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The
legal aspects
of the conflict
Economic
damage to
Azerbaijan inflicted by the aggression of Armenia
Chronology
of the Armenian aggression
Khojaly
genocide
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The Legal Aspects of the Conflict
a).
Based on the laws and Constitution of the former USSR.
On February 20 1988, a session of the Supreme
Soviet of the Mountainous Karabakh Autonomous Region (Mountainous Karabakh
region) appealed to the Supreme Soviet of Armenia, Azerbaijan and the
USSR 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 Mountainous Karabakh and in Armenia with hostilities
against Azeris. Strikes and mass demonstrations were organized in order
to exert pressure on the 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 Mountainous Karabakh region on secession
from Azerbaijan and incorporation into Armenia and adopted a decision
confirming that Mountainous Karabakh remains an Autonomous Region within
Azerbaijan. The response to this decision in Mountainous Karabakh was
again strikes and mass protests.
All attempts of Azeri authorities to discuss
possible solutions to existing problems in the Region with local Armenian
authorities of Mountainous Karabakh were rejected. Representatives of
the Azeri government visiting Stepanakert to hold negotiations were attacked
and beaten.
On December 1, 1989, the Supreme Soviet of
Armenia adopted a resolution on unification of Mountainous Karabakh with
Armenia. Such a resolution violates Azerbaijani territorial integrity
and makes the territorial claims official.
The Autonomous Regions in the former USSR did
not have constitutions as did Autonomous Republics, neither had the right
of secession as did the Union Republics. The principles 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.
b). Based on
the Treaty of the Commonwealth of Independent States.
After the coup d'etat failure and the USSR's
collapse, 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, territorial integrity. However, the Armenian population in Mountainous
Karabakh held a referendum, declared the establishment of the «Mountainous
Karabakh Republic» as an «independent» state and appealed to the Commonwealth
for membership. This separatist action contradicts to the principles of
the Treaty, signed by 11 sovereign republics, the Helsinki Final Act and
International Law, and was not recognized by the Commonwealth or any other
states of the world.
c). Based on
International Law, OSCE and U.N. principles
At the present time Armenia has changed its
policy towards the Mountainous Karabakh problem. Former Armenian president
Ter-Petrosyan and other officials stated that Armenia had no territorial
claims to Azerbaijan and Mountainous Karabakh was the internal matter
of Azerbaijan and the problem of self-determination of the Armenian population
there. Even the official approach of the Armenian government changed,
but the resolution on incorporation of Mountainous Karabakh still exists.
Armenian officials say that it is not valid, but it was not annulled and
officially still on the book. The deputies elected in Mountainous-Karabakh
are still members of the Armenian Parliament and the Armenian soldiers
are fighting on the territory of Azerbaijan and killing its citizens.
Though Armenia's authorities changed their strategy and stance on the
problem, the facts show the volume of political and military interference
of Armenia into internal affairs of the Republic of Azerbaijan.
Armenians of Mountainous-Karabakh also changed
their position at present stage of the conflict. At present time they
do not voice their desire to join Armenia, but declare their goal to establish
an independent state based on the principle of the people’s right to self-determination.
In that case, it is very important to differ between the rights of «people»
and the rights of «minorities». Armenians living in Azerbaijan are national
minority, which has a mother-nation in Armenia. Karabakh Armenians have
the right to internal self-determination, meaning the right to determine
their status for effective participation in political, social, economic,
cultural, religious and public life in Azerbaijan in a manner, which is
not threatening the territorial integrity of Azerbaijan and its sovereignty.
After the collapse of Russian Empire the Armenian people exercised their
right to self-determination on the territory of present Armenia plus Zangesur,
given to it by the Bolshevik government after the occupation of the two
republics in 1920-21. The Armenian people achieved independence and their
right to self-determination on the territory of the present Armenia again
after the collapse of the Soviet Union in 1991.
Strictly legal arguments against secession were summarized by Lee C. Buchheit
and include the following:
1. That the right of self-determination of
people 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 are the objects of that law;
3. The so-called principle of mutuality; as
states cannot oust a part of them, equally a part of a State cannot forcefully
secede.
How many times will the Armenian people exercise
its right to self-determination by building independent states? Today
they plan to do it on the territory of Azerbaijan; by this logic in the
future it can took place in Georgia, Russia, even California as well.
Armenian scholars emphasize that Mountainous Karabakh is a special case
and Karabakh Armenians differ from the other Armenian communities outside
of Armenia, as they had autonomous status, which is the starting point
for self-determination and as a result of it, for secession. But the Autonomous
Region of Mountainous 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 Mountainous Karabakh and Armenians living in compact communities in
other countries. No doubt that Armenians living in Mountainous Karabakh
in Azerbaijan or in the territory of other states are national minority
and have the right to determine their status inside the states they inhabit,
but should not take measures for its dismemberment.
«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 it 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»1.
Armenians in Azerbaijan as a national minority
have the right to internal self-determination which enable their free
participation in the political life of Azerbaijan, pursue their economic,
social and cultural development, to 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
does not necessarily mean secession, particularly by the use of force.
