By Adelaida Baghdasaryan
Whether the NKR population has the right to self determination without violating any international law and territorial integrity of Azerbaijan in particular, and whether the legal status established by the legitimate exercise of the right to self determination makes the NKR qualify to the one of a state in accordance with Public International Law.
The NKR people possess the right to self determination, which doesn’t violate any international norm and territorial integrity of Azerbaijan in particular, as it is not applicable to the case of Karabakh, they (Karabakh people) exercised this right through legitimate means, which grants them a legal basis for the establishment of independence and state, moreover nowadays situation in NKR proves that all requirements imposed by PIL and Montevideo Convention are met, therefore the NKR legally qualifies as a state under PIL
Karabakh was a part of historic Armenia starting the first millennium BC. Azeris, or Tatars appeared hundreds of years later. As of 1813 Gulistan Treaty between Persia and Russia Karabakh was under Russian Empire rule by 1917 Russian Revolution. In 1918 dispute over Karabakh territory between Armenia and Azerbaijan began. Azerbaijan was supported by Turkey in creating a new Turkish state, Azerbaijan , (first experience before Cyprus ) in Caucasus . The newly created entity called Azerbaijan , submitted a petition to the League of Nations to be admitted as a member. The league of Nations denied the petition due to the fact that: “it cannot be regarded as de jure a full governing state, as it was not recognized by any member of the League of Nations, has never formerly constituted a state, instead was always a part of Mongol, Persian, and since 1813 Russian Empire, and besides, it is difficult to ascertain the exact limits of the territory within which the Government of Azerbaijan exercises its authority” . In 1918 Karabakh was self governed territory as declared by the National Council of Karabakh. The population of Karabakh was at that time 95% – Armenian, 5% – other minorities. In 1919 an Agreement was signed between Azerbaijan and Karabakh authorities on future determination of Karabakh status during the upcoming Peace Conference (after WWI). Karabakh possessed all attributes of statehood: army, Government, capacity to enter in international relations, permanent population. In 1920 Azerbaijan breaches the Agreement of 1919 and invades Shushi regional center, where massacred about 20% of Armenian population. Karabakh nullifies the Agreement of 1919.In 1920 Azerbaijan and later Armenia establishes soviet government. 1921 Moscow and Kars Treaties were concluded between Turkey and Soviet Russia, and Turkey and three Soviet Caucasus Republics ( Armenia , Georgia , Azerbaijan ). According to the treaties Karabakh and Nakhichavan were passed to Azerbaijan Soviet Republic . Karabakh declared by Azerbaijan and Armenia Revolutionary Committees an integral part of Armenia . In 1923 a Treaty was signed between the Soviet Republics on the establishment of the USSR . 1923 July 5 a Decision of the Russian Communist Party Caucasus Bureau was adopted on including Karabakh in Azerbaijani Republic, granting it large autonomy. 1924 – 1930 formation of Red Kurdistan ordered by Azeri Government, separation of some Karabakhi parts making it an enclave, aiming the geographical separation from the Republic of Armenia . Starting 1930 numbers of complaints and petitions issued by the Government, authoritative representatives of the Karabakhi population addressed to the Government of Armenia and Central Government to redefine the status of Karabakh and include it in the Soviet Republic of Armenia. The petitions continued by 1980s due to continuous violations of the Armenian population’s economic, social and political rights by the Azeri Government due to which the demographic structure in Karabakh, Baku and other cities of Azerbaijan settled by Armenians was changing to the benefit of Azeri people. There is an evidence of national discrimination against Armenians in Azerbaijan , because the statistics proves: the number of Armenians in Azerbaijan was decreasing continuously, which was the result of non favorable policy applied towards Armenians in Azerbaijan , Karabakh, and Nakhichevan . In 1988 a Decision of NKAO Soviet of Deputies to petition USSR , Azerbaijan and Armenian Governments to hand over Karabakh to Armenia was adopted. Massacres of Armenians in Sumgait and Baku took place in response. In 1990 Organizational Committee of Azerbaijan was established, which displaced Armenians from the 24 villages in an attempt to change the demography in the region artificially, and occupied more than half of Karabakh by Azerbaijani military forces. On March 17, 1991 the USSR leadership conducted a referendum on preserving the union state ( USSR ). Armenia and Nagorno Karabakh did not participate in this referendum. Azerbaijan participated and voted for the preservation of the USSR . But later in November the same authorities who were leading the Soviet Azerbaijan Government adopted the Declaration of Independence of Azerbaijan The USSR was later dissolved on December 15, after the NKR Referendum for Independence . On August 30, 1991 the Supreme Soviet of Azerbaijan adopted the declaration on restoring the state independence. 