By Hrachya Arzumanyan
The ceasefire of 2020 created a number of diplomatic and political problems in relations between Artsakh and Armenia and in the international arena. The relationship between the Republics of Armenia and Artsakh remained unregulated for the post-Soviet period when the Armenian state approached the war with uncertain legal status in relations between the two republics. Winning countries having resolved the problem of Artsakh within the framework of politics and the strategy of “fait accompli” which have formulated the results of the war that were signed by Armenia’s Prime Minister creating legal, diplomatic and political collision while disfranchising the residents of Artsakh from political and jurisdiction rights. The Armenian statehood and the government need to start formulating their approach to the problem of Artsakh’s status change and its residents, and towards the future of the Artsakh conflict regulation.
The signing of a trilateral ceasefire in the Artsakh war in 2020 which stopped large-scale military actions, created a number of legal, diplomatic and political problems both in relations between Nagorno-Karabakh and Armenia and in the international arena. One of the fundamental issues is the relationship between Armenia and Artsakh when the latter is denied the right to any status within the context of the Russian armed forces’ deployment and the creation of a joint Russian-Turkish observation center in Nagorno-Karabakh.
1. Legal aspects of the Nagorno-Karabakh settlement in the post-Soviet period
The problem of relations between the Republic of Armenia and Artsakh remained unresolved throughout the post-Soviet period. Following the commitments assumed within the OSCE Minsk Group framework, Armenia did not recognize Artsakh, the status of which was the subject of negotiations. This behavior was perceived by the parties to the conflict and the mediators as a demonstration of the constructiveness of the Armenian side and its readiness to settle the problem through peaceful diplomatic methods. Armenia, without formalizing relations with de facto existing Artsakh in the legal field initiated the process of unification of the two Armenian states within the framework of united Armenia, the legal status of which was also not determined. The highest bodies of state power of the united Armenia de facto were the Republic of Armenia’s affiliated institutions.
Perhaps we are talking about the Armenian government’s inexperience and the lack of understanding of the importance of legal establishment of relations between states, even if one of them is not recognized. Moreover, the legislation of the Republic of Armenia allows concluding international treaties with unrecognized states. The Artsakh problem remains the most important element of power and public opinion in Armenia. Under such conditions, the Armenian authorities preferred not to formalize relations with Artsakh. As a party to the conflict, Artsakh already had a certain status in the international arena within the OSCE Minsk Group framework. Yerevan strived to concentrate in its hands all aspects of the life of Artsakh and “the Nagorno-Karabakh settlement process” while avoiding legal formalization of relations that would have raised the subjectivity of Artsakh. Yerevan viewed such steps as a potential threat to the authorities. Armenia’s recent political history confirms the validity of such fears since the change of power in Armenia has so far, one way or another, have been initiated by the processes around Artsakh.
Thus, before the resumption of 2020 war in Artsakh, within the framework of the Armenian statehood, a united Armenian state was formed made up of the Republic of Armenia and Artsakh, the creation of which was not formalized by any framework interstate agreement. United Armenia’s functioning took place based on agreements between individual ministries and agencies of its member states, regulating relations in a particular sphere. A paradoxical situation developed from a legal point of view when an existing state was not formalized and was absent not only in the international but also in the Armenian statehood’s domestic arena.
In the international arena, the legal problem of the status of Artsakh emerged after the Republic of Armenia adopted the Declaration of Independence in 1990. Specifically, when joining international organizations such as the UN, OSCE, CIS and after adopting the state constitution Armenia declared its commitment to the borders of Soviet Armenia even though its declaration of independence proclaimed the unification of Artsakh with Armenia. International organizations were not informed of this contradiction between the Declaration of Independence and other Armenia’s constitutional acts. The resolution of the legal issue was postponed for the future, possibly in the hope of resolving it after a political and diplomatic settlement around Artsakh was reached.
