BY DR. ARA PAPIAN
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 recognized 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 recognizing 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. I find it necessary to emphasize 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 recognize. International 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 recognize 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 recognized. 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 recognize anything, these circumstances would be recognized as well. I agree. However, the trouble is indeed that they do not wish to recognize, and so in such a case the only prudent policies would be to eliminate all possible conditions and excuses not to recognize.
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 recognized?
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 recognizes 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, recognize 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 recognized 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 summarize 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 civilized 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 is 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 recognized 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 conversation 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 is the head, Modus Vivendi Center