An illegal Republic: the formation and continuity of the collective legal identity of Karabakh Armenians

ABSTRACT

This article examines the formation and continuity of the legal identity of Karabakh Armenians as a group, focusing on the challenges they faced after the dissolution of the Soviet Union and the war between Armenia and Azerbaijan over Nagorno-Karabakh. Trapped between two newly independent states, Karabakh Armenians managed to establish their own legal identity while lacking a connection to statehood or even external recognition of their state-like entity. The study combines a descriptive qualitative approach with doctrinal legal analysis, considering the external and internal dimensions of collective legal identity and the legal system constructed by the group. Unlike other cases such as, for example, Taiwan and Macau, Karabakh Armenians faced hostile conditions and challenges to their identity from Armenia, Azerbaijan, and the international community. The article argues that their legal identity should be viewed from the perspective of access to rights rather than the legality of their self-constructed (illegal) entity. Although their external legal identity is contested, the internal legal identity maintains continuity and structures. However, the vulnerability of such constructed legal identities becomes apparent due to challenges to the external identity of Karabakh Armenians, risking the group’s ability to maintain its collective legal identity in case of reintegration into Azerbaijan.

KEYWORDS:

• separatism
• group rights
• Nagorno-Karabakh
• conflict
• quasi-state
• Taiwan
• Macau

Introduction

In the late 1980s, the Union of Soviet Socialist Republics (the Soviet Union or USSR) faced a profound existential crisis. Within this crisis, a conflict emerged between Armenian and Azerbaijani Soviet Republics over the Nagorno-Karabakh Autonomous Oblast’. Situated within the Azerbaijan Soviet Socialist Republic, the Nagorno-Karabakh Autonomous Oblast’ was predominantly populated by ethnic Armenians. Its administration, supported by the authorities of the Armenian Soviet Socialist Republic, sought to alter its status by seceding from the Azerbaijan Soviet Socialist Republic, and integrating it into the Armenian Soviet Socialist Republic. This met opposition from the Azerbaijan Soviet Socialist Republic authorities and the leadership in Moscow (Cornell 1999, 14–21). The struggle garnered significant support from Armenian populations in Armenia and Azerbaijan’s Nagorno-Karabakh Autonomous Oblast’, eventually transforming into a nationalist project that clashed with the internal power structures of the Soviet Union (Cornell 1999, 27–29). Thus, the Nagorno-Karabakh conflict emerged as one of the most challenging and violent conflicts resulting from the Soviet Union’s dissolution. The conflict led to mass forced population exchanges between Armenia and Azerbaijan while still under the Soviet Union’s governance (Cornell 1999, 14–21). Importantly, this conflict can be seen as a major factor contributing to the Soviet Union’s dissolution in late 1991, as it had already shaken the crumbling institutions of the Soviet Union’s power over its republics (de Waal 2003).

Following the USSR’s dissolution, Armenia and Azerbaijan, having become independent states, engaged in a war over the territory of the former Nagorno-Karabakh Autonomous Oblast’. Under the principle of uti possidetis juris,¹ the former Soviet republics were recognized within their former administrative borders (Peters 2014, 103–106) and by taking over Nagorno-Karabakh Autonomous Oblast’, Armenia occupied a significant portion of Azerbaijan’s territory (ECtHR (European Court of Human Rights) 2015, paras. 180, 186). While supporting their ethnic Armenian kin in the separatist struggle, Armenia also occupied seven regions of Azerbaijan neighboring the Nagorno-Karabakh Autonomous Oblast’. This situation persisted from 1994 until 2020 when Azerbaijan was able to regain most of its occupied territories through military means (Makili-Aliyev 2023, 216). However, during this period, the Karabakh Armenian minority (referred to as Karabakh Armenians) found themselves caught between two states, striving to secede from Azerbaijan, gain international recognition, and ultimately unify with Armenia. Aware that the international community would not recognize the annexation of another state’s territory, the Karabakh Armenian leadership declared the independence of ‘the Nagorno-Karabakh Republic’ in December 1991 (also referred to as ‘the Republic of Artsakh’ in later stages of the conflict’s progression). In this unrecognized state-like entity, the Karabakh Armenians have been forming their own legal identity as a collective, driven by the aim of facilitating the recognition of Nagorno-Karabakh Republic as an independent state, while mindful of legal challenges (Makili-Aliyev 2020, 1–30; Knoll-Tudor and Mueller 2020). It must be emphasized that Karabakh Armenians were once part of a broader legal identity along with the Azerbaijanis residing in the Nagorno-Karabakh Autonomous Oblast’ during the Soviet Union era. However, with the collapse of the Soviet Union, the legal systems of the Soviet Republics and their autonomous regions also disintegrated. Furthermore, as a result of the occupation of the aforementioned territories, all Azerbaijanis were forcibly expelled (de Waal 2003), leaving only the Armenian population to establish a new legal identity as a collective.

The phenomenon of the legal identity formation of Karabakh Armenians, emerging within the space between two conflicting states where the entity lacks clear legal characteristics of a state, merits thorough examination. Such analysis has the potential to enhance our understanding of the interplay between a broader understanding of legal identity and the functioning of a state. To achieve this, this article explores the formation, composition, challenges, and overall development of the collective legal identity of Karabakh Armenians. This article employs a combined approach of descriptive qualitative analysis (to describe the phenomenon) and doctrinal legal analysis, using the Nagorno-Karabakh conflict as a case study. By adopting this approach, the article aims to provide a comprehensive account of this overlooked phenomenon, elucidating its constituent features. Furthermore, the legal analysis will shed light on how these features interact with legal realities and international law. The findings will contribute to a deeper understanding of the concept of legal identity.

