Where De Facto States Come to Rest: The Approaching Demise of the So-called Republic of Artsakh

[Victor S. Mariottini de Oliveira is a PhD candidate in International Law at the Geneva Graduate Institute, Switzerland]

Introduction

On September 19th 2023, Azerbaijan launched a military operation targeting separatist positions in the contested region of Nagorno-Karabakh, a breakaway territory of Armenian majority located within Azerbaijan’s internationally recognized borders. The “anti-terror” operation orchestrated as a response to alleged infrastructure sabotage activities carried out in parts of Nagorno-Karabakh under the control of Russian peacekeeping forces came to a halt in the following day with the separatist leadership agreeing to the terms of a new ceasefire agreement mediated by the peacekeepers. The operation claimed an estimated 200 lives and 400 wounded among ethnic Armenian military formations and civilians. The authorities of the so-called Republic of Artsakh agreed to “lay down their arms, leave combat positions and military posts and completely disarm”, surrendering heavy equipment and disbanding in coordination with the Russian peacekeeping contingent, in a move of seemingly unconditional capitulation.

Amid fears of an imminent genocide, a mass exodus of civilians has begun – thousands flanked by Red Cross vehicles have cut through the mountains to seek shelter in Armenia during the last few days. Inevitable changes are fast approaching for the Armenians of Nagorno-Karabakh as the foundations of the secessionist entity in which they have lived for nearly 30 years collapse. The so-called Republic of Artsakh, an unrecognized or de facto state, had its 1992 declaration of independence from Azerbaijan consolidated through victory in the First Nagorno-Karabakh War (1991-1994) which resulted in exclusive territorial control over practically the entire territory of the former Nagorno-Karabakh Autonomous Oblast as well as most of seven adjacent districts. After a drastic territorial reduction caused by the 44-day war (2020) and many months of humanitarian strain connected to the Lachin corridor blockade (2022-present) and Azerbaijan’s non-compliance with ICJ’s provisional measures on the matter, the recent attacks were the last straw pushing Artsakh authorities to the negotiation table. In fact, the very next day saw a convoy of the separatist leadership travel to a neutral location in Azerbaijan to start engaging in reintegration talks.

In the morning of 28 September, the so-called Republic of Artsakh announced that its formal dissolution will take place on 1 January 2024. Ruben Vardanyan, the separatist leader, has been arrested by Azerbaijani authorities on charges of terrorism financing, among other crimes. As the so-called Republic of Artsakh lies on its metaphorical deathbed, the present piece offers insights on the legal condition and disputed nature of de facto states, highlighting the systemic vulnerabilities favoring their demise in a world of recognized states, exemplified by the non-observance of the 2020 ceasefire agreement and the imminent reintegration of Artsakh.

De Facto States and International Law

Unrecognized, de facto, or contested states are terms commonly used in reference to secessionist entities that control territory, provide governance, receive certain popular support, persist over time, and seek widespread recognition of their proclaimed sovereignty – and yet fail to receive it. Despite existing and operating in the limbo world of non-recognition due to their disputed nature and origins, scholars working on the issue largely accept the use of the term state in addressing such entities, as they prima facie satisfy the Montevideo criteria of statehood under international law – and in many ways they act like typical states, ultimately aspiring to confirm their status through widespread recognition. The study of these entities is part of a larger literature on “sovereign anomalies” that exemplifies how subjectivity in the international system is more diversified than conventionally assumed, reinforcing how “widespread exceptions to the rules of absolute, indivisible sovereignty, exercised equally by all states, can be” (p.41). Binary conceptualizations of geopolitical entities as either nation-states or anomalies fail to embrace the constellation of different forms of political organization in the contemporary international system. 

The existence and mysterious persistence of de facto states has triggered a rich research agenda in international relations on sovereignty, territory, self-determination, statehood, nation-building, alternative forms of political authority, and international legitimacy, especially in the context of civil wars and secessionist movements. And while much progress has been made in addressing the external and internal dynamics driving the creation, development, and evolution of such entities, significant problems persist in conceptualizing them normatively against the backdrop of a highly state-centric discipline such as international law. The latter faces great difficulties in accepting that “there is life” beyond widely recognized statehood and that unrecognized but effective territorial entities claiming statehood represent a peculiar category that merits further exploration beyond the ritualistic condemnation of their illegality. In fact, such entities often “present an existential paradox in their simultaneously transgressive and mimetic qualities: they both challenge the international state order by violating de jure borders and replicate them by seeking to exhibit the normal appearance of a state” (p.59).

There is no clear consensus on how such entities should be treated in international law. While some argue that contested or unrecognized states are entitled to the same fundamental rights and protections as recognized states, including (somewhat paradoxically) the right to self-determination and territorial integrity that they “successfully” violated in respect of their parent-states by establishing a new order, others seem deny this completely. The situation is further complicated by the fact that recognition of statehood is often a political decision rather than a legal one – while international law provides some guidance on the criteria for statehood, the decision to recognize and engage with a particular entity as a sovereign state is ultimately left to the discretion of its peers.

