Superpower Responsibility for State Recognition: Charting a Course for Nagorno-Karabakh

27 Pages Posted: 1 Apr 2012 Last revised: 23 Jun 2014

Date Written: March 30, 2012

Abstract

Nations routinely refrain from intervening in one another’s domestic affairs out of mutual respect for territorial integrity and international comity. On this basis, the international community has since 1994 determined to not recognize the Nagorno-Karabakh region (NKR) as independent from the Republic of Azerbaijan, with the understanding that this view might change if an OSCE-sponsored negotiation effort determines that NKR should gain de jure independence rather than obtain a semi-autonomous status within Azerbaijan. By contrast, some of the world’s leading powers have quickly recognized or dismissed similar independence struggles, where doing so was guided by their own strategic interests without respect for fellow states’ territorial concerns. Among other reasons, Great Power favor has been curried due to humanitarian concerns that implicate a responsibility to protect with its commitments to prevent, react and re-build.

In any case, recent experience in other religion- and ethnicity-based conflicts suggests that a wait-and-see approach in NKR is more likely to exacerbate and prolong regional tension and human suffering than to engender amity. Moreover, the precepts of the Montevideo Convention (MC) with regard to criteria for determining the existence of an independent state have become universally accepted and now form international law. In circumstances where there is some ambiguity regarding whether emerging states fall within the MC criteria, the leadership of the world’s superpowers (the “Great Powers” or “Superpowers”) in this regard is deemed dispositive. In practice, we find an established custom of the world community to engage with states that may or may not objectively meet MC’s defined legal criteria, but only if they are favored by the Great Powers politically.

Due to the influence of their decisions, such leading states can thus be said to have a heightened responsibility to facilitate conflict resolution and to elucidate acceptable objective criteria so that their determinations do not appear to be based only on self-interest or whim. In light of United Nations Security Council’s Article 41 and 42 resolutions’ binding effect, the permanent members of the Security Council – the United States, the United Kingdom, Russia, China and France – are members of this group along with other G-8 nations: Germany, Italy and Japan.

The purpose of this Article is to criticize the international community’s current wait-and-see approach with regard to NKR and OSCE talks, and to suggest an alternative by drawing on the lessons of historical recognition efforts and existing scholarship on NKR’s self-determination efforts. Rather than continue to hope for an OSCE outcome twenty years after talks began, the Great Powers have an independent responsibility to keep up the pressure by overseeing the transition unilaterally. Moreover, this responsibility requires that the Great Powers not base decisions solely upon their own geopolitical interests; instead, international customary law (ICL) and regional custom governing former Soviet states obligates them to abide by norms that might lead to outcomes counter to their own preferences. The failure of the international community to act when needed is a failure of the international system itself, and can have far-reaching repercussions. The Great Powers must therefore act when they have a duty – express or implied by their role in the international system – to do so.

After placing the NKR struggle in historical context, we review the value of diplomatic recognition and proceed to query whether international law and custom mandate such recognition if MC criteria have been satisfied. Next, do the Great Powers have an enhanced responsibility to unilaterally engage with NKR, in spite of the OSCE-led negotiation effort or any concerted action through the United Nations? The paper concludes that custom mandates Great Power diplomatic engagement with NKR – though not necessarily recognition – with the expectation that such direct engagement will lead to a relatively quick resolution. Specifically, a referendum will likely indicate popular preference for annexation by Armenia. The ultimate decision to recognize NKR – or not – continues to rest within the decision-making ambit of each individual Great Power that chooses to actively engage with NKR.

Keywords: State Recognition, Montevideo, Nagorno, IHL, Azerbaijan, humanitarian law, force, Armenia, custom, international law

Suggested Citation

Chhabra, Amit K., Superpower Responsibility for State Recognition: Charting a Course for Nagorno-Karabakh (March 30, 2012). 31 Boston University International Law Journal 125 (2013). Available at SSRN: https://ssrn.com/abstract=2031805

Amit K. Chhabra (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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