In order to justify the territorial claims of Armenia towards Azerbaijan, the officials of the former frequently raise a proposition, according to which Nagorno-Karabakh has never been within the jurisdiction of independent Azerbaijan.
In addition, in view of official Yerevan, the secession of Nagorno-Karabakh from Azerbaijan in the process of disintegration of the USSR in 1991 and the establishment of the “Republic of Nagorno-Karabakh” were legally founded. Thereby the special emphasis is placed on the provisions of the Law of the USSR “On the Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR” of 3 April 1990, according to which in case of realization by the Union Republic of the secession procedure provided for in this Law autonomous entities would acquire a right to decide independently the question of staying in the USSR or in the seceding republic, as well as to raise the question of their own state-legal status.
Moreover, Armenia claims that Azerbaijan has no any reason to pretend to its frontiers of the Soviet period insofar as it refused to regard itself as a successor State to the USSR.
Apart from that mentioned above, the Armenian side frequently speculates on the international legal principle of the right of peoples to self-determination trying to extend its application to the Armenian population of Nagorno-Karabakh in form of unilateral secession.
As was mentioned above, on 20 February 1988, the representatives of the Armenian community at the session of the Soviet of People’s Deputies of the NKAO had adopted a decision to petition to the Supreme Soviets of the Azerbaijan SSR and the Armenian SSR for the transfer of the NKAO from the Azerbaijan SSR to the Armenian SSR.
It should be made clear in this regard that the procedure for changing the borders of Union republics was stipulated in the constitutions of the USSR and the Union republics. Thus, under Article 78 of the USSR Constitution, the territory of a Union republic could not be altered without its consent. The borders between Union republics could be altered by mutual agreement of the republics concerned, subject to approval by the USSR. This provision was also incorporated in the Constitutions of the Azerbaijan SSR and the Armenian SSR.
In response to the decision of the Soviet of People’s Deputies of the NKAO of 20 February 1988, on 15 June 1988 the Supreme Soviet of the Armenian SSR adopted a resolution agreeing to the incorporation of the NKAO in the Armenian SSR and requesting the Supreme Soviet of the USSR to consider and approve the transfer of the oblast from the Azerbaijan SSR to the Armenian SSR. In resolutions adopted on 13 and 17 June 1988, the Supreme Soviet of the Azerbaijan SSR and its Presidium, in turn, declared the transfer of the NKAO from the Azerbaijan SSR to the Armenia SSR to be unacceptable and impossible, based on Article 78 of the Constitution of the USSR and Article 70 of the Constitution of the Azerbaijan SSR.
It would seem, based on the provisions of the Constitution of the USSR and the Basic Laws of the Azerbaijan SSR and the Armenian SSR then in force, that the issue could have been considered closed, particularly since there were no serious grounds even for discussing the possibility of changing the borders between the Union republics.
However, on 12 July 1988, the Soviet of People’s Deputies of the NKAO adopted an illegal decision on the secession of the oblast from the Azerbaijan SSR. In response, on 13 July 1988 the Presidium of the Supreme Soviet of the Azerbaijan SSR, guided by the Constitutions of the USSR and the Azerbaijan SSR, as well as the Law of the Azerbaijan SSR “On the Nagorno-Karabakh Autonomous Oblast”, adopted a resolution declaring the decision of the Soviet of People’s Deputies of the NKAO of 12 July 1988 on the unilateral secession of the NKAO from the Azerbaijan SSR to be illegal and without effect.
The so-called “Congress of plenipotentiary representatives of the population of the Nagorno-Karabakh Autonomous Oblast”, held on 16 August 1989, declared unambiguously that it refused to recognize the status of Nagorno-Karabakh as an autonomy within the Azerbaijan SSR. At the same time, the “Congress” proclaimed the region an “independent union territory”, in which the Constitution of the Azerbaijan SSR and other laws of the republic no longer applied. The “Congress” established a “national soviet”, which was declared the sole people’s authority in the NKAO.
As was to be expected, the reaction of the Azerbaijani side was not slow in coming. Thus, on 26 August 1989, the Presidium of the Supreme Soviet of the Azerbaijan SSR adopted a resolution declaring the decision of the so-called “Congress of plenipotentiary representatives of the population of the Nagorno-Karabakh Autonomous Oblast” to be illegal.
Of course, the Armenia SSR also participated actively in the attempts to formalize through legislation the seizure of the NKAO from the Azerbaijan SSR. In addition to the aforementioned resolution of the Supreme Soviet of the Armenian SSR of 15 June 1988, the highest legislative body of this Union republic adopted many other anti-constitutional decisions, the best known of which is the resolution on the reunification of the Armenian SSR and Nagorno-Karabakh, adopted on 1 December 1989.
