1. Arguments of Armenia
In order to justify the territorial claims of Armenia towards Azerbaijan, the officials of the former frequently raise a proposition, according to which Nagorny Karabakh has never been within the jurisdiction of independent Azerbaijan. The following arguments underlie this assertion:
- Firstly, in the period when independent Azerbaijan became part of the Soviet Union Karabakh had not been within its jurisdiction, the evidence of which was the decision of the League of Nations that refused to recognize Azerbaijan because of its territorial claims to the Armenian populated Eastern Caucasus, including in particular Nagorny Karabakh, as well as the lack of efficient state control over its supposed territory and inability to ground the legitimacy of the frontiers of this territory.
- Secondly, the legal cause for secession of Nagorny Karabakh from Azerbaijan in the process of disintegration of the USSR in 1991 and the establishment of the "Republic of Nagorny Karabakh". Thereby the special emphasis is placed on the provisions of the Law of the USSR "On the Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR" of 3 April 1990, according to which in case of realization by the Union republic of the secession procedure provided for in this Law autonomous entities would acquire a right to decide independently the question of staying in the USSR or in the seceding republic, as well as to raise the question of their own state-legal status.
- Thirdly, refusal by Azerbaijan to regard itself as a successor state to the USSR, and thus the lack of any reason to have pretensions to the frontiers of that period(2).
2. Arguments of Azerbaijan
2.1. Nagorny Karabakh in the context of consideration of a question regarding the
admission of Azerbaijan and Armenia to the League of Nations
- Following the entry of the British forces into Baku in 1918, general V.Thomson, who represented the Allied Powers, recognized Nagorny Karabakh together with the neighboring Zangezur uyezd under the administration of Azerbaijan. He confirmed the appointment by the Government of Azerbaijan of Khosrov Sultanov as a Governor of the Karabakh General-Governorship, of which these two regions were part. In 1919 the Armenian Assembly of Nagorny Karabakh recognized officially the authority of Azerbaijan.(3)
- In 1918-1920 the Republic of Azerbaijan had diplomatic relations with a number of states. Agreements on the principles of mutual relations were signed with some of them; sixteen states established their missions in Baku.
- On 12 January 1920 at the Paris Peace Conference the Supreme Council of the Allied Powers de-facto recognized the independence of the Republic of Azerbaijan.
- The head of the Azerbaijani Delegation at the Conference by a letter of 1 November 1920 requested the Secretary-General of the League of Nations to submit to the Assembly of the League an application for the admission of the Republic of Azerbaijan to the Organization.
- The Secretary-General pointed out in his Memorandum of 24 November 1920 that the mandate of the Azerbaijani Delegation attending at the Paris Peace Conference derived from the Government which had been in power at Baku until April 1920. Thus, the attention in the Memorandum is distinctly paid to the fact that at the time of submission by the Azerbaijani Delegation of the application (1 November 1920) and the publication date of the Memorandum (24 November 1920) the Government of the Republic of Azerbaijan, which issued the credentials to the Delegation, was not actually in power since April 1920. It was further noted in the Memorandum that this Government did not exercise the authority over the whole territory of the country.(4)
- In this context, the most important part of the mentioned Memorandum of the Secretary-General of the League of Nations relates to "Juristic observations", which reminds of the conditions governing the admission of new Members to the Organization contained in Article 1 of the Covenant of the League of Nations, including the requirement to be a fully self-governing state.(5)
- The relevant documents of the League of Nations completely disprove the statements of the Armenian side claiming that the League of Nations did not admit Azerbaijan because of its alleged territorial claims to the so-called Armenian-populated territories and the refusal to recognize the control of Azerbaijan over Nagorny Karabakh. It is obvious actually that the state, considerable part of the territory of which was occupied by the time of consideration of its application in the League of Nations, and yet the Government that submitted this application was overthrown, could not be regarded as fully self-governing in terms of Article 1 of the Covenant of the League of Nations. Thus, these were just those conditions that prevented Azerbaijan from being admitted to the League of Nations.