1991- August-November Declaration of Independence of Azerbaijan and adoption of the Constitutional Act which declared Azerbaijan as the successor of the Republic of Azerbaijan of 1918 and denied all Soviet heritage, legislation, except those which approved the territorial integrity of Azerbaijan . 1991- September 2 Declaration of the NKAO and Shahumyan District to secede from Azerbaijan in compliance with the existing USSR law on secession. 1991 December 10 – Referendum as per requirement of the aforementioned USSR law, where all the population with the right to vote (except for Azeris, who were provided with ballot papers, but denied to participate, but nevertheless this can not be regarded as violation, because the Armenians were 85% of the population of Karabakh at that time) participated in the voting directly and voted on the proposed issue whether they want the NKR be an independent state , adoption of Declaration of Independence based on the results of the referendum overwhelmingly in favor of the secession, and December 28 elections to the Parliament of the newly established NKR. Both the Referendum and the elections were observed by the international observers and covered by media. Establishment of state bodies, army and other state institutions took place with the support of Armenia . On September 20 NKR petitioned the UN to admit NKR as a member of UN. Azerbaijan started large scale military actions against NKR in 1992, waging war in the region, shelling rockets onto Stepanakert and Shushi, occupied Shahumyan district and parts of Karabakh’s Martuni and Mardakert districts. NKR army starts its counteroffensive and occupies some of the Azeri territory to secure its population from rocket attacks. In 1994 a Ceasefire Document was signed by Parliament Speakers of Armenia, Azerbaijan , and NKR. During the war the UN delivered four Resolutions related to the conflict, where the principles of the territorial integrity and prohibition of the use of force for acquiring territory are enshrined.1991-2006 – Existence of NKR as an independent state, with its own Government, Political Parties, President, international relations, permanent population, and army.
In order to determine the current legal status of the Republic of Nagorno Karabakh there must be discussed several issues:
. Whether the Republic of Azerbaijan can claim for territorial integrity in compliance with the Public International Law (PIL), in regard of Karabakh based on the fact that Karabakh belonged to Soviet Azerbaijan in accordance with Kars Treaty and July 23 Russian Communist Party Caucasus Bureau (RCPCB) Decree, and in a situation when nowadays Azerbaijan declared itself the successor of the Republic of Azerbaijan of 1918-1920, as well as the UN recognition of Karabakh as a region of Azerbaijan,
. Whether the Karabakhi population has the right to self determination in accordance with PIL,
. Whether the right to self determination of Karabakhi people was exercised in accordance with PIL and whether it gives Karabakh a legal basis for the establishment of a state,
. Whether the self determination principle or territorial integrity principle (if Azerbaijan can found its position on a legal and reasonable ground) prevails in the factual situation formed in Karabakh conflict.
. Whether the Republic of Azerbaijan can claim for territorial integrity in compliance with the Public International Law (PIL) in regard of Karabakh in a situation when (a) nowadays Azerbaijan declared itself the successor of the Republic of Azerbaijan of 1918-1920, or based on the fact that (b) Karabakh belonged to Soviet Azerbaijan in accordance with Kars Treaty, (c) July 23 Russian Communist Party Caucasus Bureau (RCPCB) Decree, and (d) the UN recognition of Karabakh as a region of Azerbaijan, which is reflected in the UN Resolutions on Karabakh conflict.
The principle of Territorial Integrity stipulates that state territory and borders must be respected . But in order to conclude upon this issue all the questions concerning the situation with Karabakh conflict must be discussed.
a)Whether Azerbaijan has any right to claim territorial integrity over Karabakh taking into account that Azerbaijan has declared itself the successor of the Republic of Azerbaijan of 1918-1920?
