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The legal aspects of Nagorno-Karabakh conflict by Svante Cornell

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This article is based on the work of Svante Cornell “UNDECLARED WAR – The Nagorno-Karabakh Conflict Reconsidered“.

As far as this decision of December 1st, 1989 to incorporate Nagorno Karabakh into Armenia is concerned, the present Armenian position is that it is not liable for decisions taken in the Soviet times. Vahan Papazyan, then Armenian forei gn minister, speaking at a conference in Stockholm and as a direct answer to a question, dismissed it by repeatedly claiming that “It is not an important issue for the resolution of the conflict” and that it is a decision made obsolete since it was taken by the Armenian SSR, and not the Republic of Armenia.[ref]Conference held by Papazyan at the Foreign Policy institute in Stockholm, in February 1996. The question was asked by the author, following Papazyan’s claim that Armenia considers Nagorno Karabakh a separate territorial entity.[/ref]

By this argument, a basic principle of International Law is being ignored : That whenever a state succeeds another, it is liable for the decisions taken by the former state unless it declares the invalidity of these decisions at the transition of power. Since Armenia has made no such declaration, it can not claim the invalidity of this decision. Quite to the contrary, the deputies from Karabakh are still members of the Armenian parliament. An even more blatant fact is that Serzhi k Sarkissian, formerly defense minister of Nagorno Karabakh, was appointed defense minister of the Republic of Armenia in August 1993.

Nevertheless, there seems to be a change in Armenian rhetoric on the status of Nagorno Karabakh. Rather than to openly seek a union of the two entities, Armenia now tries to distance itself from the Karabakh Armenians, which, even in Ye revan’s eyes, have gotten out of hand and have turned into a liability to the regime, which is difficult to control and which has dragged Armenia into a serious economic condition and which goes against any move from Yerevan’s side to seek compromise with the Azeris to reach a solution to the conflict. This is the reason why Yerevan claims that Nagorno Karabakh is a separate entity, despite the fact that the two entities are for every practical purpose functioning as one state. Recent reports show that Ar menia is intensively trying to establish a Fait Accompli by integrating Karabakh into Armenia,[ref]See International Herald Tribune, 20 September 1996, “Enclave Builds a Lifeline Out of Azerbaijan”[/ref] so that Nagorno Karabakh can practically never become a part of Azerbaijan again.

The Armenian-Azeri conflict can be analyzed from three distinct legal frameworks. First of all, the constitution of the former Union of Soviet Socialist Republics. Second, from the treaty of the Commonwealth of Independent States ; and Third, based on International legal principles.

When the Supreme Soviet of the NKAO demanded to be joined to Armenia on February 20, 1988, the demand was rejected by the Supreme Soviet of Azerbaijan on the basis of Article 78 of the USSR constitution of 1977. Whereas the demand from Nagorno Karabakh was based on Article 70, which affirms the rights of peoples to self-determination (the distinctions between peoples and minorities will be treated below), Art. 78 states that territory may be altered only by mutual agreement of the concerned republics and subject to ratification by the USSR.

On July 18th, 1988, the Presidium of the Supreme Soviet of the USSR – that is the highest existing instance in the Union – confirmed the status of Nagorno Karabakh as an autonomous region within Azerbaijan.

This successively led to the resolution of the Armenian Supreme Soviet cited above, where a decision is taken to incorporate Nagorno Karabakh as an integral part of the Republic of Armenia. This resolution violates the territorial integ rity of Azerbaijan, and what is more, it makes the territorial claim official.

According to the Soviet constitution, Union Republics had the theoretical right to secede from the USSR. Autonomous republics had constitutions, which autonomous regions (Oblasty) did not. Neither had the right to secession. Thus, the c laims and decisions of the Nagorno Karabakh Autonomous Oblast had no legal basis.

However, the decision of Armenia to unite with Nagorno Karabakh binds it as a legal party to the conflict. Although Armenia, faced with U.N. resolutions, claims that Nagorno Karabakh is a separate entity over which it has no jurisdictio n or control other than ‘friendly advice’, the decision of December 1, 1989 has never been abrogated or otherwise suspended and deputies from Nagorno Karabakh are still members of the Armenian parliament. Consequently, the Republic of Armenia can not argu e that it is not responsible for the actions of what it, legally speaking, considers the citizens of its Republic in Karabakh.

