Germany confirms non-recognition of “Nagorno-Karabakh Republic”

Published: 20 July 2020 Author: Stefan Talmon

The conflict between Armenia and Azerbaijan over the region of Nagorno-Karabakh dates back to the late 1980s, when the Armenian Soviet Socialist Republic started to make territorial claims against its fellow Soviet Socialist Republic. The Nagorno-Karabakh Autonomous Oblast, with its capital, Stepanakert, was part of the Azerbaijan Soviet Socialist Republic, but its population was approximately 75 per cent ethnic Armenian (145,000) and 25 per cent ethnic Azeri (40,688). Inter-ethnic violence broke out in early February 1988 after calls for the unification of Nagorno-Karabakh with Armenia. In July 1988, the Government of the Union of Soviet Socialist Republics (USSR) rejected Armenian demands for unification. In January 1989, the USSR Government placed Nagorno-Karabakh under Moscow’s direct rule, but this did not end the clashes between Armenians and Azeris. During the disintegration of the USSR, Azerbaijan declared its independence on 18 October 1991. A month later, the Azerbaijani parliament in Baku annulled Nagorno-Karabakh’s status of autonomous oblast.

In response, the Nagorno-Karabakh autonomous parliament held a popular referendum on 10 December 1991, in which an overwhelming majority of the Armenian population voted in favour of independence from Azerbaijan, while the Azeris boycotted the poll. On 6 January 1992, the “Nagorno-Karabakh Republic” – also known as the “Republic of Artsakh” – declared its independence from Azerbaijan. As a result of the declaration of independence a full-scale armed conflict between Karabakh Armenian forces and the Azerbaijani army broke out and ended only on 12 May 1994 with a Russian-brokered ceasefire. At the end of the conflict Armenian forces, including citizens and members of the armed forces of the Republic of Armenia, occupied some 20 per cent of Azerbaijani territory, including the Nagorno-Karabakh region and seven surrounding districts; most notably the Lachin Corridor, a mountain pass that links Nagorno-Karabakh with the Republic of Armenia. The armed conflict led to some 580,000 to 630,000 Azeris, including all 40,000 Azeri inhabitants of the Nagorno-Karabakh region, being forcibly displaced from their homeland.

In summer 1992, the Organisation for Security and Co-operation in Europe (OSCE) formed the 11-member OSCE Minsk Group to mediate between Armenia and Azerbaijan and achieve a negotiated peaceful resolution of the Nagorno-Karabakh conflict. The Minsk Group, which includes Germany, is headed by a co-chairmanship consisting of France, Russia, and the United States. To date, the OSCE Minsk Group’s mediation attempts have been unsuccessful, and hostilities have flared up from time to time.

The Nagorno-Karabakh Republic has been in existence since 1992 but has not been recognised by any country as an independent State. The Republic of Armenia has not formally recognised the Nagorno-Karabakh Republic but has supported the unrecognised entity at all levels which led the European Court of Human Rights to conclude that “the ‘NKR’ [Nagorno-Karabakh Republic] and its administration survive by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercises effective control over Nagorno-Karabakh and the surrounding territories”.

Germany does not recognise “the so-called ‘Nagorno-Karabakh Republic’”. According to the Federal Government, “the Nagorno-Karabakh region and the seven surrounding provinces, which are under the control of Armenian armed forces, are part of the Republic of Azerbaijan.” Commenting on the “presidential and parliamentary elections” held in Nagorno-Karabakh on 31 March 2020, the Director for Eastern Europe, Caucasus, and Central Asia at the Federal Foreign Office tweeted:

“We do not recognize the legal framework of the so called ‘presidential and parliamentary elections’ that took place yesterday in Nagorno-Karabakh. Both the elections and their results are considered illegal.”

Although not recognised as an independent State, Nagorno-Karabakh has been represented in Berlin since May 2008. On 31 May 2010, Mr. Harutyun Grigoryan was appointed “Official” or “Permanent Representative of the Nagorno-Karabakh Republic to Germany”. The tasks of the representative comprised, inter alia, lobbying for the idea of independence of Nagorno-Karabakh and organising tourist and study visits of German citizens, including politicians, to Nagorno-Karabakh. In May 2020, the Alumni Network Azerbaijan enquired with the Federal Foreign Office about the “legality of the Permanent Representation of the so-called and internationally not recognised ‘Republic of Artsakh (Nagorno-Karabakh) in Germany”. In a letter dated 20 May 2020, the Head of Division for Southern Caucasus and Central Asia at the Federal Foreign Office replied as follows:

“As you know, the Federal Republic of Germany does not recognise the so-called ‘Republic of Artsakh’. Accordingly, there are no accredited diplomatic or consular representatives, and there is no recognized representation of this entity.

