Winter 1993 (AI 1.1)
The Legal Aspects of the Karabakh Conflict
by Jeyhun Mollazade, Ph.D.
President, US-Azerbaijan Council
The conflict in Nagorno-Karabakh between Armenia and Azerbaijan was the first major ethno-political conflict the former Soviet Union. This article reviews legal aspects of this confrontation.
1. The Karabakh Conflict in relation to the Laws and Constitution of the former USSR.
On February 20 1988 a Session of the Supreme Soviet of the Nagorno-Karabakh Autonomous Region (NKAR) in regional center of Stepanakert appealed to the Supreme Soviet of Armenia, Azerbaijan, and the USSR government 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 Nagorno-Karabakh and in Armenia with hostilities against Azeris. Strikes and mass demonstrations were organized in order to exert pressure on the Soviet 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 NKAR on secession from Azerbaijan and incorporation into Armenia and adopted a decision confirming that Nagorno-Karabakh remain an Autonomous Region within Azerbaijan.
Again, the response to this decision was strikes and mass protests in Nagorno-Karabakh.
All attempts of Azeri authorities to discuss possible solutions to the existing problems in the region with Armenians of Nagorno-Karabakh were rejected. Representatives of the Azerbaijani government visiting Stepanakert were attacked and beaten.
On December 1, 1989, the Supreme Soviet of Armenia adopted a resolution on the unification of Nagorno-Karabakh with Armenia. Such a resolution violates Azerbaijan's territorial integrity and makes the territorial claims official. The Autonomous Regions in the former USSR did not have constitutions as did Autonomous Republics and neither had the right of secession as did the Union Republics. The principle 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.
For example, large compact ethnic Azeri communities in Armenia and Georgia, and Armenian communities in Georgia were not granted any autonomous status but the smaller Armenian community in Karabakh was given the status of Autonomous Region under Azerbaijani jurisdiction and the even smaller Ossetian community was granted
Autonomy Region status in Georgia.
Armenians were the only people in the former USSR who had both a Union Republic and Autonomous Region status in the territory of another Union Republic (Azerbaijan); Ossetians had Autonomous Republic status in the Russian Federation and Autonomous Region status in Georgia.
Nakhichevan was separated from Azerbaijan by the former Azerbajani territory Zangezur populated by Azeris, but given to Armenia in 1921. Autonomous Republic status was granted to Nakhichevan under Azerbaijan jurisdiction. At the same time several indigenous groups in the former USSR had neither a Union Republic an
Autonomous Republic, nor an Autonomous Region. The centralized Communist system, with its power concentrated in Moscow violated the rights of all political and administrative entities in the former USSR as the Union Republic as well as Autonomous Republic or Autonomous Region.
2. The Karabakh Conflict in relation to the Terms of Treaty of the Commonwealth of Independent States.
After the anti-Gorbachev coup d^ñetat failure in 1991 and the collapse of the USSR, 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
However, the Armenian population in Nagorno-Karabakh held a referendum, declared the establishment of the Nagorno-Karabakh Republic as an independent state and appealed to the Commonwealth for membership. This separatist action contradicts the principles of the Treaty, signed by eleven sovereign Republics, the Helsinki
Final Act and International Law, and was not recognized by the Commonwealth or by any states of the world.
3. The Karabakh Conflict in relation to International Law, CSCE, and UN Principles.
At the present time, Armenia has changed its policy towards the Nagorno-Karabakh problem. Armenian president Ter-Petrossian and other officials have stated that Armenia has no territorial claims to Azerbaijan and Nagorno-Karabakh was the internal matter of Azerbaijan and the problem of self determination of the Armenian
Consequently, arriving at a solution of the minorities' problem based upon the framework of the present borders and on the basis of Article 27 of the Covenant on Civil and Political Rights is much more constructive than secession which has always contributed to destabilization in the Transcaucasia. "The express acceptance in (relevant U.N. resolutions) of the principles of the national unity and the territorial integrity of the States Implies non-recognition of the right of 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." (G. Espiel, The Right to Self-Determination, supra note 151, paragraph 90).