The Public International Law defines that succession of a state is the shift of responsibility (in terms of territory, government, treaty obligations, etc) over a territory from one state to another . Now to define the situation with the successor Azerbaijan we need to examine the issue of the territory and its sovereignty over that territory of the Republic of Azerbaijan of 1918-1920. PIL defines that a state is sovereign and its territorial integrity shall be respected (as enshrined in the UN Charter, Article 1, 2 (4)) as long as that is a state with territory defined and controlled by the Government. In the situation with Azerbaijan of 1918-1920, the Armenian side can stated that that state was only a “proclaimed” state having territory defined with governmental control over it, but when Azerbaijan applied to the League of Nations to be admitted as a member, the League denied the membership application based on the fact that Azerbaijan never constituted a state in past (this implies that if it had a state before, it could at least reasonably ground its pretensions on some territories), and had no borders with control over it defined. Azerbaijan of 1918 never possessed Karabakh on legal grounds. In 1918 Karabakh was a self governed entity; moreover an Agreement was signed in 1919 between Azerbaijan and Karabakh, proving the fact that at that time Azerbaijan was not even close to claiming sovereignty over Karabakh, which had its own army to defend its territory, and its own authoritative government National Council. So, Azerbaijan of 1918 was not recognized by the League of Nations or any other state of the international community, simply because it was clear that Azerbaijan was an artificially created entity, created by Turkey , which was following its Pan Turkish ideology. Here, Azeri side may argue that notwithstanding the fact of non recognition Azerbaijan of 1918 was a state, supporting itself by Montevideo Convention signed in 1933, which states that if a state possesses all attributes of statehood, it doesn’t need to be recognized necessarily; this convention is the adoption of the theory of Declarative Recognition, which defines that recognition of a state is only the confirmation of the state’s legal relationship and was well spread after WWI . But as a counterargument there can be brought again the fact that the League of Nations didn’t even recognize its territory as defined, qualifying it as disputed, and besides, the Montevideo Convention was signed in 1933, and it is not applicable to Azerbaijan of 1918. Also the declarative theory was not accepted in the world in the times of WWI due to political unstable situation in the world, the accept ion of this theory would undermine a number of countries’ political structure. Therefore, Azerbaijan cannot claim sovereignty over Karabakh as a successor of a state which didn’t have sovereign power over Karabakh territory during its time of existence, moreover of a state which hadn’t defined borders, wasn’t recognized by any member of the international community, and couldn’t qualify as a state.
As an argument on succession issue Azerbaijan may claim that in accordance with public international rule on succession, the succession itself doesn’t terminate the obligations taken by the International Treaties, and Kars Treaty in particular if the succor admits to do so. Azerbaijan will be likely to insist on the provisions of this treaty.
So, (b) the next issues to discuss is 1) Whether Azerbaijan can claim sovereignty and territorial integrity over Karabakh based on the fact that Karabakh was passed to Azerbaijan by the Treaty signed between Turkey and Azerbaijan, Armenian, and Georgian Soviet Republics in 1921 with Russian Soviet Republic participation, and 2) Whether this treaty must be observed according to one of the major public international principles ” pacta sunt servanda ” . The Kars Treaty Article 4 and Annex 1 determine the borders between Turkey and the three Soviet Republics , so that Karabakh is inside Azerbaijan Republic ‘s territory. Armenian side may argue that this was an illegitimate treaty as was signed by coercion and thus doesn’t have any legal basis. Armenian side can state that the treaty was prepared and signed in accordance with Moscow Treaty signed between Russia and Turkey before Kars Treaty, and that this treaty repeats all the provisions elaborated in Moscow Treaty, therefore it may be argued whether two other states (Turkey and Soviet Russia) have legitimacy and/or jurisdiction to determine the borders and territories of other states. Armenia also can support its position based on the fact that this kind of illegal treaties are subject to termination of their legal capacity nowadays, as it is internationally accepted that all states are equal in accordance with UN Charter Article 2, para. 1, and not any state is permitted to decide issues of territory concerning other states. But Azerbaijan may counter argue that if that was an illegal treaty why then Armenia signed it instead of complaining about the illegitimacy of the treaty at a more appropriate time. Armenian side can state in response that in the political situation of that time of 1920s (economical military exhaustion caused by war, unstable situation in the region) it couldn’t do anything else, but only declare Karabakh as an integral part of Armenian Soviet Republic, which it did shortly after signing the treaty. So, the legitimacy of such a treaty as Kars Treaty is undermined as it violates the accepted principle of the equality of all states.
