Article by Jeykhun Mollazadeh analyses legal aspects of Nagorno Karabakh conflict. Article examine claims of involved sides from international law perspective taking in account the laws and constitution of the former USSR, treaty between commonwealth independent states signed after collapse of USSR and main principals of international law , OSCE and UN[—ATOC—] [—TAG:h2—]
a) Based on the laws and Constitution of the former USSR.
On February 20 1988, a session of the Supreme Soviet of the Mountainous Karabakh Autonomous Region (Mountainous Karabakh region) appealed to the Supreme Soviet of Armenia, Azerbaijan and the USSR to allow it to be joined to Armenia. The Azerbaijani government quickly rejected this request on the basis of the USSR Constitution of 1977, Article 78 which provides that «The territory of Union Republics may be altered by mutual agreement of the Republics concerned, subject to ratification by the Union of Soviet Socialist Republics». This constitutional act of Azerbaijan was received in Mountainous Karabakh and in Armenia with hostilities against Azeris. Strikes and mass demonstrations were organized in order to exert pressure on the central government.
However, on July 18, 1988, a special session of the Presidium of the Supreme Soviet of the USSR discussed the resolution of the Supreme Soviet of the Mountainous Karabakh region on secession from Azerbaijan and incorporation into Armenia and adopted a decision confirming that Mountainous Karabakh remains an Autonomous Region within Azerbaijan. The response to this decision in Mountainous Karabakh was again strikes and mass protests.
All attempts of Azeri authorities to discuss possible solutions to existing problems in the Region with local Armenian authorities of Mountainous Karabakh were rejected. Representatives of the Azeri government visiting Stepanakert to hold negotiations were attacked and beaten.
On December 1, 1989, the Supreme Soviet of Armenia adopted a resolution on unification of Mountainous Karabakh with Armenia. Such a resolution violates Azerbaijani territorial integrity and makes the territorial claims official.
The Autonomous Regions in the former USSR did not have constitutions as did Autonomous Republics, neither had the right of secession as did the Union Republics. The principles of granting autonomous status (Region or Republic) to the national minorities in the former USSR did not have any logical basis and their creation had more political aims rooted in imperialistic rule, than desire for protection of minorities? rights.
b) Based on the Treaty of the Commonwealth of Independent States.
After the coup d’etat failure and the USSR’s collapse, Armenia and Azerbaijan as independent states entered the Commonwealth of Independent States. One of the major principles of the Commonwealth Treaty is inviolability of the borders of the constituent sovereign states, that is, territorial integrity. However, the Armenian population in Mountainous Karabakh held a referendum, declared the establishment of the «Mountainous Karabakh Republic» as an «independent» state and appealed to the Commonwealth for membership. This separatist action contradicts to the principles of the Treaty, signed by 11 sovereign republics, the Helsinki Final Act and International Law, and was not recognized by the Commonwealth or any other states of the world.
c) Based on International Law, OSCE and U.N. principles
At the present time Armenia has changed its policy towards the Mountainous Karabakh problem. Former Armenian president Ter-Petrosyan and other officials stated that Armenia had no territorial claims to Azerbaijan and Mountainous Karabakh was the internal matter of Azerbaijan and the problem of self-determination of the Armenian population there. Even the official approach of the Armenian government changed, but the resolution on incorporation of Mountainous Karabakh still exists. Armenian officials say that it is not valid, but it was not annulled and officially still on the book. The deputies elected in Mountainous-Karabakh are still members of the Armenian Parliament and the Armenian soldiers are fighting on the territory of Azerbaijan and killing its citizens. Though Armenia’s authorities changed their strategy and stance on the problem, the facts show the volume of political and military interference of Armenia into internal affairs of the Republic of Azerbaijan.
Armenians of Mountainous-Karabakh also changed their position at present stage of the conflict. At present time they do not voice their desire to join Armenia, but declare their goal to establish an independent state based on the principle of the people?s right to self-determination. In that case, it is very important to differ between the rights of «people» and the rights of «minorities». Armenians living in Azerbaijan are national minority, which has a mother-nation in Armenia. Karabakh Armenians have the right to internal self-determination, meaning the right to determine their status for effective participation in political, social, economic, cultural, religious and public life in Azerbaijan in a manner, which is not threatening the territorial integrity of Azerbaijan and its sovereignty. After the collapse of Russian Empire the Armenian people exercised their right to self-determination on the territory of present Armenia plus Zangesur, given to it by the Bolshevik government after the occupation of the two republics in 1920-21. The Armenian people achieved independence and their right to self-determination on the territory of the present Armenia again after the collapse of the Soviet Union in 1991.
Strictly legal arguments against secession were summarized by Lee C. Buchheit and include the following:
1. That the right of self-determination of people can only be exercised once on the basis of the maxim pacta sunt servanda;
2. International Law is the law of states and not of peoples or individuals. States are the subject of international law and peoples are the objects of that law;
3. The so-called principle of mutuality; as states cannot oust a part of them, equally a part of a State cannot forcefully secede.
How many times will the Armenian people exercise its right to self-determination by building independent states? Today they plan to do it on the territory of Azerbaijan; by this logic in the future it can took place in Georgia, Russia, even California as well. Armenian scholars emphasize that Mountainous Karabakh is a special case and Karabakh Armenians differ from the other Armenian communities outside of Armenia, as they had autonomous status, which is the starting point for self-determination and as a result of it, for secession. But the Autonomous Region of Mountainous Karabakh did not have the right of secession on the basis of the Constitutions of the former USSR and Azerbaijan. So, there is no legitimate difference in terms of secession, between Armenians of Mountainous Karabakh and Armenians living in compact communities in other countries. No doubt that Armenians living in Mountainous Karabakh in Azerbaijan or in the territory of other states are national minority and have the right to determine their status inside the states they inhabit, but should not take measures for its dismemberment.