The Nagorno-karabakh conflict has been going on since 1988. The conflict between Armenia (although it denies its involvement in the conflict claiming that it is just “an interested party”) and Azerbaijan is considered to be the most important conflict in the South Caucasus. Though the object of this conflict is Nagorno-Karabakh Autonomous Region (the region was called so as an administrative-territorial area during the Soviet time), seven other districts of Azerbaijan which have nothing common with this autonomous region are also occupied by the Armed Forces of Armenia. So, as a result of the conflict approximately 20% of the territory of the Republic of Azerbaijan is still under occupation and more than one million Azerbaijanis have become refugees and internally displaced persons. In May 1994 the parties concluded cease-fire agreement which is still in force today. The Republic of Azerbaijan states that Armenia should be recognized as an aggressor according to the Charter of the UN, but it is not the case yet. The Republic of Armenia claims that the Armenians of Nagorno-Karabakh are entitled to secede from Azerbaijan and build their own state on the base of the self-determination principle of international law. Now the Minsk Group of the OSCE is exercising a mediation function between the parties to the conflict. No political agreement on the settlement of the conflict has been achieved yet.
Keywords: Nagorno-Karabakh conflict, territorial integrity, self-determination, peoples, minorities, occupation, uti possidetis.
Before speaking about the legal aspects of the Nagorno-Karabakh conflict, we should tackle some issues concerning the legal status of this territory. In Soviet times this enclave, called Nagorno -Karabakh Autonomous Region (hereinafter referred as NGAR) had no direct land border with Armenia. First of all, it should be mentioned that after the collapse of the USSR, Nagorno-Karabakh remained within the state of Azerbaijan in terms of international law. In their struggle for political status of the region, the Armenian side illegally claimed either the annexation of this area to the Republic of Armenia or its independence. According to their major arguments, prior to the conflict 75% of the population of Nagorno-Karabakh comprised the Armenians and they were imposed to a socio-economic discrimination and cultural exploitation by Azerbaijan for decades. As for the Republic of Azerbaijan, it fairly demands the protection of its territorial integrity on the base of the universally recognized norms and principles of international law. At the same time, Azerbaijan offers high degree of autonomy for Nagorno-Karabakh only within its territorial integrity. On the other hand, Armenia continuously insists that Nagorno-Karabakh had historically been their native land and therefore, despite the fact that NGAR had been within the former Azerbaijanian SSR (Soviet Socialistic Republic), it can not remain within the independent state of Azerbaijan after the collapse of the USSR. According to the official position of Armenia in this regard the boundaries in the former USSR Republics were just of an administrative character.
Basic legal aspects of the conflict can be summarized as above. But, what response do the national law valid during the Soviet period as well as international law give to the allegations of Armenia?
Firstly, it should be mentioned that according to the official position of the Republic of Azerbaijan Armenia must be recognized as a directly participating party to this conflict. But, Armenia declares that this is a conflict between Azerbaijan and Nagorno-Karabakh, and Armenia is involved here just as «an interested party». Furthermore, they declare that the Armenian population of Nagorno-Karabakh has the right to self-determination and they are entitled to establish their own independent state in accordance with this right.
Since this conflict was an internal affair of the USSR prior to its collapse, relevant norms of the Soviet law were applicable to this conflict. For analysis of the conflict from the legal point of view, I will address the last Constitution of the USSR of 1977.
After the collapse of the USSR the nature of the conflict has changed. Therefore, relevant norms and principles of international law should be applied to the conflict. I will tackle these issues from two aspects: 1) Firstly, Nagorno-Karabakh conflict will be discussed as an internal affair of the Republic of Azerbaijan; here I will touch upon the issue of national minorities according to international law and examine whether the Armenian population of Nagorno-Karabakh was entitled to secede from Azerbaijan; 2) Secondly, the Nagorno-Garabagh conflict will be tackled as an international armed conflict between the Republic of Armenia and the Republic of Azerbaijan.
1. Legal assessment of the Nagorno-Garabagh conflict according to the Soviet law
1.1. Hierarchy of regional unions by their status according to the Constitution of the USSR
According to Art. 71 of the Constitution of the USSR from 1977, the Soviet Union consisted of 15 union republics and these republics stood on the highest level of hierarchy of regional unions, established on national basis. The above mentioned highest level of hierarchy was followed by the undermentioned regional unions, established on a national basis: а) autonomous republics; b) autonomous regions (oblasti); c) national regions (okrugi). According to Art. 72 of the Constitution, only union republics were entitled to secede freely from the USSR. On the threshold of the demise of the USSR, a new comprehensive law, regulating the mechanism of such secession, was adopted (we will touch upon this law again below).
1.2. The Nagorno-Garabagh conflict as an internal affair of the USSR
Prior to the collapse of the USSR, the Nagorno-Garabagh conflict was not an issue of international nature, but rather an internal affair of the USSR. Notwithstanding this, the Armenian side was trying to apply the right to «self-determination» to prove their arguments. However, as the conflict was developing from the very beginning within the framework of the communist ideology in the USSR, discussions in this field were conducted not on the base of the right to self-determination, as stipulated by international law, but upon «the Leninist principle on self-determination». As the relevant Leninist principle was more popular in the USSR than the documents adopted by the UN in this field and as it supported the right to self-determination for all nations (including full secession), supporters of the secession of Nagorno-Garabagh were benefiting much from this idea. Naturally, such idea had nothing common with the norms and principles of international law concerning the right to self-determination.