The question whether the Kars Treaty as an international treaty must be observed no matter of any succession issue in accordance with the internationally recognized principle of ” pacta sunt servanda ” must be discussed as follows. The principle of ” pacta sunt servanda ” is internationally recognized one and it stipulates that: Every Treaty in force is binding upon the parties to it and must be performed by them in good faith” (in the words of the Vienna Convenion on the Law on Treaties, 1969, art. 26., 1986, art. 26)”. Of course, the Azerbaijani side will support its position based on the abovementioned principle, but the Armenian side has a basis to terminate the power of the treaty basing its counterargument to terminate the treaty according to the doctrine “Rebus sic stantibus” accepted in the international public law. According to this doctrine a fundamental change in circumstances must be the ground for termination of an international treaty, and four criteria need to be met to qualify for termination under this doctrine: 1) the change in circumstances must be of a fundamental character, 2) the change in circumstances must have been unforeseen by the parties, 3) the circumstances at the time of entering into agreement must have been of essential character, and 4) the change in circumstances must radically alter the performance of obligations under the treaty. In this case the change in circumstances is the liberation of the Soviet Republics from the Soviet communist rule, and establishment of the new independent “democratic” states. In accordance to the first criteria this is fundamental change in circumstances, as it changed the whole political situation not only on the region but in the world as well. Second, this change could not be foreseeable by the parties to the Treaty, as it was signed long before the destruction of the soviet rule, third, this circumstance of the Caucasus Republics being Soviet communist republics made this treaty happen, as if not for Azerbaijan being a communist, Russia would never agree to pass any territory to it. And fourth, the change in the political rule in the region essentially altered the performance of the treaty provisions, because as soon as Azerbaijan tried to “enforce” the treaty provisions through military actions after fundamental changes in circumstances, a war in the region between Azerbaijan and Karabakh began started. Azerbaijan can only argue here that this principle of international law is rarely applied and cannot be accepted in this case as a customary rule. Armenia can argue that if Azerbaijan can unilaterally denounce the treaty between the Soviet Republics signed in 1923 on the establishment of the USSR , as it did by adopting the Constitutional Act in 1991, why the Armenian side cannot urge and denounce the treaty of Kars ? Therefore, based on the arguments from both sides it should be concluded that nowadays claim of Azerbaijan for sovereignty over Karabakh can not be considered as legally valid and based on an international treaty.
In order to support its position based on the principle of territorial integrity Azerbaijan can bring to discussion the fact that in July 1923 Karabakh was included in the Soviet Republic of Azerbaijan by a decree issued by the Russian Communist Party Caucasus Bureau, so the question is: (c) Whether the Decree of the Russian Communist Party give a legal ground for Azerbaijani nowadays claim to sovereignty over Karabakh? The 1923 CaucasBureau Decree Provision (a) states: “Coming out of considerations of national peace between the Muslims and Armenians, as well as economic nexus between Upper and Lower Karabakhs and their permanent connection with Azerbaijan , leave Nagorno Karabakh within the boundaries of the Republic of Azerbaijan , giving it a status of large autonomy” . Azeri side can support its position based on this decree as well as the fact that Karabakh remained under Azeri Government for about 70 years. Armenian side can question the legitimacy of this decree by saying that a third country’s political party’s decree on the determination of the status of other territory can not be deemed as legitimate. Azeri side will argue that if it was not legitimate why Armenia left it in Azerbaijan for 70 years? Here Armenian side may prove that starting 1930s Karabakhi authorities and population, as well as Armenian Government issued numbers of petitions to redefine the status of Karabakh and unify it with Armenia addressed to the Central Committee of the USSR, but was denied. Besides, Armenia may question the applicability of this decree, as the Republic of Azerbaijan denied all soviet heritage together with its legislation by the Constitutional Act of 1991 November by denouncing the Treaty on Establishment of the USSR as of 1923. Azeri can counter argue that they denied all Soviet heritage, except for the laws and documents which are in favor of Azrtbaijani territorial integrity.
Nevertheless, the Armenian side can successfully argue the applicability of that decree now, based on the fact that the policy it was trying to achieve, as mentioned in the text of the decree, was not and cannot be achieved in reality: there wasn’t and is no peace between the Muslims and Armenians, there wasn’t and is no permanent connection with Azerbaijan, there wasn’t and is no economic ties between Lower and Upper Karabakh due to the disastrous policy of separating the territories form each other of the Azeri Government and blockade imposed by Azerbaijan now. So, as long as the policy of the law is not achieved even after 70 years of its implementation, the law is incorrect and shall not be taken into consideration as a legal basis for Azeri claim of territorial integrity.