Nagorno Karabakh Legal Folder
After the Russian Empire collapsed the formation of new independent states began in different parts of the empire, including the South Caucasus. On May 26, 27 and 28, 1918, Georgia, Armenia and Azerbaijan declared their independence.
The efforts to raise the problem of Nagorno Karabakh before the USSR central bodies were undertaken in 1930s, 1945, 1965, 1967, 1977, but all of them were severely suppressed. The Karabakh movement entered a new stage at the end of 1987. Rallies and demonstrations with the participation of tens of thousand inhabitants of the Oblast were the main characters of this stage.
The legal peculiarity of the Nagorno Karabakh conflict is that this issue could be simultaneously discussed both in the realm of territorial delimitation between Armenian and Azerbaijani peoples and a internationally recognized fundamental principle of equality of peoples and their right to master their own destiny.
Internationalization of the Karabakh problem
For the first time the Nagorno Karabakh problem appeared as an international dispute in 1918, after collapse of the Russian Empire and the necessity of territorial delimitation between Armenia and Azerbaijan.
In July 1918 the Declaration of the First Congress of the Armenian Karabakh proclaimed self-government of the region and creation of a National Council and Government. The fact that Nagorno Karabakh existed as a distinct self-governed territory was confirmed by signing the August 26, 1919 Agreement between Azerbaijan and Nagorno Karabakh. Entering into political intercourse with the Nagorno Karabakh authorities, namely - the National Council, Azerbaijan thus recognized the legitimate status of Nagorno Karabakh.
It is worth mentioning that Azerbaijan's borders were not fixed in the Constitution of the Azerbaijani Republic 1918-1920. That is why the in the December 7, 1920 letter of the head of Azerbaijani delegation to the League of Nations Topchibashev addressed to the President of the League of Nations Paul Hymans, Azerbaijani official motivated the claims of his country on Karabakh by the decision of a former Allied representative in the Caucasus. (1)
The Azerbaijani Republic of 1918-1920 was never recognised
by the international community, and by the League of Nations, in particular.
The League not only refused the official recognition of the Azerbaijani
Republic, but also its application for the membership. At its forth
meeting on December 1, 1920, the 5th Committee elected by the Assembly
of the League of Nations having examined the request for admission of
the Republic of Azerbaijan arrived at the following conclusion:
The decision of the Committee was adopted unanimously in the following terms: "That the Committee, after having considered the Report of the Sub-Committee with regard to Azerbaijan's request for admission to the League of Nations, reports unfavorably with regard to its admission and refers the question back to the Assembly." (4)
In 1918-1920 Nagorno Karabakh, thus, was not part of the Azerbaijani Republic, regardless of its efforts to annex Karabakh by force.
Sovietization of NK and its transition to Communist Azerbaijan
On April 28, 1920 the Soviet rule was established in Azerbaijan. Following this military clash between the Russian Soviet Federative Socialist Republic (RSFSR), which intended to occupy the entire Transcaucasus, and the Republic of Armenia broke out. On August 10, 1920 the RSFSR and the Republic of Armenia signed an agreement, according to which Soviet Russia recognized Armenia's independence and complete sovereignty, while occupying disputed territories, including Karabakh. However, according to the agreement "the occupation of disputed territories, including Nagorno Karabakh, by Soviet troops, does not predetermine the issue of the rights of the Republic of Armenia or Azerbaijani Soviet Socialist Republic on these territories". Thus, Nagorno Karabakh was not, at that time, recognized as a part of Soviet Azerbaijan.
On November 29, 1920 the Soviet rule was established in Armenia. On November 30 and December 1 of the same year, without any pressure from the outside Azerbaijan declared that Nagorno Karabakh belonged to Armenia, thus, in fact, recognized illegitimacy of previous claims to Nagorno Karabakh. Being unable to find any arguments on this issue, official Baku now states that such declaration does not exist. However, in state archives of Armenia there are documents, including newspapers of the time where the declaration was printed, in particular, the December 7, 1920 issue of the Communist newspaper printed in Armenian.
On June 3, 1921 the Caucasian Bureau of the Russian Communist Party of Bolsheviks (RCPB), unanimously decided to include in the declaration of the Armenian Government the sentence that Nagorno Karabakh belonged to Armenia. The head of Azerbaijan Narimanov also participated in that session. In accordance with the decision of the Caucasian Bureau, the Government of Soviet Armenia adopted a Decree of the following content: "Based on the declaration of the Revolutionary Committee of the Azerbaijani Soviet Socialist Republic and agreement between the Socialist Republics of Armenia and Azerbaijan, henceforth Nagorno Karabakh is declared to be an integral part of the Socialist Soviet Republic of Armenia". (5)
On July 4, 1921 at the Plenum of the Caucasian Bureau of the RCPB Azerbaijani side submitted a proposal on incorporating Nagorno Karabakh into Azerbaijan. However, this proposal was rejected and it was decided to keep Nagorno Karabakh as part of Armenia. The Caucasian Bureau also decided to recognize the necessity of conducting a referendum in Nagorno Karabakh formally ensuring the right of nations to self-determination.
