Unrecognized States: International Law and Status

By Andrias GHUKASYAN
Political researcher
Yerevan 

All people on our planet are by birth vested with equal universally recognized political rights, including the fundamental right to independent determination of one’s own political status.

The internationally recognized right to self-determination is a collective right of the people, living on the territory, defined by the historically established international borders, freely and without external interference decide for themselves the question, whose state authority they are ready to obey  voluntarily.

Due to the specifics of the historic development, in  individual cases, such as with the USSR, the state also recognizes that a population of the  constituent territories of the federation or the autonomous entities, which are part of them, has the right to self-determination, i.e. some part of population in the state, living within the internal administrative borders, also may have the right to self-determination in the case when such a right is vested or preserved by the national legislation.

Thus the source of the right to self-determination for the population, living on the territories within international borders, is the international law; meanwhile the source of the right to self-determination for the population of a part of the state, living on the territories within the administrative borders, may be the national legislation. The Kosovo case provided a new precedent for application of the international law as a source of the right to self-determination. In the situation, when population of the administrative region is subjected to systematic race discrimination by the central government, the right to self-determination emerges as a way of self-defense, when all other ways of the peaceful settlement are fully exhausted.  

Declaration of independence is the statement of the authorized representatives of the people, based on the trust of the majority of the population of the given territory, on the readiness to establish a new state that would be independently hold the whole responsibility before the population for security of its existence and functioning of the fair social order. The international community explicitly recognizes that the source of sovereignty of the new state is the will of its people. The new state can be recognized as full subject of the international law within the borders, existing at the moment of gaining independence by its people, if the realization of the right to self-determination of that people does not contradict the principles of the UN Charter. The refusal of the people in realization of its right to self-determination, not contradicting the principles of the international law, is a human rights violation.

The recognition of independence of the new state is a declarative political act. The government of any internationally recognized state has the right to recognize the independence of the new state by means of publication of its appropriate statement, which means that the given government on the name of its people recognize the population of the new state as an independence political entity, and the state, proclaimed by it, as an equal personality of the international relations. The recognition of independence of the new state is irreversible in its nature and cannot be called back. The refusal to recognize a sovereign equality of the new state, created by the realization of its people’s right to self-determination in accordance with the principles of the UN Charter, is an unacceptable violation of the fundamental provisions of the Charter of that international organization. However, there is no any juridical mechanism of forcing a state to recognize the international legal status of the entity, i.e. the sovereign equality of the new state. 

The acquisition of the full-fledged international legal status by the new state is achieved via joining the UN Charter, which is an international treaty. The new state, wishing to become a UN member, has to get a political support of more than a half of the UN member states (97 states, at present), including:

–  five states, permanent members of the UN Security Council (Great Britain,China,Russia,USAand France), which have the right to veto in the Security Council;

– eight states, members of the UN Security Council.

The problem of existence of an unrecognized state in the post-Soviet space has been caused by the open violation of the principle of supremacy of the law and norms of the international law by the leaders of the union republics. On December 21, 1991, the heads of union republics decided inAlma-Atato terminate the effect of the USSR Constitution recognize the independence of union republics, at the same time denying the right of autonomous entities that were part of union republics to independently determine their political status. The member states of the OSCE and the UN Security Council, despite their international commitments to respect the right of the autonomies to self-determination, which was stipulated by the national legislation of theUSSR, actually supported that violation and recognized the independence of the union republics that were part of theUSSR.

The attempts to forcibly take away the right to self-determination from the population of Nagorno Karabakh, Abkhazia,South Ossetiaand Transnistria caused armed conflicts. The OSCE and UN created various formats to settle these conflicts, considering them as consequences of the attempt to secede of the newly independence states, established themselves on the territory of theUSSR. Consideration of the problem of unrecognized states through the secession prism allowed to the parties concerned draw a veil on the fact of the blatant violation of fundamental human rights during the collapse of theSoviet Union.

Secession is a radical way of settlement of the political conflict between groups of population within a state, when contradictions of their political demands to each other cannot be settled either by a treaty, or by force. The international community recognizes that incitement to the political conflict, breaking the political unity of the people in the other state, as a form of aggression. That is why the political conflict that emerged inside the existing state, first is its internal affair, the interference into which is prohibited by the international law.  When secession is declared by one of the conflicting parties as a way of solution of that conflict, it stops being an internal affair of the state and becomes an object of interest by the international community.

Secession means a division of the people of the given state, its territory, property, actives and responsibility for the international and national obligations that had been emerged before that. The secession may lead to handover of a part its territory by a state to another state, secession of a part of the territory of the state and formation of a new state on that territory, the dissolution of the state and formation of new states on its place. Thus it is apparent that the international engagement is inalienable political component of the secession. The international recognition of the secession is the universal recognition of the fact that the political conflict has not been broken out due to the external interference, resulted in the loss of unity by the people of that state and led to its division, which is the only effective way to guarantee the future development of all its parts.

Regarding the Nagorno Karabakh problem,Armeniaargues that secession is the necessary political way of settling such a conflict.Azerbaijaninsists that the formation of the NKR is a consequence of the Armenian aggression. Both these positions actually ignore the historic reality and are in contradiction with the norms of international law.Armeniacontradicts itself, stating that proclamation of the NKR independence was a legal political act, at the same time not recognizing the equality of the NKR’s rights and its sovereign equality.Azerbaijanrefuses to accept the responsibility for incompliance of the supremacy of the law during its secession from theUSSRand denying the Nagorno Karabakh population’s realization of its right to self-determination, which was preserved by theUSSRlegislation. The format of the Minsk Group allows both countries to sabotage their international responsibility by the UN Charter to hold negotiations on the settlement of the conflict in good faith. Such a situation makes Nagorno Karabakh fully dependent fromArmeniaand deprives the NKR from the political potential for the independent acquisition of its international legal status.

The violations of international law during the collapse of theSoviet Unionbecame a heavy load for the new political organization of the post-Soviet space. Taking into account the unsuccessful situation in all formats established for settlement of the post-Soviet conflicts, it is possible to conclude that the very existence of these unrecognized states is related with imperfection of history, not that of international law.

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