(d) Whether the Republic of Azerbaijan can claim for territorial integrity based on the fact that UN recognizes Karabakh as a region of Azerbaijan , which is reflected in the UN Resolutions on Karabakh conflict? The rule on territorial integrity as mentioned above stipulates that the territory of the state is respected. Azeri side can claim that the UN, the most authoritative international body in the world recognized Karabakh as a part of Azerbaijan , and therefore it must be accepted so. Besides, Azeri side can state that the resolutions of the Security Council are binding for the members (as reflected in the UN Charter, Article 25). The UN Resolution 884 (adopted in 1993) states: “Expressing its serious concern that a continuation of the conflict in and around of Nagorny Karabakh region of the Azerbaijani Republic , and of the tensions between the Republic of Armenia and the Azerbaijani Republic, would endanger peace and security in the region .” Azeri side can claim that the recognition of the Karabakh region as a part of Azerbaijan by the UN has a binding impact. But the Armenian side can counter argue that these all four Resolutions of the UN were adopted in a very contentious period of time after collapse of the USSR, when many conflicts started on the territory of the USSR and the UN was trying to preserve peace and security and the policy was to preserve peace in the region. It is seen from the texts of the resolutions itself: “the tensions between the Republic of Armenia and the Azerbaijani Republic would endanger peace and security in the region”. The UN was trying to achieve peace and security mistakenly thinking that it will be achieved by preserving the status under which Karabakh stayed for 70 years. Thus, as the time showed the policy was not achieved, the conflict was prolonged for other several years, and by now there is no termination of the conflict. Therefore the Resolutions and the recognition of the Karabakhi status can not be deemed binding, as the policy it was aimed to serve was not achieved. The Armenian side can also raise the question of the legitimate establishment of the Republic of Azerbaijan asking: whether the establishment of the Azerbaijani Republic occurred on the legitimate grounds taking into account the fact that Azerbaijan declared itself as a state violating the existing law of the USSR on secession . The Article 2 of the USSR Law on Secession states : ” The decision on secession of a Soviet Republic from the USSR is made by the will of the people of that Soviet Republic by means of a referendum. The decision to conduct a referendum is to be ratified by the Supreme Soviet of a Soviet Republic based either on its own will or on the request made by the 10% of permanent residents who have a right to vote according to the USSR laws”. Armenian side may question the legitimacy of the establishment of the Azerbaijani Republic as it was conducted in violation of this law, as there was no referendum conducted to clarify the will of the population to independence. Azeri side can argue this saying that Azerbaijan has declared its denial of all Soviet laws. But in this case Armenians may ask: Why then the population of Azerbaijan participated in the Referendum conducted to support the existence of the USSR on March 17 and voted overwhelmingly in favor of the preservation of the USSR and why the same authorities who were leading the Soviet Azerbaijan Government adopted the Declaration of Independence of Azerbaijan. This fact undermines the legitimacy of the establishment of a “state”, although its territorial integrity is supported by the UN Resolutions in regard of the Karabakh conflict. So, in regard of this issue it can be stated that there is no legal basis to insist on the establishment of an independent state and territorial integrity based on the fact that the state was founded in violation of the existing law and even if the UN Resolutions confirm the territorial integrity, because the resolutions’ policy is not achieved.
So as a conclusion of the issue “Whether the Republic of Azerbaijan can claim for territorial integrity in compliance with the Public International Law (PIL) in regard of Karabakh in a situation when (a) nowadays Azerbaijan declared itself the successor of the Republic of Azerbaijan of 1918-1920, or based on the fact that (b) Karabakh belonged to Soviet Azerbaijan in accordance with Kars Treaty, (c) July 23 Russian Communist Party Caucasus Bureau (RCPCB) Decree, and (d) the UN recognition of Karabakh as a region of Azerbaijan, which is reflected in the UN Resolutions on Karabakh conflict” must be presented as follows: The Republic of Azerbaijan can not legally base its position on the principle of the territorial integrity as it is not applicable to the case with Karabakh due to the arguments mentioned above.
The next major issue to discuss is:
2) Whether the Karabakhi population has the right to self determination in accordance with PIL. The right to self determination is enshrined in the UN Charter, starting with the purposes of the UN it is stated according to the Article 1, para 2: To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples , and to take other appropriate measures to strengthen universal peace. Next, 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”. Therefore, Karabakh population, which qualifies as people, under the plain meaning of this word, has the right to self determination. Here Azeri side will start to argue that the application of this international norm violates its territorial integrity, but Armenian side can state that based on the mentioned above discussion of the principle of territorial integrity, Azeri claims are not legally based. Azeri side also can argue that the Charter provisions had intent to be addressed only to peoples of the former colonies, but Armenian side can counter argue that it’s applicable to all peoples, because in the text of the above mentioned articles it is not distinguished which peoples. But Azeri side can continue arguing that Karabakh had an autonomous regime under which it could exercise its right to self determination, but the Armenian side can state that even under this autonomous regime the people of Karabakh could not exercise their social, economic and other rights due to the discriminatory policy of the Soviet Azerbaijan, and support its position on many facts of the Azerbaijani abuse of power. Besides, the fact that the USSR Law on secession , which was in force while implemented by the Karabakhi people, also provides for self determination for the people under autonomous regime, and also supports the Armenian position, because the people living in autonomous regions also were granted the right to self determination. The Article 3 of the mentioned USSR Law states “The people residing in the autonomies are given a right to independently decide whether to remain in the Soviet Union or in the seceding Republic as well as to decide on their state legal status”. And Azeri’s argument that it doesn’t recognize any Soviet laws, doesn’t deem this laws invalid, as many other former soviet republics seceded in conformity with this law ( Armenia and Russia amongst them) and were successfully recognized by the international community. As a conclusion to this issue we may state that Karabakhi population have the right to self determination as the principle of it as enshrined in the UN charter and the international practice is applicable to this case (bearing in mind that the people of Karabakh were oppressed by the Azeri Government even under autonomous regime), and is in full compliance with the USSR Law on Secession, which was valid at that time.