To commence, this article examines the theoretical framework concerning the approach to legal identity within the context of this article. Subsequently, the article will delve into the Nagorno-Karabakh conflict as a case study and proceed to discuss the formation of collective legal identity of Karabakh Armenians as a phenomenon. Building upon the insights garnered from this discussion, the article will then concentrate on the continuity of this legal identity and argue that the collective legal identity of Karabakh Armenians should be assessed based on their access to rights rather than the legality of their self-constructed entity, highlighting the vulnerability of their collective legal identity if external challenges persist during potential reintegration into Azerbaijan.

An approach to legal identity

Given the absence of a universal definition of legal identity in international law and the inherent breadth of the concept itself, different actors adopt distinct approaches to this notion. In a mainstream approach, only partially relevant to this study, the term primarily pertains to officially issued state documents that affirm an individual’s identity and establish some form of legal status and/or relationships (Ladner, Jensen, and Debra, Jensen, and Saunders 2014, 48). Such documentation encompasses a range of legal statuses and relationships, including citizenship, residency, marital status, driving or voting permissions, as well as birth or death certifications. This interpretation finds support in Sustainable Development Goal 16, which aims to promote peace, justice, and inclusive societies. Target 16.9 of Sustainable Development Goal 16, for instance, seeks to ‘provide legal identity for all, including birth registration’. Although Sustainable Development Goal 16.9 does not explicitly define legal identity per se (Sperfeldt 2022, 217, 219; Fortin 2021, 31), the reference to ‘birth registration’ aligns with the aforementioned fundamental concept of legal identity. It signifies the documentation of legal facts and associated relationships or statuses (Sosnowski and Klem 2024). Additionally, the United Nations Legal Identity Expert Group’s operational definition places primary emphasis on birth registration as an official document issued by an authority, containing information such as name, sex, place, and date of birth. Moreover, this definition includes identification documents issued by a ‘legally recognized authority’ in cases where birth registration is lacking (UN LIATF 2020, 3–4). Consequently, legal identity, as a notion, becomes confined to the civil registration of an individual’s basic characteristics and the occurrences of birth and death (UN LIATF 2020

This general concept of legal identity presents challenges in terms of its reductionist nature and its technical focus, which may not fully capture the broader significance of the notion or encompass all its applications. It should be acknowledged that such a technical concept can be valuable in the context of policymaking or development policy implementation (Debra, Jensen, and Saunders 2014, 52–53) or in the context of material proof of an individual’s legal identity (Ferreri 2022, 817). However, for the purposes of this article’s discussion, a more comprehensive approach is necessary, one that aligns with broader international legal norms and concepts. Accordingly, the notion of legal identity can be expanded to encompass ‘the recognition of a person’s existence before the law, facilitating the realization of specific rights and corresponding duties’, thereby representing a legal status or statuses that confer a legal personality on an individual (Sperfeldt 2022, 219). This perspective is in line with Katharine Fortin’s argument that an international law perspective naturally emphasizes legal personhood rather than mere identification (Sperfeldt 2021, 31). Consequently, within international law, the concept of legal identity becomes associated with a legal status that is recognized as an integral part of an individual’s overall legal identity. Being recognized as a human being grants an individual access to basic human rights, and adopting a human rights-based approach necessitates a holistic understanding of legal identity, taking into consideration an individual’s relationships and associations with various groups (Fortin 2021, 31). While this article maintains a close connection to human rights issues and discusses the situation in an armed conflict, its focus is not on a general approach to legal identity and human rights. Instead, it centers on specific institutions and legal statuses that arise within the unique conditions shaped by an armed conflict.

Considering this focus, it is essential to highlight that access to specific rights is closely linked to the legal status of nationality (citizenship) or, in some cases, residency (Sperfeldt 2022, 220). This connection establishes two necessary elements for accessing specific rights: 1) membership in a group (such as citizens, residents, etc.) and 2) a relationship with a state or state-like entity.

Firstly, the relationship with a state or state-like entity emerges as a crucial factor in determining the legal status that grants individuals access to specific rights. Even within the reductionist understanding of legal identity, the concept revolves around the idea of an authority that identifies and officially registers an individual, thus indicating a connection to the state or state-like entity. Hannah Arendt emphasized the predominance of nationality as a legal identity with the advent of nation-states (Arendt 1951, 267–302). Additionally, scholarly discussions on the problematic aspects of legal identity are closely intertwined with the notion of statelessness, recognizing that legal identity tied to nationality plays a pivotal role in the well-being of various groups (Manby 2020). Therefore, a state or state-like entity is an essential and indispensable subject in the discussion of any type of legal identity.

Secondly, membership in a group creates an avenue for individuals to assert claims for specific rights. However, this membership also offers the opportunity to perceive legal identity not only at the individual level (as characteristics that shape identity and define the rights, obligations, and relationships of each person [Fortin 2021, 31]) but also as something inherent to a collective. This perspective aligns with the well-studied phenomenon of collective rights. Consequently, the concept of legal identity for, let’s say, a minority group, recognized before the law and granting access to rights and corresponding obligations, should not be seen as contentious. In this regard, it is important to differentiate between ‘individual’ and ‘collective’ legal identity. Collective legal identity is not dependent on a state or state-like authority, and it does not necessarily require registration or identification. It is instead based on the general recognition of a group’s existence and the acknowledgment that the group possesses distinct legal characteristics.

