karabakh could never carry passports of the Republic
of Armenia, and Robert Kocharian could not participate in the presidential
elections of the Republic of Armenia.
Those seeking recognition of the NKR believe that recognition would add to
the security of the NKR. If we set aside the apparent anti-constitutional
nature of such a decision, perhaps they would be correct. Nevertheless, let
us recall that a recognised state would be in no less danger from external
aggression. There are numerous recent examples to support this: regular
Turkish incursions into Iraq, the invasion by that same Iraq into Kuwait,
the assault by Israel into Lebanon before that, or Turkey’s invasion of
Cyprus, and so on. Thus, taking into account the experiences of the
not-too-distant past, we may summarise that, yes, international recognition
would benefit the level of security of the Nagorno-Karabakh Republic, but
it would be no guarantee for the secure existence of the NKR.
Now for the most important question: what to do? History attests to the
fact that states exist as long as that state and its likely adversaries
maintain a balance of power. The response, then, is very simple: the
balance of power must be maintained. I would like to especially stress that
power and military might are not the same thing. Coercive force is an
important component of power, but it is only one component. The most
difficult question arises out of this: how to maintain the balance of power
with the NKR and the Republic of Armenia on the one hand, and Azerbaijan
and Turkey on the other, when the elements that make up the power of the
parties are based on essentially different things. To put it simply, we are
behind our potential adversaries in terms of politics, the economy,
territory, geographic positioning, population, resources, military output,
etc. This question, which appears so difficult at first glance, has a very
simple answer. As balance is a relative concept, that is, it is the
comparison of power of the sides, then if one cannot maintain a balance by
becoming more powerful one’s self, then another approach must be adopted,
that of weakening one’s opponent. There are many ways to do so. I shall
refer to only a few. Native peoples of Azerbaijan today, whose numbers are
at least two and a half to three million – the Lezgin, Avar, Tsakhur,
Talysh, Tat, Udi, and others – are suffering under the yoke of Azerbaijani
nationalism. Yes, the identities of many are repressed or forcibly
concealed, but pointed efforts in the information realm would encourage the
awakening of national consciousness among them. Our delegations in various
European bodies and our embassies in the entire civilised world must always
bring up facts of the discrimination and sufferings in place concerning the
ethnic and other minorities in Azerbaijan. In practice, it would be
necessary to broadcast radio and television programming from the NKR in
Russian, in Turkish, and in the languages of those peoples, and also to set
up websites for them. I imagine that people would object, saying that there
is no expertise or no funding for any of this. First about the funding. If
the maintenance costs for former officials of the NKR were to be reduced or
eliminated from the NKR’s budget, then even that amount be sufficient to
carry out the plan I mentioned. And when there is funding, the expertise
will appear too. There are still individuals in the native peoples of
Azerbaijan who wish to struggle for the future of their own people. And I
also believe at the same time that it would be better if the Armenia Fund
would renovate one or two fewer schools or perhaps not construct a
windsurfing club on the shores of Lake Sevan, and instead implement the
plan I put forth. If the powers were to be put finally out of balance, war
would be inevitable, in which case all of the renovations and such would be
rendered into ruins. Therefore, maintaining an external balance through
internal counter-balances must be one of the foundations of policy for the
Republic of Armenia and the NKR.
The above applies to Turkey as well. In Turkey today, there is a profound
process of identity seeking underway. The best example is the target group
of the Zazas, which, according to some estimates, could be up to three
million in Turkey. Relations with the Kurds are very important and, taking
into account the ongoing processes in our region, they could be decisive
for Armenia’s future. Armenia must carry out much more mature and
far-sighted policies now, nearing its twentieth year. We have to understand
that, if not the restoration of our rights, and then at least the
establishment of an intermediary state between Turkey and us would match
our core interests. If not, then our being recognised will not save us. I
would like to recall that our first republic had complete recognition by
the international community, including Turkey and Russia, but that did not
hinder them from attacking the Republic of Armenia and dividing it between
themselves.
The other way to guarantee the security of the Nagorno-Karabakh Republic is
to keep Turkey as far away as possible from the region. Regrettably, the
unfortunate Armenia-Turkey protocols acted as a Trojan horse and helped
Turkey to stick its nose into the Nagorno-Karabakh business.
It is clear that, in essence, any negotiation, including an inter-state
one, is a process of the applications of leverages and counter-leverages.
Negotiations can be of benefit to one, if one’s leverages over one’s
interlocutors have more influences, than those of the interlocutors have
over one. When, years ago, I proposed my plan to the president of the
republic, the plan being for the most part based on the revival of the
arbitral award of Woodrow Wilson, I had in mind then security guarantees
for the Republic of Armenia and the Nagorno-Karabakh Republic. I find today
as well that if the Wilson arbitral award were to receive corresponding
weight and if it were to be given enough attention by influential juridical
bodies and experts, then it could act as a serious piece of leverage for us
as a guarantor of Turkish neutrality on essential issues. I find today
still that the creation of leverages of influence on Turkey must be the
most important foreign policy goals for us and that Wilson’s arbitral award
could serve to guide us well in that regard. Most unfortunately, in spite
of all my efforts, I could not achieve anything over the course of five
years, otherwise I would not continue my struggle alone and would at least
have an establishment to assist and support me.
In sum, the following conclusions can be drawn:
1. The recognition of NKR would be very inopportune politically, and it
is full of undesirable consequences legally.
2. Without constitutional amendments, recognition of the NKR by RA would
be anti-constitutional.
3. The recognition of NKR by any country would violate the territorial
integrity of RA.
4. The recognition of NKR by any country without its recognition by RA
would place conscripts from Armenia serving in NKR in a very vulnerable
legal position.
5. Our efforts should be mainly directed towards maintaining the balance
of powers. Azerbaijan must be weakened internally in order to do so, and
leverage ought to be set up with regards to Turkey.
6. The issue of the recognition of NKR must be stricken from the
Armenian political agenda as a matter unfeasible in practice, and an
objective that would not have any real outcome.
Some years ago, I had the opportunity to meet one of the former co-chairs
of the OSCE Minsk Group. Our conversa-tion was candid, as both of us were
former officials. In answering my question, as to what is the fate of
Nagorno-Karabakh, he said the following: `*What would it be? If you can
keep it, it’s yours. If you can’t keep it, then it will belong to the
Azerbaijanis*.’ The response is of course rather cynical, but that is the
only truth.
*Ara Papian*
Head, Modus Vivendi Centre
Beirut. 21 January 2011
From: Baghdasarian