The next issue to discuss is:
3) Whether the right to self determination of Karabakhi people was exercised in accordance with PIL and whether it gives Karabakh a legal basis for the establishment of a state. In international public it is largely accepted to exercise the right to self determination through and based on a referendum to reveal the will of its population. In a UNESCO International Conference of Experts on Future of Self Determination Report it is stated “The exercise of self determination requires, by its very nature, the expression of the will of the people. . The holding of a referendum in order to establish the will of the people with respect to a change of status and other matters is a widely accepted act of self determination”. Thus, it is internationally accepted that the referendum is a means for clarifying the will of the population. This citation may be denied by the Azeri side, as this report is not a binding source of law. But Armenian side can state that in this situation it is very persuasive. As well as the recent developments showed several countries becoming independent based on the results of a referendum (Montenegro). Besides, the international public law defines that ” A referendum is a direct vote of the whole electorate either to accept or reject a particular proposal. This may be the adoption of a new Constitution, an amendment, a law..” The referendum conducted by NKR totally qualifies as the one in conformity with the international law, as all the population with the right to vote (except for Azeris, who were in minority) participated in the voting directly and voted on the proposed issue whether they want the NKR be an independent state.
The next issue to discuss is whether the Referendum conducted in NKR in 1991 December 10 can be found legitimate to grant a legal basis for later establishment of a state taking into account the fact that it was conducted with the then existing Soviet law. The USSR Law on secession imposes: “The referendum is to be conducted according to the referendum law of the USSR , referendum law of a given Soviet or autonomous Republic if they do not contradict this law”. NK authorities followed and acted in conformity with that law and all their actions can be found legally grounded. But still Azerbaijan can claim that before the NK referendum they had already declared their independence and annulled Karabakh’s autonomous status. But still it is arguable whether it gives them right to claim for sovereignty over Karabakh as a non autonomous region, because at the time when NK was deciding its future status the USSR did exist and its laws, which were higher in hierarchy, were in force, and besides, the unilateral denial of the Soviet laws and actions do not deem them to be legally binding for other separate entities. Besides, NKR referendum was conducted properly, it was covered by media and international observers were present in the election polls. Such kind of referendums were conducted by Armenia, Russia and other former Soviet republics in conformity with the USSR Law on Secession giving to that law a status of a binding source of international law due to the practice of different states.
In order to eliminate all further doubts on the issues of self determination vs territorial integrity another question is to be answered. The issue is:
4) Whether the self determination principle or territorial integrity principle (if Azerbaijan can found its position on a legal and reasonable ground) prevails in the factual situation formed in Karabakh conflict. Even if we admit that Azerbaijan can legally claim territorial integrity, we have only self determination principle to put in front of it. But according to international customary law enshrined in UN Resolutions, such as UN Resolution on Quebec issue, the principle of self determination prevails if the abuse of power towards the people which chooses to have the right to self determination is available . The policy of the principle of self determination of peoples can be perceived through the Article 1 of the International Covenant on Economic, Social and Cultural Rights, which states: “All peoples have the right to self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. This means that if the part of the population of a country is deprived of the right to normal development in economical, cultural and social spheres of their life, they reasonably may claim for self determination. In our case there is more than needed evidence enshrined in different works and documents, as well as statistical data proving that people in Karabakh were deprived of their rights, were oppressed and were forced to leave their homelands. There is an objective statistical data proving this and the example of Nakhichevan region successfully emptied from Armenians as a result of Azeri national policy was in front of their eyes. Massacres if the Armenian population, unreasonable and hostile displacements, hindrance to economic growth And the fact that from the very beginning of the existence for the NKAO the people, governmental bodies were applying to higher bodies to alleviate their situation is a valid evidence of the hard conditions artificially created by the Azerbaijani Government. But Azeri side may counter argue that Karabakh had a large autonomy to decide upon their domestic issues. But Armenian side may question such a right under communist rule, when there was no right to freedom of speech, political or other views. Then Azeri side can claim that the problem was not the fact that the Autonomous Region was in the Azeri Republic , but the fact that all were within the communist rule. It will be difficult to deny this, but nevertheless there is an evidence of national discrimination against Armenians in Azerbaijan, as according to State Statistical Data the number of Armenians in Azerbaijan and Karabakh was decreasing as a result of unfavorable conditions created by Soviet Azerbaijani government, Not to forget mentioning use of force against the civilians, displacing civilians from their 24 villages, and other similar facts. Therefore even if Azerbaijan had legitimate grounds for claiming territorial integrity, the fact of abuse of their power would give more legal grounds and capacity to the right of self determination of NK Population and would definitely prevail.