Similar problems also developed in the political and diplomatic spheres. Since 1995, Yerevan has consistently concentrated in its hands all aspects of the Nagorno-Karabakh conflict settlement without formalizing its activity in the legal domain. There was a paradoxical situation when the Armenian authorities de facto decided on the settlement of the problem while not bearing any legal responsibility for the decisions made. The Armenian side’s behavior suited the Co-Chairs of the OSCE Minsk Group and Azerbaijan, although categorically opposed Armenian interests. The consequences of such impermissible recklessness were visible during the signing of the ceasefire declaration on November 9, 2020, when the Prime Minister of Armenia signed it even though he didn’t have any legal basis for making decisions concerning the fate of Artsakh.
2. Legal aspects of relations between the Republic of Armenia and Artsakh during and after the 2020 war
Thus, as a result of the Armenian authorities’ behavior throughout the entire post-Soviet period, the Armenian statehood approached the war of 2020 with an undefined legal status of relations between the Armenian states. Furthermore, the united Armenian state’s legal status was not determined. The existence of united Armenia was never reflected in any Armenian statehood’s legal or political documents, except for several joint meetings of the Security Council of Armenia and Artsakh in 2019-20.
The Armenian states did not conclude a framework state treaty that would make it possible to formalize the Republic of Armenia’s presence on the territory of Artsakh. Although Armenia was the guarantor of Artsakh’s security in the negotiations within the OSCE Minsk Group framework, its status as the guarantor of Artsakh’s security was never formalized in the legal field and interstate relations. Through its actions undertaken during the post-Soviet period the Armenian government created a gray zone in the legal, political and diplomatic arenas, which played a fatal role in the Artsakh war of 2020.
The lack of formalities in relations between Armenia and Artsakh allowed the victorious countries to insist on Armenia’s signature despite the fact that the Artsakh Defense Army fought that war with the support of volunteers from the Republic of Armenia, not regular troops of the Armenian armed forces. The Nagorno-Karabakh problem was resolved exclusively by military means in violation of the principles of peaceful settlement espoused by the OSCE Minsk Group. The text of the surrender excluded the very subject of negotiations – the status of Artsakh. This form of surrender by the Armenian side creates many political and legal problems that require correction.
First of all, there is a problem with the status of the authorities of the former Republic of Artsakh, which was denied the status of a de facto existing state. Today, on the territory of Artsakh, the ruling administration does not have the status of a state with which the Russian armed forces interact. The institutions of the executive, legislative and judicial branches continue to function by inertia as the status of these institutions has not been determined. The status of state institutions could be preserved if the Artsakh parliament makes a decision to directly rule the country, but it is unlikely that the Artsakh parliamentarians would take such a step.
The victorious countries having solved the Nagorno-Karabakh problem within the framework of the “fait accompli” policy and strategy, formalized the results of the war with the signature of the Prime Minister of Armenia which created a legal, diplomatic and political collision as result of which the population of Artsakh got deprived of any civil, political and legal rights and has ceased to exist as a subject of diplomatic, political and legal relations. If earlier the rights and obligations of the inhabitants of Artsakh were formalized within the framework of de facto institutions existing, but not formalized in the legal and political fields of united Armenia and Artsakh, now there is a need to formalize these relations due to the cessation of the existence of these state formations, at least on legal and political arenas.
It is necessary to clarify and formalize relations between Armenia and Artsakh as it is no longer possible to postpone this problem until after resolving the issue. Armenia is obliged to formulate its attitude towards the liquidation of the united Armenian state, which came under the control of the armed forces of Russia, Azerbaijan and Turkey, and to qualify this control. For example, is such control an occupation, a counter-terrorist operation, a peace enforcement operation, a peacekeeping operation, etc.? Additionally, a number of statements made by the top leadership of Artsakh make it possible to speak of the latter’s intention to achieve complete independence from Armenia. In such conditions, it becomes necessary to determine the relationship between the Artsakh Defense Army and the united Armed Forces of Armenia and Artsakh, which existed before the war. Similar problems arise in the relations of all state authorities of the de facto united Armenia.
The problem of citizenship of the population of Artsakh, which today is Armenian and is determined by the Republic of Armenia’s passports, turns out to be extremely serious. Will a decision be made to retain or revoke citizenship? If citizenship is revoked, then this category of Armenian citizens will need to be offered an alternative choice. For example, will they be offered to take citizenship of Azerbaijan, Russia or UN international passports? Ignoring this problem will lead to the fact that the inhabitants of Artsakh will be deprived of their citizenship and thrown into legal oblivion.