In delineating the concept of collective legal identity, it is necessary to establish two fundamental distinctions, each of which contributes to its accurate definition. Firstly, owing to the above-mentioned autonomy from the notion of statehood, collective legal identity should not be conflated with the concept of international legal personality, a status conferred upon entities engaging in international relations and bound by international law. Collective legal identity does not serve as an indicator of legal personhood in international law. Secondly, the formation of a collective legal identity is not intrinsically tethered to, nor contingent upon, processes of self-determination or the exercise of the collective right to self-determination. A group may acquire distinctive legal characteristics without necessarily invoking the right to self-determination or undergoing a political course of self-determination as a collective entity, as will be further elucidated in the discussion of the collective legal identity of Karabakh Armenians.

Therefore, this article understands and discusses legal identity comprehensively: both more narrowly as the recognition of an individual before the law (individual legal identity) and more broadly as the ability of a group to form its legal identity through the establishment of laws and institutions (collective legal identity).

With this in mind, the present study will differentiate between two dimensions of collective legal identity. On one hand, as groups that exist in relation to and interact with other groups and collective entities, their formal recognition (or lack thereof) by other collective entities falls within the purview of ‘external legal identity’. On the other hand, the individual legal identities within a group and the relationships associated with them pertain to the dimension of the ‘internal legal identity’ of that group. Both the external and internal dimensions of collective legal identity are understood here to be closely intertwined with the existing legal system and its characteristics. These characteristics of the legal system encompass the principles and institutional structures that, by virtue of their distinctiveness, shape a collective legal identity. Thus, this study bases its explanation of collective legal identity on Joseph Raz’s interpretation of the concept of material unity, which he employs to explain the sum of distinctive features of a legal system. Raz (1971, 796) explains that ‘[t]he material unity of a legal system consists in its distinctive characteristics; it depends on the content of its laws and on the manner in which they are applied. When trying to explain the characteristic features of a legal system we are not, of course, looking for the detailed regulation of every legal institution. Rather, we are looking for the all-pervasive principles and the traditional institutional structure and practices that permeate the system and lend to its distinctive character’. In other words, the distinctive character of laws (and their application), institutions, and practices within the legal system will serve as defining features of a group’s collective legal identity. Simultaneously, its external and internal dimensions will predetermine the group’s ability, on one hand, to be recognized and engage with other groups or collective entities and, on the other hand, to maintain the structures of the legal system. The significance of distinguishing between the external and internal dimensions of collective legal identity will become evident as we delve further into the discussion of the legal identity of Karabakh Armenians.

The Nagorno-Karabakh Republic as a case in point

To establish the foundation for the analysis of the case in point, this section of the article begins with a short literature review concerning the Nagorno-Karabakh conflict. The review is intended to underscore the importance of investigating the legal identity of Karabakh Armenians. Subsequently, by drawing upon the cases of Macau and Taiwan, which differ not only contextually from each other but also from the focal case, this section argues that the formation of a collective legal identity does not invariably depend on the overall context in each case but is instead reliant on specific external conditions. It is argued that the fact that the formation of the legal identity of Karabakh Armenians occurred under hostile conditions, as opposed to the favorable circumstances in the cases of Macau and Taiwan, makes it particularly significant for study.

Research on the Nagorno-Karabakh conflict has largely overlooked the question of the legal identity of Karabakh Armenians. Scholars examining the conflict as a whole tend to approach it from the standpoint of conflict ontology and resolution. They focus on the chronology of events leading to the armed conflict following the dissolution of the Soviet Union, analyze the behavior of different actors that contributed to the conflict’s development, and scrutinize the peace process and its intermittent nature over several decades (Cornell 1999; de Waal 2003; Broers 2019). A minority of authors approach the conflict from an international law perspective, exploring the international legal issues arising from the conflict and seeking corresponding solutions to those issues. These include questions of sovereignty, self-determination, territorial integrity, minority rights, autonomy, use of force, neutrality, demilitarization, and so forth (Krüger 2010; Makili-Aliyev 2020; Akande and Tzanakopoulos 2022). Some authors adopt historical-political perspectives, examining the situation through the lenses of political science, historical analysis, and international relations. They focus on the relations and interactions between regional states to assess the conflict’s resolvability and prospects for peace in the South Caucasus region, considering it a geopolitical event impacting on interactions between various states regionally and even globally (Cornell 2017; Souleimanov 2013; Yavuz and Gunter 2023). The question of identity was either embedded in some of the aforementioned works alongside other topics or addressed separately in relation to the formation of the identity of Azerbaijanis and Armenians as distinct peoples (Torres 2022). However, the discussion of legal identity necessitates a more focused perspective that simultaneously concentrates on the minority status of Karabakh Armenians as a group in the process of forming a legal identity and the international legal challenges associated with the formation of such a collective identity. Regrettably, this kind of perspective has been generally overshadowed by the larger legal and political issues presented by the Nagorno-Karabakh conflict.