After the issues of territorial integrity, self determination and abuse of power discussed we can start the discussion on NKR status and determine whether it’s current status qualifies for the one of a state.
The standing Issue to decide upon is:
Whether the Republic of Nagorno Karabakh qualifies as a state in accordance with International Public Law. According to Public International Law the State is: “An entity having exclusive jurisdiction with regard to its territory and personal jurisdiction in view of its nationals” . But before starting discussion by elements requires an issue must be covered: Whether the right to self determination can imply the establishment of full independence. The Armenian side can support its position based on the UN General Assembly Resolution 2625 (XXV) of 1970, which states: “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 ” . Here, Azeri side may argue that the UN GA Resolutions are not binding, but the Armenian side can base its counterargument on the policy which is achieved through implementation of this Resolution, as it settles the conflict and brings peace and security to the region. Taking into account the fact that the declaration of independence was adopted based on the results of the Referendum and in accordance with international law and USSR law on secession; NKR has to be granted a status of an independent state which was established through exercise of self determination right of the people of Karabakh. Now about PIL rule on State. It requires an exclusive jurisdiction over territory and population, which only NKR has and implements through its state institutions (President, Government, Parliament, Police, Passports, etc), although Azeri side can argue by saying it is assisted by the Republic of Armenia , but the Armenian side may counter argue that this is just a matter of cooperation of two states.
The NKR status can be defined also by the Montevideo Convention of 1993 which stipulates that the state has to meet several requirements to be regarded as a state; these elements are: 1) defined territory, 2) permanent population, 3) Government, which controls the territory 4) capacity to engage in international relations. Now the issue is whether NKR qualifies as a state under the meaning of the Montevideo Convention?
The sub issue is whether the requirement of defined territory is met in the NKR situation. “A territory is an area of land under the jurisdiction of a governmental authority” . The Armenian side can successfully argue that: The requirement of having a defined territory is met, because Karabakh, as a separate entity had authority to govern its territory as of 1918, then during its autonomous regime, and after the declaration of Independence . Azerbaijan can argue that this territory is not recognized by the international community as fixed/defined. But the Armenian side can state that if this requirement is interpreted very strictly we will wind up with very few states in the world having fixed borders. There is always a dispute over some territories of even “developed” states: the example of Azerbaijan can be brought up, as discussed before, Azerbaijan claims sovereignty as a successor of 1918 Azerbaijani Republic, which existed only for two years and which according to League of Nations decision didn’t have fixed territory. And still it is treated by the UN as a state, and what about the NKR; the latter exists for more that 15 years, isn’t it the best proof of being a state with efficient control over the territory. Azerbaijan may argue that it is mainly supported and subsidized by Armenia . But what else can Armenia do in these geographical and economical constrained circumstances: blockade imposed by Azerbaijan .
The next sub issue is whether the requirement of having a permanent population is met. The PIL defines: “A state population exists only if its overwhelming part at least is willing to form a particular state” . The plain meaning “Permanent” is: without any demographical major changes. The Armenian side can state that the requirement of having a permanent population is definitely met as willingness to form a particular state as NKR in our case was reflected in the results of the referendum conducted in 1991 December 10, and for 15 years no major changes were identified in the size of the NKR population. 144,000 people live in NKR, 95% Armenian, 5% other nationality, but before that within the regime of autonomous region under Azeri Government major displacements of Armenian population out of Karabakh took place. In this context Azeri side can not argue anything.
The next sub issue is whether the requirement of having a government is met in case of NKR. ” A government is a body that has the authority to make and the power to enforce laws within a civil, .. organization or group, “to govern” means to administer or supervise, whether over a state, a set group of people, or a collection of assets” . The Armenian side can prove that the Government of the NKR controls in full and successfully the territory of NKR and has the legitimate authority for it, due to the fact that the Parliament and President are elected through legitimate elections. Azerbaijan may argue that NKR doesn’t control the territory without foreign aid, meaning that Armenian troops are present in NKR supporting NKR army. The Armenian side may counter argue that according to the Montevideo Convention an exception is granted to the states when it has newly gained its independence, and we know that it is a newly gained independence in regard of NKR. Here the Azeri side states that Azerbaijan acquired its independence at the same time as NKR proclaimed, and still it is capable of full control of its territory without other state’s aid (but they won’t do it because indirectly they will admit that Karabakh acquired independence). The Armenian side can argue that nobody may restrict the right of a state to choose cooperating in all spheres of economical, political, and security issues, and Azerbaijan also cooperates in military issues with Turkey and gets a lot of aid. Many states choose to develop military cooperation in different forms starting with financial military aid ( Azerbaijan and Turkey ), finishing with Agreements to safeguard the borders ( Armenia and Russia ), with their allies and this fact does not deprive them from their right to be recognized as fully competent state.