However the decision had not already harmonised with the Bolshevik's policy. In this connection, on the next day, July 5, the then Bolshevik Russian people's commissar (minister) of the national affairs, Joseph Stalin, demanded to convene special plenary session of the Caucasian Communist Party bureau. Under his pressure a new resolution was adopted. According to this resolution Nagorno Karabakh was transferred to Azerbaijan Soviet Socialist Republic providing it a wide regional autonomy with administrative center in the town of Shushi. The 5 July resolution in contrast to the 4 July resolution did not have a single word about the possibility of conducting referendum in Nagorno Karabakh.
The decision of the Caucasian Bureau of the Russian Communist Party (of Bolsheviks)) is per se illegal, and the body adopted the decision was not authorized to do it. Azerbaijan, trying to make legitimate its claiming to Karabakh has been relying exactly on this illegal and incompetent decision.
On July 7, 1923 Autonomous Oblast (Region) of Nagorno Karabakh (subsequently renamed into Nagorno Karabakh Autonomous Oblast) was created on the part of its territory. The rest of Nagorno Karabakh was included into the Azerbaijan SSR. Of these territories only Shaumian region remained in the form of the separate administrative unit (although its territory reduced almost to half). Other territories inhabited by Armenians were repeatedly divided and by 1988 they were included in Khanlar, Kedabek, Shamkhor regions (mountainous parts and foothills). Moreover, to exclude any possibility of a common border between Armenia and Karabakh, while delimiting the south-western frontiers of the Nagorno Karabakh Autonomous Oblast, Lachin and Kelbajar regions were formed. Up to 1930 Nagorno Karabakh had a common border with Armenia in Lachin region (Great Soviet Encyclopaedia, 1929, volume I, part "Azerbaijan" and volume III, part "Armenia"). Zangezur was also divided in favour of Azerbaijan to cut Nagorno Karabakh from Armenia. When Azerbaijan recognised Zangezur as an integral part of Armenia its territory was almost twice its present day territory. At the time Zangezur Uyezd (district) was understood as Zangezur. Zangezur uezd included the territories of present day Kubatlu and Zangelan regions and most of the present day Lachin and Jebrail regions (Atlas of the Azerbaijani SSR, 1963, p 210-212).
The secession of Nagorno Karabakh from the USSR
The new stage of Karabakh movement began on February 20, 1988, when the XX session of the Nagorno Karabakh Oblast Soviet of the people's deputies submitted a petition on transfer of Nagorno Karabakh from Azerbaijan to Armenia to the Supreme Councils of Azerbaijani SSR and Armenian SSR. Outstanding figures of Soviet intelligentsia and incipient democratic movement, such as Nobel Prize laureate, Academician Sakharov, Galina Starovoytova, Anatoly Sobchak and others, supported the Karabakhis' demands. Acadrmician Sakharov called the problem of Karabakh a matter of ambitions for Azerbaijan and a matter of live and death - for the people of Karabakh.
On February 11, 1989, a special administration form, Special Administration Committee, was established in the NKAO (for the first time in the Soviet Union), which was directly accountable to the supreme state organs of the USSR. Thus, Nagorno Karabakh was de-facto put out of Azerbaijan's administrative control. The creation of the Special Administration Committee had a positive effect on the situation in Nagorno Karabakh. The Committee was planning to carry out serious economic projects in NKAO.
But as a result of the Azerbaijan pressure on the central authorities the Committee of Special Administration was dismissed and according to the resolution of the USSR Supreme Council the Organizational Committee (Orgcommittee) of NKAO of the Azerbaijan SSR replaced it on November 28, 1989. Realizing the destructiveness of that decision for the Armenian majority of Nagorno Karabakh, the NKAO National Council and Supreme Council of the Armenian SSR held a joint session and adopted a resolution on reunification of the Armenian SSR and Nagorno Karabakh. The anxiety concerning the creation of the Orgcommittee proved to be true. The official Baku, using power of the new body, aggravated the situation, which to a great extent contributed to the escalation of tensions. Orgcommittee was to be created on the basis of parity. Simultaneously the authorities of the Soviet people deputies of NKAO should be restored.
