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
on5 July 1921,
decidedto retain
Nagorny Karabakh within the Azerbaijan SSR. At the same
time, the Azerbaijan SSR was recommended to confer Nagorny
Karabakh a broader autonomy.(7)
On13 October
1921the 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 on13
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 on7
July 1923of 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 on16
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 on20
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 2September
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 ofuti
possidetis jurisunderlay
the international, regional and national legitimation of
boundaries of the newly independent states.
According to the doctrine ofuti
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)
Conclusion
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 ofuti
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.
*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.
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.
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