Reverse Order of ‘De Facto’ and ‘De Jure’ in NKR

Nevertheless, short-term calculations seem to dominate the regional political scene against the backdrop of the geopolitical turbulence caused by the on-going conflict in Ukraine. Some officials from the Russian Duma went so far as to approve of the dissolution of the de-facto state from the perspective of putting an end to hostilities, something that masked a Russian failure to admit the tragic consequences of their peace-keepers’ inaction.

To make matters worse, it became obvious that the international law and institutions undergo a major structural shift-resolutions of supranational bodies and courts fall on deaf ears, while human security is increasingly vulnerable and largely unprotected. To be precise, the Parliamentary Assembly of the Council of Europe adopted Resolution 2508 on June 22, 2023, which explicitly stated that, “since 12 December 2022, the Armenian population of Nagorno-Karabakh, in Azerbaijan, has been denied free and safe access through the Lachin corridor, the only road allowing them to reach Armenia and the rest of the world. This has had serious human rights and humanitarian consequences, notably regarding freedom of movement, non-discrimination, access to healthcare and food, the right to family life and to education.”

The adoption of the resolution preceded a large-scale aggression against Artsakh in September 2023, which was strongly condemned in another resolution of the Council of Europe. Interestingly, in its declaration that condemned the Azerbaijani military operation against the people of Nagorno-Karabakh adopted on October 17, 2023, the Spanish Senate explicitly admitted the death of hundreds of Armenians, a massive exodus of the population (which implies forced displacement) and reminded Azerbaijan of the fact that it is a party to the UN Convention on the Prevention and Punishment of the Crime of Genocide, a rstraightforward allusion to the genocidal nature of the aggression. Earlier in the year, on February, 22, the International Court of Justice “ordered Azerbaijan to take all necessary measures to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.”

Unfortunately, the power dynamics in the region resulted in a catastrophe that has further exacerbated the situation. As a result of the combination of Russian inaction and Western feeble attempts to discipline Azerbaijan, an energy-rich precious partner of some of Europe, the region was emptied — through horrific crimes — of its indigenous population for the first time in millennia. Furthermore, Many ancient Armenian Christian monuments — a beloved cultural patrimony of native Armenians-are now in danger of destruction or appropriation (the precedent was set back in 2006 in Old Jugha, Nakhijevan).

A look at the past reveals the Armenians have traditionally tried to please both the West and Russia in the hope that the inalienable right to self-determination will eventually triumph. Victorious but equally short-sighted diplomatically, the Armenians could have adopted a much more robust diplomatic stance, perhaps a much less desirable foreign policy option from the perspectives of Moscow and the West but a more surefire way to be understood in major capitals in terms of national interests and aspiration. Why was the legitimacy of the pre-war NKR borders not a subject of negotiations considering the fact that the territories adjacent to Nagorno-Karabakh were not even firmly embedded in Azeri jurisdiction?

To reaffirm his constructive and flexible but staunchly pro-Armenian profile, Armenia’s former president Serzh Sargsyan, who was ousted as a result of the Velvet Revolution of 2018, wrote an article on July, 6, 2021 stating that, “the international community should not recognize the outcome of the Turkish-Azerbaijani aggression but it should make efforts to reach a real, comprehensive and long-lasting resolution.”

In a similar fashion, President of NKR, Samvel Shahramanyan, who had signed the decree of the liquidation of NKR earlier, told journalists and angry protesters later in Yerevan, “the Republic of Artsakh is not liquidated. No document can liquidate what was established by people.” Obviously, Mr. Shahramanyan, too, referred to the right of self-determination and the possibility of legal-institutional existence of the Republic of Artsakh upon its physical disappearance.

This means Samvel Shahramanyan can potentially rescind his own order regarding the liquidation of NKR and be deposed, reelected or otherwise subject to institutional checks on the part of the National Assembly of Artsakh whose members might not be in Nagorno-Karabakh any more but continue to the elected representatives Karabakh Armenians.

For around three decades, at least since the inception of the contemporary stage of the conflict in 1988, the Armenian side believed its claim to national self-determination was well-grounded in the context of international law, hence inviolable. With the benefit of hindsight, it might have been more prudent of the Armenians to take the bull by the horns and condemn Joseph Stalin’s policy towards the political fate of Nagorno-Karabakh. After all, the policy of decolonization spearheaded by the UN in the 20th century had ushered in the series of independences. Why did the arbitrary transfer of Nagorno-Karabakh to the jurisdiction of Soviet Azerbaijan have to be discussed outside the realm of decolonization when it met at least some of the criteria espoused by the UN?

Ironically, the Soviet Constitution stipulated the right of self-determination, too, and while it was obvious such a possibility was more political than legal, it made the Armenians contemplate political realities in the light of legally admissible frameworks shrouded in intangible realism. This policy of pleasing both Russia and the West, disarticulating national interests and a highly amenable foreign policy would mask the deep-running inconsistencies for decades to come. Indeed, Yuri Barseghov, an award-winning Soviet professor of international law and a former member of the United Nations International Law Commission, published a book back in 1990-before the collapse of the USSR, linking self-determination to the ideology of Vladimir Lenin, which had later been turned upside down by the arbitrariness of Joseph Stalin. Thus, at an odd crossroads of history the Helsinki Final Act was, at least with regard to national self-determination, related to Lenin’s ideology or so the Armenians might have thought.

After centuries of statelessness the Armenian diplomacy was in a precarious condition upon independence. It had to grapple with the formidable West and jealous Russia at the same time paving the way for the recognition of its rights. Nevertheless, it seems the Armenian diplomacy miscalculated the possibility of the long-term concentric evaluations of Russia and the West making a strategic blunder: Russia and the West would not always agree and, by extension, would not always perceive Armenia’s duality approvingly. To be specific, Armenians gave up on the idea of the reunification of the former Nagorno-Karabakh Autonomous Oblast with the homeland. Further, they neither recognized the independence of Nagorno-Karabakh nor brought the issue of the legitimacy of its post-1994 borders to the table of negotiations.

“What is the way forward ?” one might ask. A government in exile? Recognition of NKR in pre-war borders? A new cycle of international mediation aimed at the implementation of self-determination and return of Karabakh Armenians? We are convinced that reversing “de facto, then de jure” will not turn back the time but will celebrate and perpetuate the right of Karabakh Armenians to determine their fate in their homeland. And this comes at a moment in history when the EU needs to prove its status and reach as a great power to be reckoned with.

(Garik Poghosyan is a PhD candidate at the Public Administration Academy of the Republic of Armenia in political science. In 2021 and 2022, he taught political anthropology to master’s students in the same institution. He teaches English at Global Bridge Educational Complex in Yerevan.)