Nonetheless, the Nagorno-Karabakh conflict resulted in the creation of the Nagorno-Karabakh Republic, a state-like entity, which is commonly referred to as a de facto state² in political science and international relations literature (Comai 2018). While comparing state-like entities to one another can be challenging, attempts are continuously made to identify commonalities among them. However, the differences between such entities are extensive and can defy generalization (Stacy et al. 2013, 679–680). Nevertheless, the argument put forth here capitalizes on these uncertainties and posits that the significance of the legal identity of Karabakh Armenians is directly linked to the specific conditions under which it was formed. To illustrate the relevance and importance of these conditions in the discussion of legal identity formation, examples from Taiwan and Macau, which are contextually distinct cases, can be utilized. It is important to note that both cases involve China as a key actor. This deliberate choice aims to demonstrate that a common state actor is not necessarily a defining feature of the context, as Taiwan and Macau differ substantially despite their firm connection to China as a state.

Taking Taiwan as an example, unlike in the Nagorno-Karabakh Republic, it achieved partial recognition, albeit by only 16 states,³ which has anchored its legal identity in the utilization of pre-World War II legal codifications from mainland China. Recently, these foundations have undergone reform and transformation, leading to a more distinct version of Taiwan’s legal identity that is detached from its pre-World War II roots. This process has also been perceived as the development of a broader Taiwanese identity (Lewis 2019, 490–492, 496). Arguably, two factors have contributed to the ability of Taiwan’s legal identity to evolve into a distinct category: 1) partial recognition of the entity as a state and 2) minimal interference from China in the island’s domestic affairs. On one hand, Taiwan lacks representation in the United Nations since 1971, and its participation in international organizations is complicated due to its contested status. On the other hand, while Taiwan maintains overall control of the island, China exerts influence in the background, particularly with regard to complicating Taiwan’s external legal identity (Lewis 2019, 500, 502–503). However, partial recognition has still enabled Taiwan to establish external relations (especially with the U.S. [Lewis 2019, 500]) and leverage these relations to develop domestic institutions with minimal interference from China.

Another example can be provided to illustrate an opposite context, namely the case of Macau. The Macau Special Administrative Region of China can be characterized as having a broader autonomy with a distinct legal identity, setting it apart from the rest of China. China regained sovereignty over Macau from Portugal in 1999; however, its legal system and identity remained largely unchanged following the transfer of sovereignty. China recognizes Macau’s legal identity as a different ‘system’ within the same state. Macau’s legal identity is unique and is based on the mutual understanding between Portugal and China, resulting in the creation of a distinct legal system that can be described as having a Chinese form but a European-Portuguese spirit (Berlie 2016, 343, 346). In this case, the situation is fundamentally different from the example of Taiwan. Two states agreed upon the legal identity of an entity situated between sovereignties, allowing for the establishment, development, and preservation of a distinct legal identity that is of vital importance to this entity (Berlie 2016, 351).

These two markedly different examples demonstrate that certain external conditions (rather than overall context) facilitate the formation of a legal identity of a group within a state-like entity. The claim or non-claim of sovereignty is not the decisive factor for the process of identity formation (McGee 2024); rather, it is the conditions determined by the actions of fully recognized and established states, which in turn highlights the importance of the external dimension of legal identity. In both of these cases, it was either the constructive engagement or non-interference of such states that led to the creation of favorable conditions, enabling groups in Taiwan and Macau to develop their legal identities. However, this was not the case for the Nagorno-Karabakh Republic.

In the case of the Karabakh Armenians, the conditions for the formation of a legal identity were highly hostile. The war between Armenia and Azerbaijan turned the Nagorno-Karabakh Republic into both a physical and political battleground, and diplomatic relations between these two states have not been restored to this day. In such a situation, cooperation between Armenia and Azerbaijan to reach a consensus on the legal identity of Karabakh Armenians was practically impossible, and the autonomy option as a resolution to the conflict was initially rejected by Armenia and later by Azerbaijan (Mahmudlu and Ahmadov 2014; ICG 2023a). Furthermore, from an international law perspective, the legal status of this separatist entity did not meet the Montevideo criteria (ICAS 1933, art. 1). First, its population was not stable due to the expulsion of its Azerbaijani segment and the constant exchange of populations with Armenia proper. Second, its assumed territory extended beyond the former Nagorno-Karabakh Autonomous Oblast’ and included other territories occupied by Armenia, and it was unclear if all of that territory was claimed or not. Third, the government was financially, militarily, and politically dependent on the Armenian government. Fourth, the Nagorno-Karabakh Republic was not recognized by any de jure state, including Armenia (Makili-Aliyev 2020, 27–29). In this situation, the Nagorno-Karabakh Republic was unable to establish external relations and was subject to constant interference from both Armenia and Azerbaijan.⁴ As mentioned before, unlike some other unrecognized or partially recognized states (e.g. Abkhazia, South Ossetia, Taiwan, Kosovo, etc.), the Nagorno-Karabakh Republic was created under the conditions of the occupation of the territory of one state by another (Azerbaijan’s territory by Armenia). From a legal point of view, the occupation and major contestability of the Montevideo criteria made it difficult (or even inaccurate) to call it a de facto state. Nor did it become an autonomous region like Macau or the Åland Islands (for more on this autonomy, see Makili-Aliyev 2020, 39–41). Nevertheless, despite being externally challenged, the Nagorno-Karabakh Republic identified itself as a state (although the term ‘illegal republic’ may be more appropriate based on the aforementioned reasons and can be compared to the term ‘illegal citizen’ [Mezzadra 2022, 580] in that there exists an entity that acts as a republic, even if in contradiction to international law) and was able to establish institutions that contributed to the formation of a legal identity for the Karabakh Armenians.

