Legal aspects of the Nagorno-Karabakh conflict

«Nothing in the foregoing paragraphs (the principle of equal rights and self-determination of peoples) shall be construed as authorizing or encouraging any action which would dismember or impair, totally or it part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color»1.

Armenians in Azerbaijan as a national minority have the right to internal self-determination which enable their free participation in the political life of Azerbaijan, pursue their economic, social and cultural development, to establish and maintain, without discrimination, free and peaceful contacts across frontiers with citizens of Armenia to whom they are related by national, religious and linguistic ties. Self-determination does not necessarily mean secession, particularly by the use of force.

The problem of self-determination, and as result of it secession, is a very complicated question, especially, in such area as the Caucasus, where the state borders don’t coincide with the ethnic ones. The secessionist approach in this area will lead to instability, confrontation, and bloodshed. It will not serve the purposes of friendly relations between the Caucasian peoples. The present situation in Caucasus proves it, particularly, Mountainous Karabakh in Azerbaijan, South Ossetia and Abkhazia in Georgia. The demands for the secession of Mountainous Karabakh from Azerbaijan after the deportation of all Azeris from Armenia and later from Mountainous Karabakh, flagrant violation of their right to self-determination seems to be not only illegal, on the basis of the existing international norms, the principles of the OSCE and UN, but also immoral.

So, the solution of minorities? problem in the framework of the present borders and on the basis of Art 27 of the Covenant on Civil and Political Rights are more constructive than secession, which was always the factor of destabilization in the Caucasus.

The express acceptance in the relevant UN resolutions of the principles of the national unity and the territorial integrity of the State implies non-recognition of the right of forceful secession.

«The right of peoples to self-determination, as it emerges from the United Nations, exists for peoples under colonial and alien domination, that is to say, who are not living under the legal form of a state. The right to secession from an existing State Member of the United Nations does not exist as such in the instrument or in the practice followed by the Organization, since to seek to invoke it in order to disrupt the national unity and the territorial integrity of a State would be a misapplication of the principle of self-determination contrary to the purposes of the United Nations Charter»2.

This is how a prominent expert on international law and the problems of self-determination Antonio Cassese describes the issue in his article «Self-Determination of Peoples»: «The right to self-determination, I have said, belongs also to «national» peoples in a multi-national state like the federated republics of the USSR. Unlike ethnic minorities in unitary states who are not «peoples» for purposes of Article 1, national peoples, federated in a sovereign state and enjoying distinct constitutional status, enjoy the right of external self-determination. This includes the right to independence, which the central sovereign, if a party to the Covenant, is bound to honor». Armenians living in Azerbaijan and Georgia, Georgians living in Azerbaijan and Azeris who lived in Armenia and are living in Georgia are considered to be ethnic minorities who have the rights formulated in Art 27 of the Covenant on Civil and Political rights, but not in Art 1 of the same Covenant.

The free interpretation of Art 1 of the Covenant on Civil and Political Rights, due to the self-determination of peoples with regard to the Armenian population of Mountainous Karabakh, used by Armenian side, is nothing more than the speculation on UN documents in order to justify the military occupation of Azerbaijani territory, inhabited predominantly by Armenians. Commenting UN practice, Professor Van Dyke wrote that the UN would be in an extremely difficult position if it had to interpret the right to self-determination in such a way as to invite or justify attacks on the territorial integrity of its own members3.

Armenia and Azerbaijan became the members of the OSCE and the United Nations, objects of International Law, and thus are obligated to follow its principles. However, Armenia violates the territorial integrity of Azerbaijan, as well as the principles of the United Nations, by sending armed forces into Mountainous Karabakh. Such use of force is prohibited, according to Art 2 (4), unless the UN Security Council authorizes Armenia?s use of force, which is irrelevant in this case. Armenia’s invasion of the part of Azerbaijani territory is therefore, a violation of the prohibition of the use of intend-state force in the UN Charter Art 2 (4) and inconsistent with Art 2 (3) of the UN Charter which states that the conflicts, between states shall be settled in a peaceful manner.

«In accordance with our obligations under the Charter of the United Nations and commitments under the Helsinki Final Act, we renew our pledge to refrain from the threat or use force against the territorial integrity or political independence of any State, or from action in any other manner inconsistent with the principles or purposes of those documents. We recall that non-compliance with obligations under the Charter of the United Nations constitutes a violation of international low»4.

Armenia denies the presence of its troops in Mountainous Karabakh, trying to convince the international community that it does not violate the territorial integrity of Azerbaijan and norms of the international law. However, there are many facts showing the participation of the Armenian Army soldiers in military and terrorist actions in the territory of Azerbaijan. All these facts are based on investigations, photo and video materials. The presence of Armenian military troops on the territory of Azerbaijan is said to be for «self-defense» purposes. In that case, it is not clear, why Armenian «self-defenders» attacked the Azeri towns and villages, burnt their houses, killed civilians and evicted the Azeri population from Mountainous Karabakh. The reference to self-defense is an attempt to justify the undeclared war against Azerbaijan over five years, during which the international community was mostly misinformed by USSR information agencies and the Armenian propaganda machine. But, from the beginning of 1992 several CSCE, UN fact-finding missions visited the area and gathered more detailed and objective information about the conflict over Mountainous Karabakh. On February 27-28 the first CSCE fact-finding mission presented its report on the conflict between Azerbaijan and Armenia over Mountainous Karabakh to the Committee of Senior Officials of the CSCE. The members of the Committee adopted the recommendations to conflicting sides, which was based on the principle of inviolability of the borders (one of the basic principles of CSCE) and human and minority rights protection. Azerbaijani government stated that local and cultural autonomy can be given to Armenians in Mountainous Karabakh and they are ready to negotiate on that matter with the participation of international mediators. Unfortunately, the Armenian side is opposing the recommendation of the Committee of Senior Officials of the CSCE relevant to the inviolability of the borders between Azerbaijan and Armenia. The Armenian side considers that secess on of Mountainous Karabakh from Azerbaijan and establishment of independent Mountainous Karabakh republic is the only resolution of the conflict. Such an option is not acceptable to Azerbaijan as it violates its territorial integrity and sovereignty and contradicts to OSCE and UN principles:

«Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations» – says UN Charter.

But Armenia is continuing the forcible occupation of the territories of Azerbaijan, planning to annex the territory of Azerbaijan and link Mountainous Karabakh with Armenia. Such actions by Armenia will escalate the tension and the war between Azerbaijan and Armenia, and will threaten the stability of the whole region.

«No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, aimed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are in violation of international law»6.