- At the same time, the League of Nations did not consider Armenia itself as a state and proceeded from the fact that this entity had no clear and recognized borders, neither status nor constitution, and its Government was unstable. As a result, the admission of Armenia to the League of Nations was voted down on 16 December 1920.(6)
2.2. Nagorny Karabakh within the Azerbaijan SSR
- Along with the above-mentioned facts on the recognition by the Allied Powers of the authority of Azerbaijan over Nagorny Karabakh, a proposition that Karabakh was not under the jurisdiction of independent Azerbaijan when it became part of the Soviet Union refuted also by the decision of the Caucasian Bureau of the Central Committee of the Russian Communist Party (Bolsheviks), which owing to the territorial claims of Armenia did take up the problem several times and, at the meeting held on 5 July 1921, decided to retain Nagorny Karabakh within the Azerbaijan SSR. At the same time, the Azerbaijan SSR was recommended to confer Nagorny Karabakh a broader autonomy.(7)
- On 13 October 1921 the Treaty of Friendship between the Armenia SSR, Azerbaijan SSR and Georgia SSR, on the one hand, and Turkey, on the other, was concluded in Kars with the participation of the RSFSR. In Article 5 of the Treaty the Governments of Turkey, Armenia and Azerbaijan expressed their consent that "the Nakhichevan oblast ? forms an autonomous territory under the protection of Azerbaijan".(8)
- Transcaucasian Socialist Federal Soviet Republic (TSFSR) was established on 13 December 1922. The Constitution of the TSFSR confirmed that the Republic of Nakhichevan was an inseparable and constituent part of Azerbaijan in form of an autonomous unit. According to this Constitution, the status of autonomous republics and oblasts (Abkhazia, Ajaristan and South Ossetia) remained unchangeable.
- Insofar as the mountainous part of Karabakh was officially recognized as an inseparable part of Azerbaijan, including by the Armenia SSR, neither the Treaty of Kars nor the Constitution of the TSFSR contained any reference to it.(9)
- The next day after the adoption on 7 July 1923 of the first Constitution of the USSR, the Central Executive Committee of the Azerbaijan SSR issued a Decree "On the Formation of the Autonomous Oblast of Nagorny Karabakh".
- The status of Nagorny Karabakh as an autonomous oblast within the Azerbaijan SSR was stipulated in the Constitutions of the USSR of 1936 and 1977.(10)
- In accordance with the Constitutions of the USSR and the Azerbaijan SSR, the legal status of NKAO was governed by the Law "On the Nagorny Karabakh Autonomous Oblast", which had been adopted by the Supreme Soviet of Azerbaijan SSR on 16 June 1981.(11)
- Under Article 78 of the USSR Constitution, the territory of a Union republic could not be altered without its consent. The borders between Union republics could be altered by mutual agreement of the Republics concerned, subject to approval by the USSR.(12) This provision was also incorporated in the Constitutions of the Azerbaijan SSR and the Armenia SSR.
- In connection with the adoption in the late 1980-s of the illegal decisions aimed at the secession of NKAO from the Azerbaijan SSR and annexation of the region to the Armenia SSR, the Supreme Soviet of the USSR and its Presidium considered on several occasions the situation with respect to the crisis in Nagorny Karabakh. All decisions adopted by the superior state body of the former USSR unequivocally recognize the inadmissibility of changing borders and the constitutionally established national-territorial division of the Azerbaijan SSR and the Armenia SSR.(13)
- Thus, the whole process of separation of Nagorny Karabakh from the Azerbaijan SSR in favor of the Armenia SSR, formally started on 20 February 1988, was accompanied by the apparent violation of the USSR Constitution, and, therefore, caused no legal consequences whatsoever.
- The correctness of this appraisal is circumstantially evidenced by the next attempt of the Armenian side to legalize the secession of Nagorny Karabakh, which was made on 2 September 1991. Unlike all previous decisions, the proclamation that day of the "Republic of Nagorny Karabakh" was grounded by the Law of the USSR "On the Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR" of 3 April 1990.(14)
- It is necessary first to note that the purpose of this Law was to regulate mutual relations within the framework of the USSR by establishing a specific procedure to be followed by Union republics in the event of their secession from the USSR. A decision by a Union republic to secede had to be based on the will of the people of the Republic freely expressed through a referendum, subject to authorization by the Supreme Soviet of the Union republic.