Antonio Cassese, a prominent expert on international law and the problems of self-determination, describes this issue in his article, Self Determination of Peoples: "The right of self-determination, I have said, belongs also to 'national' peoples in a multinational state like the federated republics of the USSR. The 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 part to the Covenant, is bound to honor."
Armenians living in Azerbaijan and Georgia, Azeris who lived in Armenia and are now living in Georgia, and Georgians living in Azerbaijan are considered to be ethnic minorities who have the rights formulated in Article 27 of the Covenant on Civil and
Political rights, but not in Article 1 of the same Covenant. The free interpretation of Article I of the Covenant on Civil and Political rights due to the self-determination of peoples with regard to the Armenian Population of Nagorno-Karabakh, as it is being interpreted and practiced by the Armenian side, is nothing more than the speculation on UN documents in order to justify military Occupation of Azerbaijani territory, inhabited by Armenians. Commenting on this UN practice, Professor Van Dyke
(Human Rights, The United States, and the World Community 102, 1971) wrote that the UN "would be in an extremely difficult position if it were to interpret the right of self-determination in such a way as to invite or justify attacks on the territorial
integrity of its own members. Armenia and Azerbaijan became members of the CSCE and the United Nations, Subject to International law, and thus are obliged to follow its principles.
Armenia is violating the territorial integrity of Azerbaijan as well as the principles of the United Nations by sending armed forces into Nagorno- Karabakh. Such use of force is prohibited, according to UN Article 2 (4), unless Armenia's use of force is
authorized by the UN Security Council. Armenia's invasion of this part of Azerbaijan territory is, therefore, a violation of the prohibition of the use of inter-state force in the United Nations' Charter, Article 2 (4) and inconsistent with Article 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 of force against the territorial integrity of political independence of any State or from acting 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 law" (Charter of
Paris for a New Europe, Paris, 1990). Armenia denies the presence of its troops in an attempt to convince the international community that Armenia does not violate the territorial integrity of Azerbaijan and International Law. There is proof to show the
involvement of Armenian citizens in military and terrorist actions in Azerbaijan territory. These facts are based on investigation, photos, and video materials.
The presence of Armenian military troops in Azerbaijan is said to be for "self-defense" purposes. If that be the case, then why have Armenian 'self-defenders" attacked Azeri villages, burned houses, killed civilians and evicted the Azeri population from Nagorno-Karabakh. Their reference to self-defense is an attempt to
justify the undeclared war against Azerbaijan during these 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 have visited the area and gathered more detail and objective information about the conflict over Nagorno-Karabakh. On February 26-28, 1992, the first CSCE fact-finding mission
presented its report. On the conflict between Azerbaijan and Armenia over Nagorno-Karabakh to the Committee Of Senior Officials of the CSCE. The members of the Committee made recommendations to Azerbaijan and Armenia based on the principle of inviolability of the borders (one of the basic principles of CSCE) and human and minority rights protection. Azerbaijani authorities stated that
local and cultural autonomy can be given to Armenians in Nagorno-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.
It seems that the Armenian side considers that the secession from Azerbaijan and the establishment of an independent Nagorno-Karabakh republic is the only resolution to the conflict. Such an option is not acceptable to Azerbaijan as it violates its
territorial integrity and sovereignty, and contradicts to CSCE and the 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" (The Right of Self-determination declaration
on t he Granting of Independence to Colonial Countries and Peoples. General Assembly Resolution 1514 (XV) of December 14,1960.
Even the official approach of the Armenian government changed but the Armenian parliamentary resolutions on incorporation of Nagorno-Karabakh still exist. Armenian officials say that they are not valid; however it have not been annulled and officially still exist. The citizens of Armenia are present on the territory of Azerbaijan as military force. Though Armenia's authorities have changed their stance on the problem the facts indicate the extent of political and military interference by the Republic of Armenia in the internal affairs of Azerbaijan.
Armenians of Nagorno-Karabakh at this stage of the conflict have also changed their position. At the present time they do not want to join Armenia, but want to establish an independent state based on the principle of rights of peoples to self-determination. In such case, it is very important to differentiate between the rights of the "people" and the rights of "minorities." Armenians living in Azerbaijan are a national minority which have a mother-nation in Armenia. As such, they have the right to self-determination in regard to effective participation in political social, economic, cultural, religious, and public life in a manner which is neither threatening to the territorial integrity of Azerbaijan nor its sovereignty.