As can be seen from the examples of Macau and Taiwan above, the formation of a collective legal identity is not contingent on the overall context in which it was formed or on claims to sovereignty. Instead, it is the specific external conditions that appear to be more important. What is even more intriguing is that such external conditions need not necessarily be favorable to the group that is in the process of forming a collective legal identity. This suggests that the external dimension is not the sole decisive factor and that the internal dimension of collective legal identity should also be closely examined. This is why the case of Karabakh Armenians provides a good example.

The legal identity of Karabakh Armenians as a phenomenon

The phenomenon of the legal identity of Karabakh Armenians encompasses the ability of a minority to establish a legal identity under generally hostile conditions, resulting in the formation of an entity that, from a legal perspective, would be considered an illegal republic created through multiple violations of international law. To better comprehend this phenomenon, this article will take a closer look at the conditions under which this collective legal identity was formed, while maintaining a legal perspective on the process. This methodological approach is necessary to demonstrate the complexity of the phenomenon from both a legal and practical standpoint.

For the Karabakh Armenians as a group, the formation of a legal identity was a crucial matter. Following the end of the First Karabakh War⁵ in 1994 (BBC 2023), even their kin state, Armenia, did not recognize the Nagorno-Karabakh Republic, leaving the Karabakh Armenians in a legal limbo. This situation could potentially lead to heightened vulnerability, as evident in studies showing that the lack of individual legal identity exacerbates poverty, social exclusion, and instability within conflict-affected regions (Harbitz and Del Carmen Tamargo 2009; Fortin 2021, 44–45). Similar challenges are faced by individuals experiencing involuntary statelessness (Sperfeldt 2021; Manby 2020), which could have been the plight of the Karabakh Armenians had they not established formal structures to support themselves. Simultaneously, this minority group also hoped that a clear and visible collective legal identity would pave the way for the recognition of the Nagorno-Karabakh Republic as a state (Berg and Mölder 2012, 15).

Between 1994 and 2020, the Karabakh Armenians created institutions resembling those of a state for their community, which consisted, by self-estimates, of a maximum of around 150,000 members (Arutyunyan 2023). The Nagorno-Karabakh Republic was framed as a republic, with a division of power into executive, legislative, and judicial branches, as well as the distribution of power between central and local authorities. The executive power and role of the head of state were vested in the institution of the President, elected for a maximum of two five-year terms. Legislative power was institutionalized in the National Assembly, comprising 33 members and seven standing committees. Judicial power was allocated among three distinct courts, each representing a separate instance (The First Instance Court of General Jurisdiction, The Court of Appeal, and The Supreme Court). In addition to these core institutions, the government included 13 ministries responsible for various aspects of state affairs, labor, social security, housing, healthcare, justice, agriculture, economy, infrastructure, education, science, culture, defense, territorial administration, development, finance, and foreign affairs, among others. Notably, there were also unique creations such as the Ministry of Municipal Engineering, which worked with local authorities, and the Ministry of Military Patriotic Upbringing, Youth, Sports, and Tourism.⁶ Moreover, the government included special committees responsible for policing, environment, border control, national security, and more (Arutyunyan 2023

Through its institutions, the Nagorno-Karabakh Republic collected taxes (although the extent of integration with Armenia’s financial system remains unclear [ECtHR 2015, paras. 80–86]), issued identification documents,⁷ established a social welfare system, conducted local elections, and developed a body of legal acts, including a constitution and other parliamentary legislation. In addition to the constitutional basic law, the legislative framework created by the Karabakh Armenians encompassed areas such as tax, national security, budget, trade and services, transportation, social protection, regulation of holidays, military service, and more. Some of this legislation specifically addressed issues related to the ongoing armed conflict, for instance, regulating conduct when using personal computers and cybersecurity (NKR National Assembly 2023).

These endeavors allowed the population of the territory to exercise certain rights and obligations⁸ within a framework presented as ‘nation-building’ (NKR Office at Washington D.C. 2023), resembling those expected from a state, albeit with limitations. However, challenges arose concerning the maintenance of citizenship, independent financial and monetary policies, as well as external contacts. These significant obstacles to the creation and preservation of legal identity originated from Armenia and Azerbaijan, both recognized states engaged in the conflict.

The most apparent and fundamental challenge stemmed from the Republic of Azerbaijan, which accurately regarded the Nagorno-Karabakh Republic as an occupied territory under international law (Makili-Aliyev 2020, 5–10; Akande and Tzanakopoulos 2022) and refused to recognize its sovereignty as a republic. Azerbaijan actively worked to ensure that the legal identity of Karabakh Armenians was not acknowledged by the international community and persistently contested it. Preventing any form of international recognition of the Nagorno-Karabakh Republic became a central aspect of Azerbaijan’s foreign policy. Simultaneously, Azerbaijan was denied access to Karabakh Armenians; they were isolated from the rest of Azerbaijan through the line of contact separating armed forces of Armenia and local Armenian forces from armed forces of Azerbaijan (ICG 2023b). This significant challenge rendered it impossible for Karabakh Armenians to exercise their legal identity beyond the boundaries of the illegal republic, as their identity was not recognized at the borders of recognized states.