- At the same time, according to this Law, in a Union republic containing autonomous republics, autonomous provinces and autonomous regions, the referendum had to be held separately in each autonomous unit, the people of which retained the right to decide independently the question of staying in the USSR or in the seceding Union republic, as well as to raise the question of their own state-legal status.
- It is important to emphasize that the secession of a Union republic from the USSR could be regarded valid only after the fulfillment of complicated and multi-staged procedure and, finally, the adoption of the relevant decision by the Congress of the USSR People's Deputies.
- However, until the Soviet Union ceased to exist as international person the mentioned Law was without legal effect, since no Union republic, including Azerbaijan and Armenia, had used the procedure for secession stipulated in it.
- Until the Republic of Azerbaijan attained full independence and was recognized by the international community, the territory, on which the NKAO of the Azerbaijan SSR existed before 26 November 1991, had remained part of Azerbaijan.
2.3. State succession in respect of territory and boundaries
in the context of restoration of the state independence
of the Republic of Azerbaijan
- After the collapse of the USSR, the international legal doctrine of uti possidetis juris underlay the international, regional and national legitimation of boundaries of the newly independent states.
- According to the doctrine of uti possidetis juris, from the time of attainment by the Republic of Azerbaijan of its independence, the former administrative borders of the Azerbaijan SSR, which included also the NKAO, are recognized as international and protected by international law. This understanding is also confirmed in the known resolutions of the UN Security Council on the Nagorny Karabakh conflict.(15)
- Regarding the proposition of the Armenian side that by proclaiming the restoration of the state independence of 1918-1920 and thus becoming the successor of the then ADR Azerbaijan allegedly forfeited a right to pretend to the borders of the Soviet period, the attention should be drawn to Article 11 of the Vienna Convention on Succession of States in Respect of Treaties, according to which "[a] succession of States does not as such affect: (a) a boundary established by a treaty?.".(16) In other words, though this provision directly applies only to external boundaries of the former USSR established by international treaties, to which it was a party, it actually represents a conceptual international legal approach provided that an existing boundary continues to exist notwithstanding the succession, so that the change of sovereignty is powerless to undermine such boundaries which achieve permanence.(17)
1. Despite the apparent distortions made by the official Yerevan while interpreting the issue of consideration of the application by Azerbaijan for the admission to the League of Nations and passing over in silence the response of the League to the similar application by Armenia itself, the findings of this Organization cannot, nevertheless, serve as a basis for revision of the established territorial framework of the states. Otherwise, if to agree with the arguments of the Armenian side, then the international legal personality of Armenia will be prejudiced.
2. In accordance with the Constitution of the USSR, Nagorny Karabakh was an autonomous oblast within the Azerbaijan SSR. Pursuant to the Constitutions of the USSR and the Azerbaijan SSR, the legal status of the NKAO was governed by the Law "On the Nagorny Karabakh Autonomous Oblast" passed by the Supreme Soviet of the Azerbaijan SSR on 16 June 1981.
3. The proclamation on 2 September 1991 of the "Republic of Nagorny Karabakh" contradicted the Constitution of the USSR, according to which the territory of a Union republic could not be altered without its consent, while the borders between Union republics could be altered by mutual agreement of the Republics concerned, subject to approval by the USSR. At the same time, reference to the Law of the USSR "On the Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR" of 3 April 1990 is groundless since the obligatory mechanism envisaged therein for drawing up the secession from the USSR was used by Azerbaijan neither before nor after 2 September 1991.
4. Autonomous oblast existed until 26 November 1991, when the Supreme Soviet of the Republic of Azerbaijan adopted the Law on its abolition.
5. In accordance with the doctrine of uti possidetis juris, from the time of attainment by the Republic of Azerbaijan of its independence the former administrative borders of the Azerbaijan SSR, which included also the NKAO, are recognized as international and protected by international law. At the same time, it is important to note that the change of sovereignty as a result of the break up of the USSR and the state succession declared by the former Union republics were powerless to undermine their boundaries which achieved permanence.
Malcolm N. Shaw, "The Heritage of States: The Principle of Uti Possidetis Juris Today", 77 The British Yearbook of International Law 1996 (Oxford: Clarendon Press, 1977), pp. 75-154, at p. 90.