The next sub issue is whether the NKR has capacity to engage in international relations. It is defined that “A state must have the competence, within its own constitutional system , to conduct international relations with other states, as well as the political, technical and financial capabilities to do so” The requirement to have a capacity to engage in international relations also may be interpreted strictly and loosely. The Azeri side can claim that NKR doesn’t have any diplomatic relations on a state level. But in our case Karabakh has a number of Representative Offices in Russia , US, France , has an Embassy in Armenia . And there can be stated that the fact that the Ceasefire Agreement was signed and succeeded is only due to the presence of the NKR as a signatory to it, and that the fact that more than 10 years of the Agreement’ s implementation proves the successful participation of NKR in international relations. Besides, many international organizations conduct humanitarian assistance projects and none of them would have the right to implement projects if not for the agreement with the Government of the NKR. Isn’t it a capacity to engage in international relations, although not very high level, but still very official.
So, NKR qualifies as a state as it meets all the four requirements for state. But Azerbaijan can still argue that it’s not de jure recognized by any country. So now the issue is: Whether NKR can claim to be qualified as a state if it’s not recognized de jure by any country? There are two theories for Recognition: Constitutive and Declarative . The Azeri side will stick to the Constitutive theory as it sets a requirement for the state to be recognized by the international community in order to have a status of state, but the Armenian side can successfully base its position on the Declarative theory, as it defines that, as mentioned in the first pages, Recognition is only a confirmation of a state status.
The Montevideo Convention Article 3 states: The political existence of the state is independent of recognition by other states. Even before recognition the state has the right to defend its integrity and independence ..and consequently organize itself as it sees fit, to legislate upon its interests. and define the jurisdiction and competence of its courts.” . To conclude it can be stated that the fact that NKR is a state is a reality; it exists for more than 15 years, having a legitimate power over its controlled territory, exercising judicial, executive, and legislative power in its territory which can not be ignored by the international community.
As per the discussion of all related issues we can conclude that Karabakh people possess the right to self determination, which doesn’t violate any international norm and territorial integrity of Azerbaijan in particular, as it is not applicable to the case of Karabakh, they (Karabakh people) exercised this right through legitimate means, which grants them a legal basis for the establishment of independence and state, moreover nowadays situation in NKR proves that all requirements imposed by PIL and Montevideo Convention are met and due to which it exists for more than 15 years (although not very long, but still stable), therefore NKR has to be recognized as a state and member of international community by the world. It is highly recommended to support this position to achieve final peaceful solution in this Karabakh conflict, which can be done by involvement of Karabakh as a party and participant of all peaceful negotiations. The fact that the Ceasefire signed by Karabakh in 1994 brought peace in the region is the best proof that without Karabakh participation in the process, no successful solution can be achieved. The question of later unification with Armenia is not related to this one. We will leave it for future.
Legal Aspects ( www.armeniaforeignministry.com/fr/nk/legalaspects/legalaspect_full.pdf )
Blueprint for Resolution
Legal Aspects (same place)
Legal folder www.nkrusa.org/nk_conflict/legal_folder.html
Legal aspects ( www.armeniaforeignministry.com/fr/nk/legalaspects/legalaspect_full.pdf )
Legal folder www.nkrusa.org/nk_conflict/legal_folder.html
International Law, P.Biryukov, p. 19, Moscow 1998
Encyclopedia of Public International Law
International Law, P.Biryukov, p. 63, Moscow 1998
Encyclopedia of Public International Law
Pravovaya Papka, http://grants.iatp.irex.am/artsakh/
USSR Law on Secession http://www.nkrusa.org/nk_conflict/ussr_law.shtml
http://www.tamilnation.org/selfdetermination/98unesco.htm#Means of Attainment of Self-determination .
Legal aspects, Quebec case UN Resolution, http://www.armeniaforeignministry.com/fr/nk/legalaspects/legalaspect_full.pdf
Encyclopedia of PIL, p. 601
Legal Folder, http://www.nkrusa.org/nk_conflict/legal_folder.html
Encyclopedia of PIL, p 601
Capsule Summary, Chapter 4 States
International Law, P. Biryukov, p 63