According to that resolution the Presidium Supreme Soviet and the Council of Ministers of Azerbaijan had to:
However, NKAO representatives were not included in the Orgcommitte and the activity of the NKAO Soviet of people deputies was not restored. Only senior officials of the Communist Party of Azerbaijan were included in the Orgcommitte. Provisions concerning the status of real autonomy were not implemented as well. On the contrary the Orgcommittee with the assistance of USSR Ministry of Interior and the Soviet Army planned and carried out deportation operations against the Armenian population of Nagorno Karabakh and adjoining areas.
Simultaneously the authorities of Azerbaijan were populating Nagorno Karabakh with Azerbaijanis in order to change the demographic situation in their favour. Against the irrefutable facts of the gross violation of the provisions of the November 28, 1989 Resolution of the USSR Supreme Soviet well as under the pressure of deputies of the Soviet Parliament, representing democratic forces, on January 10, 1990 the Presidium of the USSR Supreme Soviet passed the resolution N 1049-I. The resolution annulled some resolutions of the Orgcommittee, as violating the provisions of the November 28, 1989 resolution.
According to the decision of the USSR Supreme Soviet dated March 17, 1991, a referendum on preserving the union state was held all over the Soviet Union. Taking into consideration repression and persecution against the Armenian population during 70 years of the existence of NKAO, the Nagorno Karabakh National Council decided to boycott that referendum. The people of Azerbaijan, on the contrary, voted for the preservation of the USSR.
It is also important to underline that one of the objectives of the State Committee on Emergency Situation, created on August 18, 1991, was the suppression of national movements. In particular, the "normalisation" of situation in Armenia and Nagorno Karabakh was among the top-priority objectives. At the time democratic forces supported the liberation movement in Nagorno Karabakh, while the supporters of the preservation of the USSR considered it as extremism, undermining the state foundations. This is why the authorities of Azerbaijan immediately, on August 18, supported the State Committee on Emergency Situation.
After the failure of the coup d'etat USSR republics launched the process of achieving sovereignty. In this connection on August 30, 1991 the Supreme Council of Azerbaijan adopted the declaration on restoration the state independence, according to which independent Republic of Azerbaijan proclaimed itself the successor of the Republic of Azerbaijan of 1918-1920. In the current situation and in accordance with the USSR law of April 3, 1990 "On issues connected to secession procedure of the Union republics from the USSR" the joint session of Nagorno Karabakh regional and Shahoumian district Councils of people's deputies adopted a declaration proclaiming the Nagorno Karabakh Republic. According to the above mentioned law along with the union republic and autonomous entities, national groups which densely populate particular areas also had the right to define independently whether to remain within the USSR or leave the succeeding republic, as well as define their future political status. In the strict compliance with the provisions of the named law Nagorno Karabakh made a decision to holding a referendum on the state sovereignty of the NKR.
In accordance with the provisions specified in the law the date of referendum was fixed. On the ballot papers the following question was put: "Do you agree on the Nagorno Karabakh Republic to be an independent state, independently determining the forms of cooperation with other stated and communities?" In the presence of international observers on December 10, 1991 during the all-republican referendum 99.89% of its participants voted for independence of the Nagorno Karabakh Republic. Thus, the NKR left not only Azerbaijan, but also the USSR. It is worth mentioning that the officially USSR ceased to exist on December 15, 1991.
It should be stressed that the Central Election Committee of the NKR created necessary conditions for conducting the referendum on the entire territory of the republic, including Azerbaijani-populated areas. In particular, by means of dislocated in Nagorno Karabakh units of Soviet Army and USSR ministry of Interior ballot papers were delivered to Azerbaijani-populated areas of the NKR. Before that the NKR Central Election Committee addressed a telegram to the administration of the Shushi region with the request to organize the participation of the Azerbaijani population of the region in the referendum. The Azerbaijanis did not take part in the referendum, however, taking into account the fact that Armenians constituted majority of the population (more that 85%), this did not affect the results of the referendum.
On January 6, 1992, the Declaration on National Independence of the Nagorno Karabakh Republic was adopted. Nagorno Karabakh realized its right to self-determination strictly in accordance with the then in force Soviet legislation.
In its turn on October 18, 1991, the Republic of Azerbaijan confirmed its independence by the adoption of its Constitutional Act on National Independence, which forms inseparable part of 1995 Constitution of Azerbaijan. The Constitutional Act considered the establishment of soviet power in Azerbaijan as "annexation by Soviet Russia" which "overthrew Azerbaijan's legal government. Thus, the Azerbaijani Republic declared the establishment of soviet power in Baku illegal, and rejected the whole soviet political and legal heritage. Baku clearly understood if it were to accept the soviet legal heritage (1920-1991), it would have to accept as legal, the status of the Nagorno Karabakh. In that case the USSR law "On the procedures on the Secession of a Union Republic from the USSR" could be applied.