Against the background of these and many other decisions of the Armenian parliament on Nagorno-Karabakh, which openly attempted to legalize the unilateral seizure of part of the territory of one Union republic for the benefit of another and incite the creation of an unconstitutional entity in the territory of another State, the statements now being made by Yerevan about the non-involvement of Armenia in the hostilities in the territory of Azerbaijan may cause surprise, to say the least.
Obviously, before Azerbaijan and Armenia gained independence and the conflict was taken up by international organizations, the USSR central authorities played the role of arbitrator. In connection with the adoption in the late 1980-s of the illegal decisions aimed at the secession of the NKAO from the Azerbaijan SSR and annexation of the oblast to the Armenian SSR, the Supreme Soviet of the USSR and its Presidium considered on several occasions the situation with respect to the crisis in Nagorno-Karabakh. All decisions of the superior State body of the former USSR, in particular the resolutions of 10 January and 3 March 1990, unequivocally recognize the inadmissibility of changing borders and the constitutionally established national-territorial division of the Azerbaijan SSR and the Armenian SSR.
Thus, the whole process of separation of Nagorno-Karabakh from the Azerbaijan SSR in favor of the Armenian SSR, formally started on 20 February 1988, was accompanied by the apparent violation of the USSR Constitution, and, therefore, caused no legal consequences whatsoever.
The correctness of this appraisal is circumstantially evidenced by the next attempt of the Armenian side to legalize the secession of Nagorno-Karabakh, which was made on 2 September 1991 by proclamation that day the “Republic of Nagorno-Karabakh”. In the Armenian side’s opinion, the basis for the legality of this step was the Law of the USSR “On the Procedures for Resolving Questions Related to the Secession of Union republics from the USSR” of 3 April 1990.
The Armenian side is confident that the establishment of the “Republic of Nagorno-Karabakh” was irreproachable from the point of view of standards of international law, since, in its view, on the date the Republic of Azerbaijan obtained its recognition, the “Republic of Nagorno-Karabakh” no longer formed part of it. However, as a simple analysis of these arguments shows, there are serious doubts as to their “irreproachability” precisely from a legal point of view.
It is necessary first to note that the purpose of the Law of 3 April 1990 was to regulate mutual relations within the framework of the USSR by establishing a specific procedure to be followed by Union republics in the event of their secession from the USSR. A decision by a Union republic to secede had to be based on the will of the people of the republic freely expressed through a referendum, subject to authorization by the Supreme Soviet of the Union republic.
At the same time, according to this Law, in a Union republic containing autonomous entities, the referendum had to be held separately in each of them, peoples of which retained the right to decide independently the question of staying in the USSR or in the seceding Union republic, as well as to raise the question of their own state-legal status. It is not difficult to see how an attempt by a Union republic to secede from the USSR would have ended, assuming it had complied with the procedure stipulated in the Law of 3 April 1990. It is therefore curiously to hear this Act being invoked by uncompromising advocates of the unrestricted right of peoples to self-determination, since that is precisely what the Law limited.
It is important to emphasize that the secession of a Union Republic from the USSR could be regarded valid only after the fulfillment of complicated and multi-staged procedure and, finally, the adoption of the relevant decision by the Congress of the USSR People’s Deputies.
However, until the Soviet Union ceased to exist as international person the mentioned Law was without legal effect, since no Union republic, including Azerbaijan and Armenia, had used the procedure for secession stipulated in it.
Until the Republic of Azerbaijan attained full independence and was recognized by the international community, the territory, on which the NKAO of the Azerbaijan SSR existed before 26 November 1991, had remained part of Azerbaijan.
After the collapse of the USSR, the international legal doctrine of uti possidetis juris underlay the international, regional and national legitimation of boundaries of the newly independent States.
According to the above-mentioned doctrine, from the time of attainment by the Republic of Azerbaijan of its independence, the former administrative borders of the Azerbaijan SSR, which included also the NKAO, are recognized as international and protected by international law. This understanding is also confirmed in the aforementioned four UN Security Council resolutions on the conflict in and around the Nagorno-Karabakh region of the Republic of Azerbaijan.
As far as the right of peoples to self-determination is concerned, it is well known that, in reality, the practical realization of this right, as stipulated in the relevant international documents, does not involve unilateral secession, but represents a legitimate process carried out in accordance with international and domestic law within precisely identified limits. Obviously, the critical factor in addressing the issue of self-determination with regard to the conflict in question is that all actions aimed at tearing away a part of the territory of Azerbaijan were unconstitutional and accompanied by violation of basic rules of international law, particularly those prohibiting the use of force and the acquisition of territory.
Azerbaijan’s approach to the right of self-determination derives from its true value and envisages securing the peaceful coexistence and cooperation of the Azerbaijani and Armenian communities of the Nagorno-Karabakh region and creating the necessary conditions for the effective realization of their right to participate in the conduct of public affairs, including through the formation of legitimate regional authorities at all levels.