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Legal aspects of the conflict
Regarding the allegation by the Republic of Armenia
to the effect that "Nagorno Karabakh has never been
a part of independent Azerbaijan"
In the past several months, various representatives of the Government of the Republic of Armenia, while referring to the conflict in and around Nagorno Karabakh region of Azerbaijan, have been promulgating the premise that "Nagorno Karabakh has never been 'a part of independent Azerbaijan".
Leaving aside the period when Nagorno Karabakh constituted an integral part of the first Azerbaijan Democratic Republic (ADR) that existed in 1918-1920, this memo concentrates on the most recent period in the history, when sponsored by Armenia, the separatist regime in Nagorno Karabakh region unilaterally and illegally announced its secession from Azerbaijan and, again unilaterally, proclaimed on 2 September 1991 the so-called "republic of Nagorny
Karabakh".
They chose the Act of the former USSR of 3 April 1990 "On the procedure for dealing with matters arising from the secession of a Union Republic from the USSR" as the basis for legality of this step. This Act gave autonomous entities and compactly settled nationalities the right to decide for themselves the question of their legal national status.
The Armenian side is confident that the establishment of the "republic of Nagorny Karabakh" was irreproachable from the point of view of standards of international law, since, in its opinion, on the date Azerbaijan obtained its recognition the "republic of Nagorny Karabakh" no longer formed part of it.
However, a simple analysis of these arguments shows that there are serious doubts as to their irreproachability precisely from a legal point of view.
To start with, the Act "On the procedure for dealing with matters arising from the secession of a Union Republic from the USSR" was based on Article 72 of the Constitution of the former USSR, under which each Union Republic had the right to secede from the USSR. The purpose of the Act was thus to regulate mutual relations within the framework of the USSR by establishing a specific procedure to be followed by Union Republics in the event their secession from the USSR. In particular, 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; a large
part of the Act is devoted to the procedure for conducting such a referendum. Of course, Article 3 of the Act merits special attention. It provided that a Union Republic containing autonomous republics, regions or areas had to conduct separate referendums in each autonomous entity. This preserved the right of the peoples of the autonomous republics and other autonomous entities to decide independently whether to remain within the USSR or the seceding Union Republics, as well as to raise the issue of their legal national status.
However, given that the Soviet Union had ceased to exist following the well-known Belovezh agreements, this Act was without legal effect, since no Union Republics, including Azerbaijan and Armenia, had used the procedure for secession stipulated in it. Only if Azerbaijan had attempted to secede from the USSR during its existence and had complied with the Act "On the procedure for dealing with matters arising from the secession of a Union Republic from the USSR", would the Nagorny Karabakh Autonomous Region have had the right to conduct a separate referendum to determine where it stood on the three possibilities: remaining within the USSR, seceding together with Azerbaijan, or raising the issue of its legal national status.
The attempt to link this Act and the Declaration on the Restoration of the State independence of the Republic of Azerbaijan, adopted by the Supreme Soviet of the Azerbaijan SSR on 30 August 1991, also fails to stand up to scrutiny. Clearly, this Declaration, which deals not with succession from the WSSR but with the restoration of the State independence of 1918 to 1920, was adopted without reference to the procedure for secession stipulated in the Union Act.
Thus, if one follows the letter and spirit of the Act of 3 April 1990 to their conclusion, the adoption of the Declaration could not serve, for the Nagorny Karabakh Autonomous Region, as a legal basis for raising the issue of its legal national status under the Act. Moreover, in accordance with the Act, the Declaration also produced no legal effects for the USSR. For paragraph 2 of the Resolution of the Supreme Soviet of the USSR of 3 April 1990 on the application of the Act of the USSR "On the procedure for dealing with matters arising from the secession of a Union Republic from the USSR" stated that "... any actions connected with the raising of the issue of the secession of a Union Republic from the USSR that run counter to the Act of the USSR 'On the procedure for dealing with matters arising from the secession of a Union Republic from the USSR', whether taken before or after its entry into force, shall be without legal effect fro both the USSR and the Union Republics".
In addition, pursuant to the Act of the Supreme Soviet of the Republic of Azerbaijan of 26 November 1991, the Nagorny Karabakh Autonomous Region, as a national territorial unit, was abolished. The Decree of the Azerbaijani Central Executive Committee of 7 July 1923 on the formation of the autonomous region of Nagorny Karabakh and the Act of the Azerbaijan SSR of 16 June 1981 "On the Nagorny Karabakh Autonomous Region" were declared null and void. It is worth noting that this decision was motivated, in particular, by the fact that the creation of the Nagorny Karabakh Autonomous Region had contributed to the deepening of the ethnic discord between the Azerbaijani and Armenian peoples.
Thus, Nagorny Karabakh was and has remained part of Azerbaijan, both before and since independence.
Taking the above-mentioned into consideration, one may conclude that the allegation by Armenia is inaccurate, misleading and totally unfounded.
More detailed Memorandum on the legal aspects of the conflict between Armenia and Azerbaijan has been issued as a document of the Fifty-ninth session of the UN General Assembly, under items 25, 58(n), and 107 of the agenda and of the Security Council (Document A/59/66-S/2004/219 dated 17 March 2004).
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