3. Legal aspects of the Artsakh settlement. Possible future
Thus, the Armenian statehood and authorities need to start formulating their attitude to the problem of the changed status of Artsakh and its population. A number of Western countries are inclined towards the need to restore the status quo in political and legal arena which was present in 1994. Is this approach acceptable for Armenia and Artsakh, or will the Armenian statehood choose a different approach? In any case, as of today the Artsakh authorities have refused to meet with the American and French Co-Chairs of the OSCE Minsk Group since the end of the war.
Russian secured ceasefire of November 9, 2020 had restored the status quo of 1989-90, when self-government bodies’ functioning was stopped and liquidated within the NKAO as a subject of state and law with the creation of a Special Management Committee headed by Arkady Volsky, which was directly subordinated to Moscow. Azerbaijan, being forced to accept Moscow’s decision, intended to liquidate the Committee in the future without restoring the autonomous status of Nagorno-Karabakh. In the current situation, the Armenian side took the initiative into its own hands when Artsakh, within the Miatsum movement framework, was declared to be part of the Republic of Armenia in its 1990 Declaration of Independence.
Parallels can be drawn between this period of Armenian history immediately before the USSR’s collapse and the present one. Like previously, we can talk about a transitional period after which Artsakh will either completely disappear as a subject of politics and law or acquire a qualitatively different status for the coming decades. Moreover, an important role will be played by those who will own the initiative to form a new legal and political reality. In contrast to the period of the collapse of the USSR, the initiative now belongs entirely to the winning countries, not Armenia.
Although the adoption of the Declaration of Independence of Armenia presupposed a solution to the Artsakh problem through Miatsum, later the Armenian authorities abandoned this approach, choosing the path of developing Armenian statehood within the framework of Soviet Armenia and building two Armenian states. As the Artsakh war of 2020 shows, this path turned out to be a dead-end and did not allow the Armenian people to resolve the Artsakh problem in an acceptable way. Perhaps under current circumstances, it makes sense to return to the consideration of the scenario where the Armenian state chooses to restore the status quo that was present by the time of the Declaration of independence and the accession of Nagorno-Karabakh, which presently doesn’t have any status, back to Armenia while overcoming resistance not only from Russia and Azerbaijan but also Turkey.
On the other hand, it may make sense for the Armenian statehood to choose a more conceptual approach and solution when Armenia declares its legal succession to the First Republic. This step leads to the elimination of the Nagorno-Karabakh problem, which took shape in the process of the creation of the USSR and as a consequence, the status problem itself. In this case the problem in the international legal domain will not be solved but removed within the framework of the de jure and de facto recognition of the first Republic of Armenia (1918-1920) by the League of Nations when Artsakh was a part of Armenia.
Noting the end of not only the Soviet but also the post-Soviet period and developing a strategy for the Armenian statehood to overcome the consequences of the Artsakh war in 2020, it seems appropriate to choose a strategy for restoring the status that was present before the emergence of the USSR. In this case, the new settlement framework would be built on international treaties signed after the end of World War One and the decisions of the League of Nations. Azerbaijan recognizes itself as the legal successor of Democratic Azerbaijan and appeals to this basis. Armenia’s consent to move to the same basis will create the necessary legal prerequisites for overcoming the consequences of the 2020 war by legitimizing Armenia’s signature under the armistice agreement and forming a new framework of Artsakh conflict settlement at the same time. A framework that will be outside of the Soviet and post-Soviet periods when Armenia and Azerbaijan were recognized as parties to the conflict.
Author’s Bio: Hrachya Arzumanian, Doctor of Political Science, Ph.D. in Computer Sciences. Academic Fields: Complexity thinking in Policy, Strategy, National Security and Military sphere. The author of ten books and more than 300 papers, articles and reports. Former Adviser to the Minister of Foreign Affairs of Artsakh (2006 to 2020). The chief of branch on preparation of work of Security Council of Artsakh (2006-2008). The Chief of IT Service of Artsakh Defense Army from 1995-2001.