The Azerbaijani Republic, adopting the declaration on restoration of its national independence, proclaimed itself the successor of the Azerbaijani Republic of 1918-1920. In 1918-1920 Nagorno Karabakh did not make part of the Azerbaijani Republic, which was confirmed by the League of Nations. Moreover, the official Baku declared also the illegality of the establishment of the Soviet rule, under which Nagorno Karabakh was transferred to Azerbaijan as well as rejected the Soviet legal and political heritage. Thus, Azerbaijan, in fact, recognized illegal the 70-year forced retention of Nagorno Karabakh within its administrative control.
On November 26, 1991 a Supreme Soviet of Azerbaijan adopted the resolution on dissolution of Nagorno Karabakh autonomous oblast, according to which NKAO was liquidated as national-territorial formation, and its districts and settlement were renamed and incorporated into different regions of Azerbaijan. On November 28, 1991 the USSR Committee of Constitutional control issued a decree concerning the acts of Supreme Soviets of Azerbaijan and Armenia. The Committee of constitutional control condemned the act of Azerbaijan legislative body on dissolution of NKAO as violating the status of NKAO fixed in the USSR Constitution and the decision of Supreme Soviet of Armenia "On reunion of Armenian SSR and Nagorno Karabakh" as violating the USSR Constitution. The fact that the Committee of Constitutional Control in its resolution did not refer to the proclamation of the Nagorno Karabakh Republic as unconstitutional act grabs attention.
Although Azerbaijan rejected Soviet legal heritage, this does not mean that the actions of Nagorno Karabakh violated international norms. Before its breakdown on December 15, 1991, the Soviet Union was a participant of the International Covenant on Civil Rights and International Covenant on Economic, Social and Cultural Rights, codifying the principle of self-determination. Besides, in 1993 the UN Human Rights Commission confirmed that the former Soviet republics stayed devoted to the taken commitments.
The recognition of Azerbaijani independence by the international community in 1992 contains a very serious contradiction. The USSR Law "On issues connected to secession procedure of the Union republics from the USSR" (Article 2), envisaged referendum on the secession of a Union republic from the USSR. Azerbaijan declared its independence neglecting the given procedure. Moreover, as was mentioned above, on March 17, 1991, Azerbaijan took part in the All-Union referendum and voted for the preservation of the Soviet Union. Nagorno Karabakh and Armenia, on contrary, did not take part in that referendum and, as a matter of fact, supported secession from the USSR, what was confirmed during the referendum on December 10, 1991. Recognition of Azerbaijani independence within the internal administrative borders of the former USSR is actually the recognition of the USSR's cessation before it really ceased to exist.
Nagorno Karabakh's self-determination does not violate any fundamental international principles, including the principle of territorial integrity. Some international lawyers try to prove that the realization of the right to self-determination applies exclusively to peoples being under the rule of the colonial empire or foreign power, subordination or exploitation. But from the legal perspective this is not quite correct. All fundamental international documents envisage the right of nations to self-determination irrespective of any classification as to colonial or one. According to Article 55 of the UN Charter "respect for principle of equal rights and self-determination of peoples is the basis for peaceful and friendly relations among the nations". In accordance with the UN GA Resolution 2625 (XXV) of 1970, "all self-identified groups with a common identity and the presence of certain territory receive the right to collectively determine their political future through democratic way and to be free from systematic persecution. For the named groups the principle of self-determination can be realized by different means, including autonomy within a federal state, confederation of states, free association, and in certain cases also full independence". (6) Besides, the International Court stated that the principle of self-determination crystallized into customary international law, applied to and obligatory for implementation by all states. (7)
The Independence of Nagorno Karabakh is the result of NK people right for self-determination A whole series of other international documents such as International Covenant on Civil and Political Rights of December 16, 1966; International Covenant on Economic, Social and Cultural Rights of December 16, 1966; Vienna Declaration and Program of Action adopted by the World Conference on Human Rights on June 25, 1993; UN General Assembly Declaration on "Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations" (24/10/1970); UN General Assembly Declaration on "Universal Realization of the Rights of Peoples to Self-Determination" (20/12/1993) prove that the right of nations to self-determination applies not only to colonial peoples, but has a universal significance.
The Azerbaijani Republic still continues to conduct policy that violates fundamental international norms and principles. For instance, Azerbaijan continues anti-Armenian propaganda on the state level, which is not only a gross violation of international norms, but also violation of Azerbaijan Constitution, which prohibits agitation and propaganda of racial and religious discord. (8) Moreover, expansionism is the basis of Azerbaijan's foreign policy, the convincing confirmation of which is territorial claims to Armenia. President Aliyev formulated his policy in following way: "And in the future we must continue to create such works must, which in consistent form and continuously prove that the lands where Armenia is now situated belong to Azerbaijan. We must do this. We must pave the way for the future generations." (9)