- *Tofig F. Musayev, LLM in International Human Rights Law, University of Essex.
- For more information about the position of Armenia see the initial reports of this country under the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, UN Documents E/1990/5/Add.36 and CCPR/C/92/Add.2; UN Document E/CN.4/2005/G/23 "Legal aspects for the right to self-determination in the case of Nagorno-Karabakh"; Speech by S.Sarkisyan, Minister of Defense of Armenia, at the parliamentary hearings on the problem of Nagorny Karabakh, 29-30 March 2005, IA "REGNUM": www.regnum.ru/news/437271.html
- Tadeusz Swietochowski. Russia and Azerbaijan: A Borderland in Transition (New-York: Columbia University Press, 1995), pp. 75-76.
- League of Nations. Memorandum by the Secretary General on the Application for the Admission of the Republic of Azerbaijan to the League of Nations. Assembly Document 20/48/108, p.2 See also The Covenant of the League of Nations (1919), in Malcolm D.Edvans (ed.), Blackstone's International Law Documents (Oxford: Oxford University Press, 6th ed., 2003), pp. 1-7, at p. 1, Article 1.
- League of Nations. Assembly Document 20/48/108, p. 4.
- League of Nations. Annex 30 B. Future status of Armenia. Memorandum agreed to by the Council of the League of Nations, meeting in Paris on 11 April 1920. League of Nations Document 20/41/9, p. 27; See also Admission of new Members to the League of Nations. Armenia. Assembly Document 209, pp. 2-3; Assembly 251.
- Extract from the Protocol of the plenary session of the Caucasian Bureau of the Central Committee of the Russian Communist Party (Bolsheviks) of 5 July 1921. For text see "To the history of formation of the Nagorny Karabakh Autonomous Oblast of the Azerbaijan SSR.. 1918-1925: Documents and Materials" (Baku: Azerneshr, 1989), p. 92.
- Treaty of Friendship between Armenia SSR, Azerbaijan SSR, Georgia SSR, on the one hand, and Turkey-on the other, concluded with the participation of the RSFSR in Kars, on 13 October 1921. Documents of foreign policy of the USSR, volume IV (Moscow: Gospolitizdat, 1960), p. 423, Article 5.
- First Congress of Transcaucasian Soviets. Zakraykom RKP edition (Tiflis: Military Commissariat Press, 1923) p. 144.
- Constitution of the USSR (Moscow, 1936), p.14, Article 24; Constitution of the USSR (Moscow, 1977), pp. 13-14, Article 87.
- Law of the Azerbaijan SSR "On the Nagorny Karabakh Autonomous Oblast", 16 June 1981 (Baku: Azerneshr, 1987), p. 3, Article 3.
- Constitution of the USSR (Moscow, 1977), p. 13.
- Resolution of the Presidium of the Supreme Soviet of the USSR "On measures concerned with the appeals of the Union republics regarding the events in Nagorny Karabakh, in the Azerbaijan SSR and the Armenia SSR", 23 March 1988. Bulletin of the Supreme Soviet of the USSR, 1988, ? 13, pp. 27-28; Resolution of the Supreme Soviet of the USSR "On the decisions of the Supreme Soviets of the Armenia SSR and the Azerbaijan SSR on the question of Nagorny Karabakh", 18 July 1988. Bulletin of the Supreme Soviet of the USSR, 1988, ? 29, pp. 20-21; Resolution of the Presidium of the Supreme Soviet of the USSR "On inconsistency with the Constitution of the USSR of the acts on Nagorny Karabakh adopted by the Supreme Soviet of Armenia SSR on 1 December 1989 and 9 January 1990 ". Bulletin of the Supreme Soviet of the USSR, 1990, ? 3, p. 38.
- Law of the USSR "On the Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR", 3 April 1990. Bulletin of the Soviet of the USSR, 1990, ?15, pp. 303-308.
- Resolutions of the UN Security Council 822 of 30 April 1993, 853 of 20 July 1993, 874 of 14 October 1993, and 884 of 11 November 1993. For texts see UN web-site: www.un.org/Docs/scres/1993/scres93.htm
- Vienna Convention on Succession of States in Respect of Treaties, 22 August 1978. For text see Evans (ed.), pp. 185-199, at p. 188.