To address this challenge posed by Azerbaijan, Karabakh Armenians turned to Armenia, a kin state to the population of the territory. Armenia provided an alternative legal identity for Nagorno-Karabakh Republic residents, enabling Karabakh Armenians to establish contact with the international community. Consequently, citizens of the Nagorno-Karabakh Republic were able to hold Armenian passports as well as their own (Berg and Mölder 2012, 15; Asbarez 1998; Armenia News 2014). However, this placed Armenia in a position to challenge the internal legal identity of Karabakh Armenians and even their autonomy when deemed necessary. The territory was already economically, politically, and militarily dependent on Armenia (ECtHR 2015 para. 186). By controlling the external expression of the legal identity, Armenia effectively shaped the narrative through which the Nagorno-Karabakh Republic was presented to the outside world, exerting influence over its population. Moreover, this control over the external legal identity allowed Armenia to shape the relationship between the Nagorno-Karabakh Republic and the international community. Additionally, Armenia had the ability to integrate Karabakh Armenians into its own state institutions and structures as needed, and even shared political spaces with them in matters of political governance (ECtHR 2015, paras. 78–79). As a result, the internal legal identity faced challenges from Azerbaijan, while the external legal identity became heavily reliant on Armenia.

Moreover, the international community, as represented by the European Court of Human Rights, refused to recognize any independent legal identity of Karabakh Armenians. In its judgment in the case of Chiragov et al. v. Armenia, the Court determined that Armenia’s conduct in the territories of Azerbaijan, including those claimed by the Nagorno-Karabakh Republic, met the criteria of occupation (ECtHR 2015, paras. 180, 186).⁹ This cast doubt on the entire construct of the legal identity of Karabakh Armenians from a legal standpoint. The illegality of the contested republic raised the question of whether the formation of a legal identity by Karabakh Armenians could be seen as benefiting from the illegal establishment of a state-like entity on the territory of another state. On one hand, the institutions and laws created by Karabakh Armenians would be considered illegal under the principles of international law and the general principle of ex turpia causa non oritur actio.¹⁰ On the other hand, it is unclear if these actions actually brought any legal benefits to Karabakh Armenians, as their state-like entity failed to gain recognition from any recognized states, and their claims of self-determination were not accepted due to the evidence that this group was not in fact a demos (i.e. people) (Berg and Mölder 2012, 16; Makili-Aliyev 2023, 206–207).

Nonetheless, in the present discussion, the legal identity being formed by Karabakh Armenians should be understood not in terms of its legality or international legitimacy, but in terms of access to rights (Debra, Jensen, and Saunders 2014, 50–51) necessary for the group’s existence under any legal status. Consequently, the phenomenon of the legal identity of Karabakh Armenians should be separated from questions regarding the legality of the institutions and laws they created. While the illegality of the Nagorno-Karabakh Republic and its associated normative framework pose an additional challenge to the external legal identity of Karabakh Armenians, it is the internal legal identity that enables the group to maintain the structures and institutions it established. As evident, when external challenges to legal identity are combined with overall hostile conditions for its development, the internal aspect of legal identity becomes crucial for its continuity. Therefore, in such conditions, questions of continuity and sustainability of legal identity become pertinent to the overall discussion.

Continuity of the legal identity of Karabakh Armenians

The continuity of the legal identity of Karabakh Armenians faced its most significant challenges in and after the year 2020, since the Second Karabakh War¹¹ between Armenia and Azerbaijan. This renewed outbreak of fighting lasted a little over six weeks and was characterized by intense and deadly fighting, resulting in at least around 6,500 conflict-related deaths (Karlinsky and Torrisi 2023, 16). Prior to the conflict, the Armenian armed forces controlled the entire territory of the former Nagorno-Karabakh Autonomous Oblast’ as well as seven adjacent territories of Azerbaijan. However, after the fighting ceased, Azerbaijan had regained control over these seven territories and a substantial part of the former Nagorno-Karabakh Autonomous Oblast’. The remaining territory under the control of Karabakh Armenians was a result of a ceasefire agreement negotiated by Russia, which also mandated the presence of Russian peacekeeping forces to patrol the remaining parts of the Nagorno-Karabakh Republic. As a result, the security of the Nagorno-Karabakh Republic now rested in the hands of Russia, while Karabakh Armenians continued to govern the remaining territory through their established institutions and structures (ICG 2023b; Trilateral Statement 2020).

To assess the effects of these challenging developments and evaluate their impact on the continuity of the legal identity of Karabakh Armenians, it is necessary to examine the changes brought about by the war in terms of actors and their positions on the ground. The Nagorno-Karabakh Republic, for instance, lost most of the territories it had claimed, rendering it extremely vulnerable in every aspect. The territorial changes resulted in a 75% reduction in the Nagorno-Karabakh Republic’s economy, and the loss of significant farmlands severely affected the sustainability of agriculture, which was the second-largest employment sector prior to the war. Furthermore, the Nagorno-Karabakh Republic experienced a significant decline in its military capabilities, which had relied heavily on Armenia’s support. Consequently, Armenia withdrew from Azerbaijan, and most of its military personnel were removed from the remaining parts of the Nagorno-Karabakh Republic (ICG 2021