According to section 132a of the Criminal Code, the use of honorific titles or foreign titles of office, or titles that are easy to confuse with these titles, incurs a criminal penalty. This also applies to titles by which the person using them gives the impression of being an official of a non-existent State.

The Federal Foreign Office has therefore requested Mr. Grigoryan in writing to immediately refrain from creating the impression of any international legal personality of Nagorno-Karabakh and associated diplomatic or consular representation and has notified him that in case of non-compliance legal action will be taken.”

In response to reports in the Azerbaijani media about the letter, the Information and Public Relations Department of the “Foreign Ministry of the Republic of Artsakh” published a statement on 23 May 2020 which read in part as follows:

“The legitimate interests of the people of Artsakh in Germany are protected by an organization that is registered and operates in full compliance with the legislation of the host country. Among the goals of the organization, worth mentioning, are informing the German society about Artsakh, as well as establishing cooperation in various fields between the peoples of the two countries. The activity on the protection of the interests of the people of Artsakh in Germany is transparent and legal and will be continued.”

Contrary to reports in the Azerbaijani media, the Federal Foreign Office did not “ban” the activities of the representation of the “Republic of Artsakh” in Germany. It only requested Mr. Grigoryan not to create the impression of international legal personality of Nagorno-Karabakh and associated diplomatic or consular representation. As a result of this request, the Facebook page of the “Permanent Representation of the Republic of Artsakh in Germany” was renamed on 25 May 2020, first to “Artsakh.Germany” and then on 13 June 2020 to “Artsakh.Deutschland” – the internet address and, more importantly, the content of the page, however, stayed the same. The page also continued to show the official logo and provide a link to the English language version of the website of the “Ministry of Foreign Affairs Republic of Artsakh”. No changes were made to the representation’s Twitter account, which had been in operation since July 2017, providing “information from Artsakh and about Artsakh in German”. The representative’s “office” in Berlin also continued to operate as an incorporated society under the name “European Center for Artsakh e.V.” It had been operating since 2011 as a non-profit organization under German law. It seems that the renaming of the Facebook page was motivated by fear, rather than required by law. Neither German nor international law prohibited the use of the originally chosen name for the Facebook page.

There is not much the Federal Foreign Office can do about so-called “representative offices” of unrecognised States in Germany. It is not for the Federal Government to determine whether private individuals establish an “office” or not, or which name they choose for their Facebook page. There is no legal basis in German law to close such offices unless the operation of the office would contravene building or health and safety laws; or would constitute a breach of the peace. There is also no prohibition in German law for private persons to fly the flag of foreign States, organisations, or other entities. International law also does not require Germany to close such offices; in particular, no such obligation can be derived from the duty not to recognise a de facto entity as a State, as the mere toleration of the presence of such an office cannot imply such recognition. There are quite a number of representative offices of unrecognised States in Germany: Taiwan, the Turkish Republic of Northern Cyprus, Abkhazia, and Rojava maintain representative offices in Berlin. Non-recognition also does not preclude informal official contact at low level between the Federal Foreign Office and these offices.

The prospect of Mr. Grigoryan being prosecuted for abuse of titles under section 132a of the Criminal Code – as intimated by the Federal Foreign Office – was minimal. Pretending to be an official of an (existing or non-existing) State is not punishable as such. The provision is to protect the integrity of domestic and foreign honorific titles and titles of office, but not functional or job titles. As Mr. Grigoryan did not claim to be an “ambassador” or a “consul” but simply a “representative” of the Nagorno-Karabakh Republic, the factual requirements of the provision were not met.

While Germany is quite clear about its non-recognition of the Nagorno-Karabakh Republic and the fact that it considers the region to be part of Azerbaijan, it is less outspoken about the continued violation of Azerbaijan’s territorial integrity. Unlike in the case of Russia’s assault on the territorial integrity of Georgia (Abkhazia and South Ossetia), Moldova (Transnistria) and Ukraine (Crimea and Donbass), the Federal Government is less prepared to name names in the case of Armenia’s illegal occupation of 25 per cent of Azerbaijan’s territory. For example, in September 2018 Chancellor Angela Merkel adopted rather neutral language when referring to the various conflicts in the former Soviet republics, stating: “In Armenia and Azerbaijan we have the conflict over Nagorno-Karabakh”. And during a joint press conference with the Prime Minister of Armenia on 13 February 2020, she said:

“Today we will also talk about a sad chapter, namely the Nagorno-Karabakh conflict, which unfortunately still could not be resolved. Therefore, we still need a lot of staying power to resolve this conflict between Armenia and Azerbaijan, which afflicts many people.”

This hardly sounds like standing up for the principle of territorial integrity or international law more generally.

Category: Statehood and recognition

 

Prof. Dr. Stefan Talmon LL.M. M.A

Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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