2. Did the USSR Constitution entitle Nagorno-Garabagh to secede from the Azerbaijanian SSR?
2.1. Status of Nagorno-Garabagh in the USSR Constitution
Firstly, we should investigate the status of Nagorno-Garabagh according to this Constitution. According to Art. 86 of the Constitution Nagorno-Garabagh was an autonomous region. The Article states that Autonomous Region is an integral part of the territory of the respective Union Republic. In Art. 87.3. of the Constitution Nagorno-Garabagh is mentioned as an autonomous region constituting an integral part of the Azerbaijanian SSR.
2.2. Secession possibilities for Nagorno-Garabagh
As already mentioned, only the union republics were entitled to secession and such right could be exercised in respect to the entire USSR. But the Armenians of Nagorno-Garabagh were claiming secession from the Azerbaijanian SSR and annexation to the Armenian SSR. The question is whether the Armenian population of Nagorno-Garabagh was entitled to put forward such a demand on the base of the USSR Constitution? In this respect, like the Constitution of the former Yugoslavia, the USSR Constitution also contained relevant Art. 78. That Article stated:
„The territory of a Union Republic may not be altered without its consent. The boundaries between the Union Republics may be altered by mutual agreement of the Republics concerned, subject to ratification by the Union of Soviet Socialist Republics.”
As it is evident, unlike autonomous territories, territorial integrity of the union republics was regulated by the constitution and any change to it could be made only by consent of the relevant republic. On the other hand, there was no agreement between the Azerbaijanian SSR and the Armenian SSR on the secession of the Nagorno-Garabagh Autonomous Region from the Azerbaijanian SSR.
Resolution adopted in 1989 by the Supreme Soviet of the Armenian SSR on annexation of Nagorno-Garabagh to Armenia was the highest point of these processes, which completely contradicted to the provisions of the above mentioned constitution.1Taking into consideration that in 1988, as the conflict broke out, the USSR still existed as a state and its constitution was still in force, one understands the anti-constitutional nature of the demand of the Nagorno-Garabagh Armenians. Moreover, the special meeting of the Presidium of the Supreme Soviet of the USSR, held on 18 July 1988, discussed a request of the Council of the NGAR on secession of Nagorno-Garabagh from the Azerbaijanian SSR and its annexation to the Armenian SSR, and decided to keep the NGAR in the composition of the Azerbaijanian SSR.
2.3. Alma-Ata Declaration of 21.12.1991 and the issue of territorial integrity
When we compare dismembration processes in the former Yugoslavia and the USSR, it becomes evident that unlike Yugoslavia, union republics of the USSR2 regulated the process of dismembration in line with international law, i.e. through the Alma-Ata Declaration adopted on 21 December 1991. Preamble of the declaration says that the states adopt the declaration by recognizing and respecting territorial integrity as well as inviolability of existing borders of each of the signatory states. This provision once more confirms that union republics had taken an obligation to recognize existing borders even upon collapse of the USSR. By not recognizing territorial integrity of Azerbaijan in its further practice the Republic of Armenia has violated also this provision.
In conclusion, we may say that valid legislation during the Soviet period did not envisage possibilities of secession for autonomous regions, and borders among union republics could be changed only upon their consent. Taking all these into consideration, it is noteworthy that separatist actions of the Armenians of Nagorno-Garabagh have violated relevant provisions of the USSR Constitution as well as territorial integrity of the Azerbaijan SSR within the USSR.
3.3. Was the Armenian population of Nagorno-Karabakh entitled to secede from Azerbaijan for establishing their own state as national minority?
a) Difference between the notions of people and national minority
b) Examples from history
c) Role of the Principle Uti possidetis iuris in this regard
3.4. Assessment of the referendum, held on December 10th 1991 in Nagorno-Karabakh, in terms of international law
4.1. Prohibition of use of force according to the UN Charter
4.2. Some reflections on the Resolutions of the UN Security Council on the Nagorno-Karabakh Conflict
4.2.1. Measures for the maintenance of international peace and security in accordance with Chapter VII of the UN Charter
4.2.2. Legal basis for resolutions adopted by the SC on the Nagorno-Karabakh conflict according to the UN Charter
4.3. Definition of peace under Article 39 of the UN Charter
4.4. Assessing actions of the Republic of Armenia as an act of aggression
4.5. Intervention possibilities of the UN Security Council in presence of threat to the peace
- Although the Republic of Armenia claims to be neutral in the conflict, the above mentioned resolution of the Supreme Soviet of the Armenian SSR has not been cancelled up today. Even in February of 2003, referring to this resolution, one of the Yerevan courts stated that the resolution had resolved not only the issue of annexation of Nagorno-Garabagh to Armenia, but also the naturalization of the Nagorno-Garabagh Armenians (i.e. citizens of Azerbaijan) as citizens of the Republic of Armenia. This ruling of the court resolved disputes around the citizenship of President Robert Kocharyan (as he was born in Nagorno-Garabagh, his candidacy did not meet the criteria of citizenship in presidential elections). In Azerbaijan this ruling was criticized as an act against territorial integrity of Azerbaijan. In Armenia it was assessed as an act against sovereignty and independence of Nagorno-Garabagh (?!) and condemned
- International Legal Materials (1992), p. 148. These republics were as follows: The Republic of Azerbaijan, the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Moldova, Russian Federation, the Republic of Tajikistan, the Republic of Turkmenistan, the Republic of Uzbekistan and Ukraine. At that time 3 Baltic republics had already gained independence and been admitted to the UN on 17.09.1991