After the collapse of the Russian empire, the Armenian people established their right on the territory of present Armenia and on Zangezur, which had been given to them by the Bolshevik government after the Soviet occupation of the two republics in 1920-21. The Armenian people achieved independence and their right to the territory of the present Armenia again after the collapse of the communist empire in l99l.
The strictly legal arguments against secession have been summarized by Lee C. Buchhelt as follows:
* 1. That the right of self-determination 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 (majorities or minorities) are the objects of that law;
* 3. The so-called argument from mutuality; as states cannot oust one of their provinces,. equally a province cannot secede.
How many times will the Armenian people determine their rights by building independent states? Today, they plan to do it on the territory of Azerbaijan. In the future it might be Georgia, Russia, or some place else. Armenian scholars emphasize that Nagorno-Karabakh is a special case and differs from other Armenian communities outside of Armenia as it had Autonomous Status which is the starting point for self-determination, and consequently, of secession.
But the Autonomous Region of Nagorno-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 Nagorno-Karabakh and Armenians living in compact communities in other countries.
There is no doubt that Armenians living in Azerbaijan or in the territory of other states are a national minority, and as such, have the right to determine the status inside the states they are inhabiting, but they should not take measures for its
dismemberment. United Nation's Resolution 2625 (XXV) adopted October 24, 1970 addresses this issue as follows:
"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 in 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."
Armenians in Azerbaijan as a national minority have the right of internal self-determination which enables their tree participation in the political life of Azerbaijan to pursue their own economic, social, and cultural development, 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 however, does not necessarily mean secession, particularly by the use of force.
The problem of self-determination, and subsequent secession, is a very complicated question, especially in such areas as the Caucasus, where the state borders do not coincide with ethnicity. Today about 300,000 Azeris live in Georgia, 250,000 of them in a compact settlement; 200,000 Azeris inhabited Armenia before their deportation, more than 100,000 of them were living near lake Sevan; 150,000 Azeris are currently living in Daghestan;approximately 500,000 Armenians are living in Georgia 400,000
of them compactly in certain districts, approximately 20,000 Georgians, 40,000 Kurds, 200,000 Lezghins live compactly in Azerbaijan, as do 450,000 Russians, 50,000 Jews and various other minority ethnic groups (numbers reflect situation in 1993).
If secession, as a result of self-determination is the only possible mean for peaceful resolution of the Nagorno-Karabakh conflict as Armenian experts and politicians insist, then the other national minorities in Georgia and Azerbaijan must have the
same right for external self-determination, secession, and establishment of independent states or attachment to the territory of the mother nation.
Such an approach might be acceptable to Armenia, as no national groups continue to live there any more except for a few Jazidis; but such a policy or practice is not acceptable to Georgia and Azerbaijan as they have several national minorities living in
their territory in compact communities.
A secessionist approach in this region will lead to instability, confrontation, and bloodshed. It will not serve the purposes of friendly relations between the Transcaucasian Republics. The present situation in Transcaucasia proves this, particularly Nagorno-Karabakh in Azerbaijan, and Ossetia in Georgia. The demands for the secession of Nagorno-Karabakh from Azerbaijan after the deportation of Azeris from Armenia, by Armenians insisting that their rights have been violated, not only is
illegal on the basis of the Constitution of the former Soviet Union, the principles of the CSCE and the UN; but also is immoral.
International law directly states that "No State or group of States has the right to intervene, directly or indirectly, for any reasons whatever in the internal or external affairs of any other States. Consequently armed intervention and all other forms of
interference of attempted threats against the personality of the State or against its political economic and cultural elements, are in violation in international law." (Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations.
UN Resolution 2625 (xxv), 10/24/70). However, Armenia continues the forcible occupation of the territories of Azerbaijan, it has established a corridor through the territory of Azerbaijan linking Nagorno-Karabakh with Armenia and has occupied about 20% of Azerbaijani territory, even far beyond Nagorno-Karabakh. Such actions by Armenia only serve to escalate the tension and the war between Azerbaijan and Armenia and threaten the stability of the whole region.
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