  • As far as the treaty of the Commonwealth of Independent States (CIS) is concerned, Azerbaijan and Armenia are (presently, although Azerbaijan entered only after Russian pressures) both members of the CIS. One of the major principl es of the treaty of the CIS is the inviolability of the borders of the constituent states. Nevertheless, the Armenian population in Nagorno Karabakh held a referendum, declared independence, and applied to the Commonwealth for membership as an ‘independe nt state’. As this act is against the principles of the treaty of the CIS, no member state recognized the entity – not even Armenia.
  • From the point of view of International law, our first concern is with the distinction between refugees and internally displaced persons. This difference is important, since in the case of a refugee crisis the international communi ty is more or less bound to intervene with humanitarian aid. However if one talks about internally displaced persons, then the whole issue can be referred to as the internal matter of a state, thus allowing other states and international organizations to exempt themselves from the ‘duty’ of providing humanitarian aid. From a moral point of view the distinction is preposterous – treating human beings who have been uprooted from their homes differently according to their crossing or not of international b orders – and seems more motivated by an intention to limit the scope of the term refugee than any logical, humanitarian concerns.

However, the Azerbaijanis leaving Armenia in 1988 and 1989 have been termed refugees. This does not necessarily make sense if one is to apply the ‘logic’ of the definition. In 1988, Armenia and Azerbaijan belonged to the same state—the USSR. The fact that they were different republics is irrelevant since the border between the republics was not an internationally recognized border between sovereign states. Logically, these people were internally displaced persons, in any case until the independence of both republics in 1991. Thus they were turned into refugees long after they left Armenia ; however one may wonder if it is logical to change the denomination of a person according to events occurring after the exodus?

And, if Nagorno Karabakh was to be accepted as a territory apart from Azerbaijan, will the 630’000 internally displaced suddenly be termed as refugees? It is clear that in this conflict, the definition of refugee has been applied arbit rarily. The reasons for this are unclear. It may be due to simple incompetence of international and western authorities, but it may also be related to the interests of western governments in neglecting the conflict, legitimizing their indifferent attitude by referring to the conflict as internal.

The claim of the Armenians of Nagorno Karabakh is based upon ‘the rights of people’s to self-determination’, as confirmed by Article One of the International Covenant on Civil and Political Rights (ICCPR). However it is crucial here to recall the difference between peoples and minorities. Armenians in Azerbaijan can not be termed a ‘people’, given the fact that they have a motherland in Armenia. Thus they are in legal terms a national minority. As such, they enjoy the rights given to t hem by article 27 of the same covenant, stating that “…minorities … shall not be denied the right … to enjoy their common culture, to profess their own religion, or to use their common language.” As far as self-determination is concerned, the Armenians of the NKAO have the right to internal self-determination which enables their free participation in the political life of Azerbaijan, pursue their economic, social and cultural development. Self-determination does not necessarily mean secess ion. As confirmed by the U.N. Security Council,

Nothing in the foregoing paragraphs concerning the principle of equal rights and self-determination of peoples shall be construed as authorizing or encouraging any action which would dismember or impair … the territorial integrity of sovereign and independent states.[ref]U.N. General Assembly, resolution 2625 adopted on October 24, 1970.[/ref]

The strictly legal arguments against secession were summarized by the distinguished scholar of International Law Lee C. Bucheit:

  • The right of self-determination can only be exercised on the basis of the maxim Pacta Sund Servanda;
  • International Law is the law of states;
  • states are the subjects of international law and peoples, minorities or majorities, are the objects of that law;
  • A state cannot oust one of its provinces, neither can a province secede.

The Azerbaijani-Armenian conflict illustrates the inherent contradiction between two important principles of international law. This is the question of peoples’ self-determination versus a state’s territorial integrity. This issue is he avily debated, but it is important to note that nothing in the assertion of peoples’ right to self-determination allows for the use of force to alter internationally recognized borders or to apply ethnic cleansing. Thus the Karabakh Armenians’ struggle fo r self-determination or unification with Armenia must be conducted in a democratic form. The struggle for self-determination, in itself, clearly reflects the desire of the Armenian population of Karabakh. This is not illegitimate, nor is it contrary to In ternational Law. What is illegitimate and illegal is the practices of scorched earth and brutal attacks on civilian population, notably in areas that had a homogeneous Azerbaijani population, in the intention to militarily acquire as much territory as possible.

The violations of International Law by the Republic Armenia have been remarked in one international forum : The Charter of Paris for a new Europe completed in 1990. In this charter it was recognized that “Armenia violates the terri torial integrity of Azerbaijan by sending armed forces into Nagorno Karabakh. Such use of force is illegal unless authorized by the U.N. Security Council.”[ref]Conference on Security and Cooperation in Europe, Charter of Paris for a New Europe, Paris, 1990[/ref] Although Armenia denies the presence of its troops in Karabakh, it has been well documented. For example, the conclusion of Human Rights Watch / Helsinki can be taken as an example of the observations of impartial observers:

As a matter of law, Armenian troop involvement in Azerbaijan makes Armenia a party to the conflict and makes the war an international armed conflict, as between the government of Armenia and Azerbaijan.30

Thus, it becomes clear that the conflict between Armenia and Azerbaijan is nothing else than Undeclared War.

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