Due to these changes, the Nagorno-Karabakh Republic shifted its reliance from Armenia to Russia and its peacekeeping forces, which served as a barrier against Azerbaijan’s challenges to its institutions and structures. Additionally, the involvement of Russia introduced a new challenge to the external legal identity of Karabakh Armenians. While Armenia had previously served as the gateway for external connections for the Nagorno-Karabakh Republic, the deployment of Russian peacekeepers to the remaining territory altered the rules of access. Foreigners, except those carrying Armenian or Russian passports, were now required to obtain visas from the local authorities, with visa issuances coordinated with the Russian peacekeepers (ICG 2021). Consequently, Russia then partially regulated the expression of the external identity of Karabakh Armenians, alongside Armenia and its policy of providing Armenian passports to Karabakh Armenians. Another challenge arose from the fact that the Russian peacekeeping mission lacked a clear mandate with defined responsibilities and a framework for power-sharing with local authorities (ICG 2021), particularly considering their extraterritorial operations on the territory of Azerbaijan. This placed Russia in a position to challenge certain aspects of the internal legal identity of Karabakh Armenians, such as security and defense, territorial control, executive decision-making, transportation, infrastructure, energy, and other areas that required coordination with peacekeepers and mediation with Azerbaijan’s central authorities. For example, the Russian military was now able to demand that ID documentation be translated into the Russian language and, in general, challenge the internal bureaucracy of Karabakh Armenians in their day-to-day operations. Furthermore, Russia’s challenge to the internal legal identity of Karabakh Armenians coincided with a concurrent challenge from Azerbaijan, which was able to make advancements into Nagorno-Karabakh Republic-controlled territory despite the presence of Russian peacekeepers (ICG 2022).

All of these factors greatly diminished the prospects of independence for the Nagorno-Karabakh Republic, as Armenia’s influence has significantly decreased, and the presence of another state actor further complicates the situation. Furthermore, Armenia no longer appeared to pursue the goal of Nagorno-Karabakh Republic’s independence, instead prioritizing peacebuilding with Azerbaijan (Gavin 2023). On the other hand, Azerbaijan maintained the position that eventually Karabakh Armenians and the remaining territory under Nagorno-Karabakh Republic’s control will fall under its jurisdiction (ICG 2023c). This made the continuity of the external legal identity of Karabakh Armenians highly questionable.

Nevertheless, Karabakh Armenians have managed to preserve their internal legal identity to a significant extent since 1994 and even after the changes in the status quo in 2020. This demonstrates that their legal identity was not entirely reliant on Armenia’s influence and protection. Moreover, it has proven to be resilient even in the presence of Russian peacekeeping forces. Drawing parallels with the Taiwan-China situation, the internal legal identity of Karabakh Armenians also served as a legal irritant (Lewis 2019, 560) for Azerbaijan, a state asserting sovereignty over the territory in question. This highlights the tension between the presumed reality envisioned by the international legal principle of territorial integrity (UN 1945, art. 2(4)) and the actual reality of a construct that serves as a way for a population to access some of their rights while being trapped in a conflict between two states.

Furthermore, it was not an insurmountable task to construct an internal legal identity in an entity that lacks the legal attributes of a state. This fact challenges Hannah Arendt’s notions of nationality as the predominant form of legal identity and the requirement of a nation-state to support its claim of legal identity both internally and externally (Arendt 1951). The situation of Karabakh Armenians demonstrates that even when external legal identity is clearly contested and the state-like entity cannot be considered a legal state, a group can construct an internal legal identity to gain access to some rights or exercise the ‘right to have rights’, as framed by Arendt (1951, 296). Accordingly, while collective legal identity encompasses both external and internal dimensions, when positioning the group in relation to other collective entities, access to rights, which is crucial for individual legal identity in a narrower sense, relies on the formation and continuity of the group’s internal identity.

Nevertheless, collective legal identities, such as that of the Karabakh Armenians, are exceptionally vulnerable. The blockade of transport links connecting the remaining territory of the Nagorno-Karabakh Republic to Armenia in 2023 (ICG 2023c) demonstrates how easily Azerbaijan was able to impede the external expression of legal identity for a separatist group by exerting sufficient power to isolate the group from external contacts.

Moreover, while drafting this article, the internal legal identity of Karabakh Armenians faced an existential threat. On 19 September 2023, Azerbaijan initiated a military operation with the objective of expelling the remaining Armenian military forces from the territory claimed by the Nagorno-Karabakh Republic and disarming local Armenian forces. In less than two days, Azerbaijan successfully breached Armenian defenses, ultimately compelling the leadership of the Nagorno-Karabakh Republic to capitulate and renounce their claims to statehood on 28 September 2023 (Edwards 2023).

The future of the internal dimension of the legal identity of Karabakh Armenians will now directly depend on the resolution of the conflicting issues between Armenia and Azerbaijan. The ongoing negotiations between these two states lean towards the reintegration of the Karabakh Armenians into Azerbaijan, while ensuring their rights and security as a result of the process (ICG 2023c). This indicates the possibility of retaining their legal identity in some form, even within the framework of the state from which they sought to separate (e.g. within the parameters of some kind of autonomy [Makili-Aliyev (2022), 90–101, 2022]). If this outcome materializes, the subsequent stage of this transformation process may provide further insights into the development of legal identities for separatist groups residing in unconventional state-like entities, as well as the potential for retaining their distinctive legal identities beyond their state-like institutions.

