From International statehood to Government Recognition
Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Antonio Attolico
The region of Nagorno-Karabakh, also known as Artsakh, is a Caucasian region between Armenia and Azerbaijan, which under the USSR was administered as an ethnic Armenian autonomous “oblast” (province) of the Azerbaijan Soviet Socialist Republic. After 1991, when a declaration of independence was held by plebiscite and 1994, when the First Nagorno-Karabakh war ended, the Republic of Artsakh (NKR) obtained control of part of the abovementioned region.[1]
Within last month, world media have focused again on the region due to the violent escalation in the relations between Armenia, integrating and supporting the functioning of the republic, and Azerbaijan, claiming the territory for historical-geographical reasons.[2] However, this article does not seek to provide an insight as to how the hostilities were caused or conducted nor does it aim to explain what the Russian mediated ceasefire agreement has listed. Instead, it analyses whether the republic of Artsakh or Nagorno-Karabakh, could be recognized as a sovereign state, in relation to the sources of international law and state practice.
Before proceeding with the analysis, it is fundamental to clarify that the declarative approach under the Montevideo Convention 1933 will be applied and preferred. As such, although state practice will later be considered in this essay, the relevance of NKR by other sovereign states will not have any constitutive influence on the definition of the question.[3]
Under article 1 of the “Montevideo Convention on the Rights and Duties of States”, statehood is subject to the possession of a defined territory, a permanent population, a government (all identified under the effectiveness scheme) and the capacity to enter into relation with other states – hence exercising actual independence.[4]
Firstly, the term “territory” necessitates that the area in question be an identifiable location, without further requirements such as the absence of disputes or geographical certainty. As such, this makes it the easiest criteria to comply with. Indeed, in this case, a part of the highlands in the Caucasian region (4457 sq. miles) could be recognized as such. Nevertheless, international law does not allow territory to be obtained through an action involving the breach of international law which seems to be the case here, considering a presence on the territory was achieved after the war in 1994.
Secondly, in regard to the “permanent population” requirement, due to an absence of clear dispositions in international law, we shall refer to concepts such as self-determination and citizenship. On these topics, the highest relevant rules are given in the Constitution of NKR 2006,[5] where both concepts are addressed. However, international law has always interpreted narrowly the use of self-determination, and its revolutionary effect, which was usually used to justify different situations, mainly decolonisation.[6] In this case, although self-determination on its own would not suffice, if self-determination was used to oppose the violation on human-rights then it may be considered but this would require further analysis.
As for the third requirement, namely the need for a government, this concerns the need for exercising a certain degree of control over the population in the aforementioned territory. In Arstakh, state power is expected to be exercised following the principle of the separation of powers,[7] with the presence of a government, a national assembly and a judicial branch. Despite this, an assessment of this criteria would require a parallel independence test, but seeing as there is no clear interpretation in public international law as regards the government requirement, it is often misinterpreted with the concept of government recognition. These two are usually addressed through the mode of establishment and maintenance of the state itself.[8]Applying this to the current case, self-sustainability of NKR is doubtful seeing as it is so overly reliant upon the support of Armenia.
Overall, taking into account both the absence of clarity on the requirements provided by international law, and the doubtful factual situation, the statehood of NKR is highly doubted.
To further understand the situation from a political perspective, it is also important to address the position of the United Nations Organization. Despite their resolution having little to no binding force,
the decisions made by the institutions are nonetheless widely recognized and bear great authority amongst the international community. As of yet, there has not been any official document recognizing the region of Nagorno-Karabakh as truly independent. In fact, in three United Nations Security Council resolutions, namely S/RES/853-874-884, it has been recognized as part of Azerbaijan. Moreover, there is also a lack of binding relevant precedents. Indeed, the ICJ leaves ungiven an authoritarian answer in the international environment.[9]
Lastly, as concerns state practice, only 7 countries to date are currently recognizing Artsakh. Critically, however, none of these countries are UN member states and moreover, America has yet to recognize Artsakh. Surely, this could change after the French senate decision urging the recognition of independence, and with the beginning of Biden’s presidency, as both countries are involved in the OSCE Minsk group supporting a peaceful settlement of the conflict. Nevertheless, Artsakh’s state sovereignty is expected to remain doubtful, at least for the foreseeable future.
Sources
[1] Zürcher, Christoph (2007). The Post-Soviet Wars: Rebellion, Ethnic Conflict, and Nationhood in the Caucasus ([Online-Ausg.]. ed.). New York: New York University Press. p. 168. ISBN 9780814797099
[2] BBC News. 2020. Armenia-Azerbaijan: Why Did Nagorno-Karabakh Spark A Conflict?. [online] Available at: <https://www.bbc.co.uk/news/world-europe-54324772> [Accessed 26 November 2020].
[3] Montevideo Convention on the Rights and Duties of States ( adopted 26 Decemeber 1933, entered into force 26 December 1934) art 3. -6
[4] Rowan Nicholson, Statehood and the state-like in international law (1st edn, Oxford University Press 2019)
[5] Preface - Article 14.2 Constitution of nagorno-Karabakh 2006, http://www.nkrusa.org/country_profile/constitution.shtml
[6] Knop, K. (2012). Statehood: Territory, people, government. In J. Crawford & M. Koskenniemi (Eds.), The Cambridge Companion to International Law (Cambridge Companions to Law, pp. 99). Cambridge: Cambridge University Press. doi:10.1017/CCO9781139035651.008
[7] Article 6 Constitution of nagorno-Karabakh 2006, see http://www.nkrusa.org/country_profile/constitution.shtml
[8] Rosalyn Cohen, ‘THE CONCPET OF STATEHOOD IN UNDETED NATIONS PRACTICE’ [1961] 109(1127) UNIVERSITY OF PENNSYLVANIA REVIEW <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6971&context=penn_law_review> accessed 27 November 2020
[9] ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO (Advisory Opinion) 2010 < https://www.icj-cij.org/public/files/case-related/141/141-20100722-ADV-01-00-EN.pdf > accessed 26 November 2020
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