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ON THE QUESTION OF RECOGNIZING THE NAGORNO-KARABAKH REPUBLIC: HOPES AND ILLUSIONS
asbarez
Monday, December 5th, 2011
Dr. Ara Papian
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
From: A. Papazian
asbarez
Monday, December 5th, 2011
Dr. Ara Papian
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
From: A. Papazian