An Illegal Republic: the Challenges of the Formation and Proliferation of the Legal Identity of Karabakh Armenians

About the author(s):

Dr. Kamal Makili-Aliyev is a human rights scholar and senior lecturer at the University of Gothenburg’s School of Global Studies. He is a human rights generalist that has a special interest in the resolution of armed conflicts and questions of sustainable peace and security. He has written extensively about the Nagorno-Karabakh conflict including its legal, humanitarian and political aspects. Dr. Makili-Aliyev is the author of Contested Territories and International Law, published by Routledge in 2020.

At the end of the 1980s, the Soviet Union was in turmoil. One problematic instance of the overall crisis was the conflict breaking out between Armenians and Azerbaijanis over the Nagorno-Karabakh Autonomous Oblast (NKAO). NKAO was an enclave populated predominantly by ethnic Armenians within the territory of the Azerbaijan Soviet Socialist Republic (AzSSR). Its administration, with the support of the authorities of the Armenian Soviet Socialist Republic (ArSSR), was trying to change the status of NKAO, remove it from AzSSR and include it in ArSSR. This met with the resistance of the authorities of AzSSR and the leadership of the Soviet Union in Moscow. What has become known as the Nagorno-Karabakh conflict is one of the most difficult and violent conflicts that continues as a result of the dissolution of the Soviet Union. 

While the Nagorno-Karabakh conflict has not attracted as much attention as some other contemporary conflicts, a small but interesting body of scholarship has built up around it. However, even this important work has largely overlooked the question of the legal identity of Karabakh Armenians. The significance of this identity is that it was formed in very specific conditions. Unlike some other unrecognised or partially recognised states (for example  Kosovo, Taiwan, South Ossetia or Abkhazia), Karabakh Armenians’ political entity “the Nagorno-Karabakh Republic” (hereinafter NKR, but also called “the Republic of Artsakh”) was created in a way that made it impossible to call it even a de facto state, unable to meet the criteria of the Montevideo Convention. And yet, NKR presented itself as a state (although based on the above an “illegal republic” may be a better term) and was able to establish institutions that helped in forming the legal identity of Karabakh Armenians.

Legal identity in a space between two states

The phenomenon of the legal identity of Karabakh Armenians that formed in a space between two conflicting states (where the entity stuck in that space cannot demonstrate clear legal features of a state) requires closer inspection. This is because the current situation of Karabakh Armenians and the NKR helps us to understand the interdependence of legal identity per se and a functioning state. This can be done by describing and discussing the formation of legal identity in such an entity, what this type of legal identity consists of, what kind of challenges the entity and associated legal identity face and what the development of legal identity looks like, and can look like, in the future. As such, legal identity is understood and discussed here both narrowly – as recognition of a person before the law – and in a broader sense: as the ability of a group to form a legal identity through establishing laws and institutions. 

For Karabakh Armenians forming their own legal identity was a crucial question. Even its kinstate Armenia did not recognize NKR and that would mean that Karabakh Armenians would otherwise remain in a legal limbo. They were also hoping that a clear and visible legal identity would pave the way for the recognition of NKR as a state. Consequently, between 1994 and 2020, Karabakh Armenians created institutions resembling those of a state, issued identification documents to its population, collected taxes (although it is unclear how much those were integrated with Armenia’s finances), established a system of social welfare, conducted local elections and built up a body of legal acts, including a constitution and other parliamentary acts. This allowed the population of the territory to have access to some rights and obligations in a similar way that would be expected from a recognised state. However, there were significant challenges to this process, and they came both from Armenia and Azerbaijan.

One of the main challenges was that the Republic of Azerbaijan claimed NKR as occupied territory under international law and refused to recognise its sovereignty as a republic. It continues to contest the legal identity of Karabakh Armenians. Likewise, preventing any kind of recognition of NKR has become a central aspect of the foreign policy of Azerbaijan. Simultaneously, Karabakh Armenians  have no physical access to Azerbaijan, as these people remain isolated from Azerbaijan by the line of contact between armed forces. These significant challenges have made it impossible for NK Armenians to utilise their legal identity outside the confines of the illegal republic.

To overcome this situation, Karabakh Armenians sought help from Armenia, a kinstate to the population of the territory. Armenia was able to provide an alternative legal identity to facilitate the contacts of NK Armenians with the international community. However, this creates another challenge and puts Armenia in a position to contest the internal legal identity of Karabakh Armenians, and indeed, even their autonomy when necessary. The territory was already economically, politically and militarily dependent on Armenia, but control over the external expression of its legal identity has allowed Armenia to effectively control the narrative NKR presented to the outside world.

Moreover, the international community, through the medium of the European Court of Human Rights has refused to recognise the identity of Karabakh Armenians. In its judgment in the case of Chiragov et al. v. Armenia, the Court found criteria of occupation in the conduct of Armenia in the territories of Azerbaijan, including those claimed by NKR. This made the construction of the legal identity of Karabakh Armenians legally questionable. Furthermore, in 2020 when Armenia was militarily pushed out from Azerbaijan and NKR lost most of its claimed territories, the NKR and Karabakh Armenians’ legal identity became extremely vulnerable. Presently, the chances of independence for NKR are virtually non-existent and the influence of Armenia is significantly lower. Moreover, Armenia does not strive for the independence of NKR anymore, abandoning this goal in favor of building peace with Azerbaijan.

(In)dependent legal identity

Nonetheless, even after the change in status quo in 2020, Karabakh Armenians have been able to preserve their internal legal identity. This shows that their legal identity was not totally dependent on Armenia’s influence and protectorate. Nor was it impossible to construct an internal legal identity in an entity that lacked the legal features of a state. This may to a degree, present a challenge to Hannah Arendt’s predominance of nationality as legal identity. At the same time, such legal identity is exceptionally vulnerable. The recent blocking of the only road that connects the remains of NKR to Armenia shows how easily states can prevent external expressions of legal identity. Additionally, the internal legal identity of Karabakh Armenians is directly dependent on the outcome of the conflict between Armenia and Azerbaijan.

The negotiations between Azerbaijan and Armenia hint at the reintegration of the illegal republic of NKR into Azerbaijan, however, with the rights and security of Karabakh Armenians to be guaranteed in the process. This type of resolution seems to point to the possibility of the legal identity of Karabakh Armenians being  retained in some form even within the confines of the state from which they wanted to separate. If so, this new stage and transformation in the Nagorno-Karabakh conflict could potentially yield even more insights into the development of legal identity in unusual state-like entities and the possibilities of retaining unique legal identities even if their associated state-like institutions are dismantled.

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