Unrecognized or de facto states face great suspicion and are invariably prevented from joining most international organizations, thus failing to take their place as members of the international community of states. Their common struggle is generally connected to the mode of state creation undertaken, which explains why such entities sit outside the system. Unlike entities originating from consensual merger, separation or absorption, such entities face recognition challenges normally connected to unilateral secession, a maneuver which is repudiated on grounds of territorial integrity violation and sometimes illegal use of force. The victimized narratives of these entities relying on external self-determination have found limited resonance internationally. In previous centuries, the international community was inclined to welcome territories that had seceded and managed to secure their objective existence as independent states, having, in other words, proven their de facto statehood. However, since the end of the Second World War and the establishment of the UN system, a fundamental shift in the way states respond to secession took place. With rare exceptions (e.g., Bangladesh and arguably Eritrea), unilateral acts of secession have been vehemently condemned ever since. Despite the existence of scholarship that considers secession to be neither expressly accepted nor prohibited in international law, it seems that secession and its results have not been regarded as neutral primary facts in the last seven decades. Rather, secession has been negatively regarded and legally repudiated outside the contexts of decolonization or foreign occupation, and its potential disruptive effects have been thoroughly reported.

The stark contrast between their effectiveness and their lack of recognition contributes to de facto states being regarded as a pathological type of political arrangement, insofar as they appear to challenge the doctrinal certainties surrounding statehood and law-fact interaction. Although it has been asserted that international law can accommodate unrecognized states by conceptual means, as it is a flexible system adaptable to new developments, these entities have been for the most part shunned and stigmatized, being unable to engage with recognized states in a satisfactory manner – their blurred legal status paired with a complicated reputation of corruption, criminality, and poverty have contributed to their ostracism. From Northern Cyprus to Somaliland, South Ossetia and Abkhazia, there are millions of people living in these places suffering from a lack of international cooperation, whose negative effects range from economic isolation and limited access to humanitarian aid, to travelling difficulties connected to the use of unrecognized documents.

Artsakh’s Suffocated Statehood: The 2020 Ceasefire Agreement Down the Drain 

I have argued elsewhere that contemporary ceasefire agreements have now overcome the precariousness of a mere truce through State practice. The belligerent parties are divested of the right to renew military operations even if the agreement does not introduce peace in the full extension of the term, as questions of title to territorial sovereignty may remain outstanding. When the parties to a conflict reach a ceasefire agreement, the absence of an impending harm frustrates the ratione temporis requirement of immediacy in self-defense as a feature of the broader requirement of necessity in lawful uses of force, pursuant to Article 51of the UN Charter.  In other words, a ceasefire agreement creates a new objective status quo that pushes all belligerents back into compliance with the principle of non-use of force in international relations, particularly in settling territorial disputes, as expressed in Articles 1(1) and 2(3) of the UN Charter and Principle I, UNGA Resolution 2625 (XXV). 

The 2020 ceasefire agreement which put an end to the so-called Second Nagorno-Karabakh War, which resulted in Azerbaijan recovering roughly seventy five percent of the territory previously detained by Armenia and the so-called Republic of Artsakh, saw the attribution of a Russian military contingent to guard the armistice lines laid out in the same agreement, determined by the positions held by all parties when the deal was struck (Article 4). As such, neither Armenia, Azerbaijan, Russia, or any other actor could, from that moment onwards, lawfully change the situation on the ground unilaterally as established by said agreement. 

However, taking advantage of Artsakh’s unrecognized character and Armenia’s full retreat into its own territory, the, the Azeri leadership saw a window of opportunity with Russia’s attention is now focused elsewhere. With the comic replacement of the 2020 ceasefire agreement by a new one implying capitulation only a day after its violation by Azerbaijan, the so-called Republic of Artsakh became essentially a victim of a violent reintegration (p.57) with no one to come to its rescue, as Russian peacekeeping guarantees proved empty. As the separatists lay down their arms after nearly 30 years of separate existence from Azerbaijan, Artsakh now faces government dismantlement, loss of territorial control, and even a population exodus for fears of ethnic conflict, with the prospects for its statehood (ever so dependent on Armenia and diaspora support) being dire for the coming months. While the use of force by Azerbaijan was frowned upon by the EU and some UNSC members, the so-called Republic of Artsakh slowly but surely goes down in history, arguably as the result of yet another international law violation. 

Artsakh’s complete lack of international recognition contributes to a limited understanding of the legal standing and capabilities it should enjoy under international law. Consequently, many States that support the ethnic Armenians prefer to avoid engagement with their self-proclaimed entity, or do so in informal or suboptimal conditions for fear of incurring in undesired “creeping recognition”. Thus, political caution favors inaction towards de facto states, even though the absence of a functional legal framework for cooperation with the “pariah entity” may pose far-reaching consequences to recognized states and their interests.

Violent Reintegration On the Way?

Following its illegal use of force and complete military victory, the Azerbaijani government renewed its intention to “peacefully reintegrate” Nagorno-Karabakh without specifying what that entails. Promises to protect the rights and security of new Armenian citizens upon the dissolution of the separatist Republic, in accordance with Azerbaijan’s international obligations, hardly enjoy any credibility among a frightened and warn-torn population. No special status within Azerbaijan is envisaged for the region or its inhabitants. Aliyev’s “paradise” in Nagorno-Karabakh, which displaced thousands and left them in dire humanitarian conditions without electricity, medicine, fuel or food, left unanswered interim measures issued by European Court of Human Rights on September 22,  obligating Azerbaijan to “refrain from taking any measures which might entail breaches of their obligations under the [European Convention on Human Rights], notably regarding the right to life and the prohibition of torture and other degrading treatment or punishment.” Despite such efforts, it seems that the so-called Republic of Artsakh is closer than ever to joining Republika Srpska, Chechnya and Biafra in the cemetery of de facto states, rather than Bangladesh or Eritrea with an upgrade to recognized statehood and UN membership.