The problem of self-determination, and as result
of it secession, is a very complicated question, especially, in such area
as the Caucasus, where the state borders don't coincide with the ethnic
ones. The secessionist approach in this area will lead to instability,
confrontation, and bloodshed. It will not serve the purposes of friendly
relations between the Caucasian peoples. The present situation in Caucasus
proves it, particularly, Mountainous Karabakh in Azerbaijan, South Ossetia
and Abkhazia in Georgia. The demands for the secession of Mountainous
Karabakh from Azerbaijan after the deportation of all Azeris from Armenia
and later from Mountainous Karabakh, flagrant violation of their right
to self-determination seems to be not only illegal, on the basis of the
existing international norms, the principles of the OSCE and UN, but also
immoral.
So, the solution of minorities’ problem in
the framework of the present borders and on the basis of Art 27 of the
Covenant on Civil and Political Rights are more constructive than secession,
which was always the factor of destabilization in the Caucasus.
The express acceptance in the relevant UN resolutions
of the principles of the national unity and the territorial integrity
of the State implies non-recognition of the right of forceful
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»2.
This is how a prominent expert on international
law and the problems of self-determination Antonio Cassese describes the
issue in his article «Self-Determination of Peoples»: «The
right to self-determination, I have said, belongs also to «national» peoples
in a multi-national state like the federated republics of the USSR. Unlike
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 party to the Covenant, is bound to honor». Armenians
living in Azerbaijan and Georgia, Georgians living in Azerbaijan and Azeris
who lived in Armenia and are living in Georgia are considered to be ethnic
minorities who have the rights formulated in Art 27 of the Covenant on
Civil and Political rights, but not in Art 1 of the same Covenant.
The free interpretation of Art 1 of the Covenant
on Civil and Political Rights, due to the self-determination of peoples
with regard to the Armenian population of Mountainous Karabakh, used by
Armenian side, is nothing more than the speculation on UN documents in
order to justify the military occupation of Azerbaijani territory, inhabited
predominantly by Armenians. Commenting UN practice, Professor Van Dyke
wrote that the UN would be in an extremely difficult position if it had
to interpret the right to self-determination in such a way as to invite
or justify attacks on the territorial integrity of its own members3.
Armenia and Azerbaijan became the members of
the OSCE and the United Nations, objects of International Law, and thus
are obligated to follow its principles. However, Armenia violates the
territorial integrity of Azerbaijan, as well as the principles of the
United Nations, by sending armed forces into Mountainous Karabakh. Such
use of force is prohibited, according to Art 2 (4), unless the UN Security
Council authorizes Armenia’s use of force, which is irrelevant in this
case. Armenia's invasion of the part of Azerbaijani territory is therefore,
a violation of the prohibition of the use of intend-state force in the
UN Charter Art 2 (4) and inconsistent with Art 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 force against the territorial integrity or political
independence of any State, or from action 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 low»4.
Armenia denies the presence of its troops in
Mountainous Karabakh, trying to convince the international community that
it does not violate the territorial integrity of Azerbaijan and norms
of the international law. However, there are many facts showing the participation
of the Armenian Army soldiers in military and terrorist actions in the
territory of Azerbaijan. All these facts are based on investigations,
photo and video materials. The presence of Armenian military troops on
the territory of Azerbaijan is said to be for «self-defense» purposes.
In that case, it is not clear, why Armenian «self-defenders» attacked
the Azeri towns and villages, burnt their houses, killed civilians and
evicted the Azeri population from Mountainous Karabakh. The reference
to self-defense is an attempt to justify the undeclared war against Azerbaijan
over five 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 visited
the area and gathered more detailed and objective information about the
conflict over Mountainous Karabakh. On February 27-28 the first CSCE fact-finding
mission presented its report on the conflict between Azerbaijan and Armenia
over Mountainous Karabakh to the Committee of Senior Officials of the
CSCE. The members of the Committee adopted the recommendations to conflicting
sides, which was based on the principle of inviolability of the borders
(one of the basic principles of CSCE) and human and minority rights protection.
Azerbaijani government stated that local and cultural autonomy can be
given to Armenians in Mountainous 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. The Armenian side considers that secess on of
Mountainous Karabakh from Azerbaijan and establishment of independent
Mountainous Karabakh republic is the only resolution of the conflict.
Such an option is not acceptable to Azerbaijan as it violates its territorial
integrity and sovereignty and contradicts to OSCE and 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» - says
UN Charter.
But Armenia is continuing the forcible occupation
of the territories of Azerbaijan, planning to annex the territory of Azerbaijan
and link Mountainous Karabakh with Armenia. Such actions by Armenia will
escalate the tension and the war between Azerbaijan and Armenia, and will
threaten the stability of the whole region.
«No
State or group of States has the right to intervene, directly or indirectly,
for any reason whatever, in the internal or external affairs of any other
State. Consequently, aimed intervention and all other forms of interference
or attempted threats against the personality of the State or against its
political, economic and cultural elements are in violation of international
law»6.
-
UN resolution
2625 (XXV) adopted at 24 October 1970
-
G. Espiell,
The Right to Self-Determination, supra note 151, para. 90
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V.Van Dyke,
Human Rights, the United States and the World Community 102,1971
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Charter of
Paris For a New Europe, Paris, 1990
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The Right of
Self-determination. Declaration on the Granting of Independence to Colonial
Countries and Peoples. General Assembly resolution 1514 (XV) of 14 December
1960
-
(XXV) Declaration
on Principles of International Law concerning Friendly Relations and
Co-operation among states in accordance with the Charter of the United
Nations, 20.10.1970
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