Conclusion

This article has examined the formation and continuity of the legal identity of Karabakh Armenians as a group. Following the dissolution of the Soviet Union and the conflict between Armenia and Azerbaijan over the former Nagorno-Karabakh Autonomous Oblast’, Karabakh Armenians found themselves caught in the space between two newly independent and warring states. While they controlled a significant portion of Azerbaijani territory and had the support of and integration with Armenia, they lacked full access to the nationality of either of these states. These circumstances, along with aspirations for recognition of their independence, pushed Karabakh Armenians to construct their own legal identity amidst substantial challenges posed by Armenia and Azerbaijan.

To gain insights into the process of constructing this collective legal identity, this study employed a combination of descriptive qualitative approaches to the phenomenon of the legal identity of Karabakh Armenians, along with a doctrinal legal analysis in the context of the Nagorno-Karabakh conflict. In terminological terms, the study distinguished between legal identity in a narrower sense, referring to the recognition of an individual before the law (individual legal identity), and collective legal identity, which a group can establish through the creation of laws and institutions. Furthermore, the external and internal dimensions of collective legal identity are linked to the legal system established by the group through the enactment of laws and the establishment of institutions.

What makes the collective legal identity of Karabakh Armenians a significant case for research is its distinctiveness compared to many other examples. For instance, the cases of Taiwan and Macau differ significantly in their relationships with recognized states. While both possess uniquely constructed legal identities, Taiwan functions as a de facto independent state, while Macau is an autonomous region that underwent a transfer of sovereignty. However, the groups in both entities enjoyed relatively accommodating conditions for the formation of their respective identities. In contrast, Karabakh Armenians have constructed their collective legal identity in a hostile environment, where both the external and internal dimensions of their identity were challenged by Armenia, Azerbaijan, and even the international community, including the European Court of Human Rights. From the perspective of international law, their constructed state-like entity, the Nagorno-Karabakh Republic, could be considered an illegal republic.

Nevertheless, this article argues that the phenomenon of the legal identity of Karabakh Armenians should be considered separately from questions regarding the legality of the entity and institutions they have created, and instead be viewed in terms of access to rights. From this perspective, the study examines the continuity of the collective legal identity of Karabakh Armenians and highlights the fact that, even with the external dimension of their collective legal identity severely challenged and questionable, it is the internal legal identity that is responsible for the continuity and maintenance of the structures created by the group. Considering this, the prevailing notion of nationality as the predominant legal identity necessary for accessing rights, as understood by Hannah Arendt, is called into question. The case of Karabakh Armenians suggests that a group can access some rights by relying solely on a self-constructed internal legal identity, even without an established nationality.

However, legal identities such as the one constructed by Karabakh Armenians, are exceptionally vulnerable, particularly due to challenges to their external legal identity. As recognized states do not externally recognize the group’s legal identity or consider it legitimate, they are inclined to challenge the internal dimensions as well. In the case of Karabakh Armenians, this is evident in the diminishing space for their collective legal identity to develop, as they are now confronted with reintegration into Azerbaijan. This raises the question of whether the group will be able to partially maintain its collective legal identity in the event of reintegration. Such a process, if it comes to fruition, could provide further insights into the formation and continuity of collective legal identities.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. This legal principle, derived from customary international law, means that newly formed states or emerging entities, particularly in the context of decolonization or territorial restructuring, should inherit the borders of the administrative divisions or territories they held prior to their independence or the restructuring process, aiming to promote stability and discourage territorial disputes.

2. Other references include unrecognized or contested state.

3. Honduras recently recalled its recognition (Davidson 2023).

4. Albeit in different ways, as will be explained further in this article.

5. This war was fought between Armenia, with the support of local Karabakh Armenian forces on one side, and Azerbaijan on the other.

6. The youth affairs mandate of this institution is clearly connected to the ongoing Nagorno-Karabakh conflict, and its name underscores the importance of preparing youth for warfare.

7. Karabakh Armenians have issued passports for internal use as proof of identity. A visual representation of these passports can be found here: https://en.wikipedia.org/wiki/Artsakh_passport. However, due to the lack of recognition of the Nagorno-Karabakh Republic by recognized states, such passports cannot be utilized for external purposes. In addition to passports, other commonly issued documents in the illegal republic include driving licenses, birth and death registrations, as well as marriage certificates.

8. The internal legislation of Karabakh Armenians guaranteed inter alia inviolability of human dignity, right to life, right to physical and mental integrity, personal liberties, prohibition of discrimination and some social, cultural and economic rights. See, for example, Constitution of the Nagorno-Karabakh Republic (2017) http://president.nkr.am/media/documents/constitution/Constitution-eng2017.pdf

9. The Court established both Armenia’s effective control over and military presence in the Nagorno-Karabakh Republic. Local Armenian forces were completely integrated into Armenian armed forces and had the same chain of command.

10. The general principle of law, commonly known as ‘no right of action arises from a wrongful or illegal act’, establishes that individuals or collective entities cannot pursue legal remedies or enforce a claim if their claim is rooted in an immoral or illegal action in which they were involved. From a legal perspective, the institutions, laws, and claims of Karabakh Armenians are deemed illegal as they originated from the unlawful occupation of Azerbaijan’s territory.

11. Sometimes also referred to as ‘44-day war’ in media and academic publications.