Home page   » GARABAGH CONFLICT    » Legal aspects of conflict   

Legal aspects of conflict


After British forces entered Baku in 1918, the general V. Thomson, who represented the Allied Powers, recognized the administration of the Nagorno-Garabagh as part of Azerbaijan together with the neighboring Zangezur province. He also confirmed appointment of Khosrov Sultanov by the Government of Azerbaijan as Governor of Nagorno-Garabagh General Governorship, including these two regions. In 1919, the Armenian Assembly of Nagorno-Garabagh officially recognized the Azerbaijani authorities. During 1918-1920 the Republic of Azerbaijan had diplomatic relations with several countries. With some of them contracts on the principles of mutual relations were concluded, and sixteen states established their missions in Baku. On January 12, 1920, the Supreme Council of the Allied Powers de-facto recognized the independence of Azerbaijan at Paris Peace Conference.  
On November 1, 1920, the head of the Azerbaijani delegation sent a letter to the Secretary-General of the League of Nations, and asked for submission of an application to the Assembly of the admission of the Republic of Azerbaijan to the Organization.  

The Secretary-General noted that mandate to Azerbaijani Delegation at the Paris Peace Conference in Memorandum dated November 24 1920 had been given by the government being at power in Baku till April 1920. However, the memorandum specially reads that by the date of application of the delegation of Azerbaijan (November 1, 1920) and at the time of publication (November 24, 1920) of Memorandum the Government of the Republic of Azerbaijan, which issued the credentials to the Azerbaijani Delegation was de facto already not in power since April 1920. Then the Memorandum reads that this Government was not in control over the whole territory of the country. In this context, the most important part of the Memorandum of the Secretary General of the League of Nations is Chapter "Legal Considerations". In this chapter, including the requirement for the government to be completely self governing, the conditions laid down in Article 1 of the Charter of the League of Nations in connection with adoption of new members in organization. The relevant documents of the League of Nations Society completely denies the claim of the Armenian side about non-adoption of Azerbaijan to League of Nations because of its non-recognition of the government of Azerbaijan over Nagorno-Garabagh and as if claims for territories settled by Armenians. It is clear the state which important part of the territory was under occupation by the time of consideration of the application at the League of Nations, and the submission of the application by the government which was overthrown could not considered as a subject with full self governing power, according to requirements of Article 1 of the Charter of the League of Nations. Indeed, these conditions are prevented Azerbaijan from being admitted to the League of Nations. At the same time the League of Nations did not recognize Armenia self having no clear borders, the status and constitution, stable government. As a result, on December 16, 1920, the membership of Armenia to the League of Nations was voted down.

Nagorno-Garabagh within the Azerbaijan SSR
Besides the above-mentioned facts in connection with recognition of authority of Azerbaijan over Nagorno-Garabagh by Allied Powers, the decisions of Bureau of RC (b) P Central Committee on  Armenia's territorial claims on non-being of Garabagh under the jurisdiction of independent Azerbaijan were refused by the  Bureau while entering the Soviet Union and decided about keeping  Nagorno Garabagh within the Azerbaijan SSR based on decision held on July 5, 1921. At the same time, the Azerbaijan SSR was recommended to confer Nagorno Garabagh a broader autonomy.
On October 13, 1921, with the participation of the RSFSR in Kars on hand the Armenian SSR, Azerbaijan SSR and Georgia SSR, and on the other hand Turkey  Treaty of Friendship had been signed. Article 5 of the Treaty reads that the governments of Turkey, Armenia and Azerbaijan, expressed consent for "... forming an autonomous territory of Nakhichevan oblast under the auspices of Azerbaijan" . 
On December 13, 1922, the Transcaucasian Socialist Federative Soviet Republic (TSFSR) was established. Its Constitution confirmed the Republic of Nakhchivan as an integral part of Azerbaijan as an autonomous unit. According to this Constitution, the status of autonomous republics and oblasts (Abkhazia, South Ossetia and Ajaristan) remained unchanged. Neither in the Treaty of Kars nor in the Constitution TSFSR any notes about mountainous part of Garabagh was mentioned, because this region, known formally as an integral part of Azerbaijan. One day after the date of its adoption of the first Constitution of the USSR, i.e. on July 7, 1923, the Central Executive Committee of the Azerbaijan Soviet Socialist Republic issued a decree "On the establishment of the Nagorno-Garabagh Autonomous Region".
The status of Nagorno-Garabagh as an autonomous oblast within the Azerbaijan SSR was established in the Constitutions of the USSR of 1936 and 1977. The legal status of Nagorno Karabagh Autonomous Oblast was defined by Constitutions of the USSR and the Azerbaijan Soviet Socialist Republic respectively, with the Law adopted by the Supreme Soviet of Azerbaijan SSR "On the Nagorno Garabagh Autonomous Province" on June 16, 1981.

According to Article 78 of the Constitution of the USSR, the territory of the Union republic could not be changed without its consent. The borders between Union republics could be changed only by the mutual agreement of relevant republics and after approval of the Union of Soviet Socialist Republic. This provision was provided in the Constitutions of Azerbaijan and Armenia.
In connection with adoption of illegal decisions on separation of Nagorno-Garabagh from Azerbaijan SSR and its joining with Armenian SSR at the end of 80-es of last century   the USSR Supreme Soviet and its Politburo had discussed the situation formed at result of crisis in Nagorno-Garabagh.   In the decisions of   supreme bodies of state power of former USSR (Union of Soviet Socialist Republics) it was unambiguously stated that borders between Armenia and Azerbaijan SSR set as per the Constitution and the established national-territorial division could not be changed.
Thus, the process of separation of Nagorno-Garabagh from the Azerbaijan SSR in favor of the Armenian SSR started officially on February 20, 1988, was accompanied by the apparent violation of the Constitution of the USSR, and thus did not have any legal effect. In order to provide the legal image to the separation of Nagorno-Garabagh, the next attempt of Armenian side on September 2, 1991 proves the accuracy of this approach. In contrast to all previous decisions, declaration on the same day "Nagorno-Karabakh Republic" e was grounded by  USSR law " On issues related to settlement of the secession of union republic from the  USSR" dated on April 3, 1990,. First of all, it should be noted that the purpose of this law was regulation of the mutual relations and some processes to be observed at secession of the union republic from the USSR. Secession of the union republic from the USSR can be realized at referendum by free expression of will of the population of that republic, and the decision of holding of such referendum is adopted by the Supreme Soviet of a Union republic. At the same time under this law, in union republics having autonomous republics, autonomous provinces and autonomous regions, the referendum was to be conducted separately in each autonomous republic. Peoples of these autonomous units are entitled to settle independently the matter of staying at union republic or USSR, as well raise the question on own state-legal status. 
It should be noted that the Union republic could be considered as separated from the USSR after passing of very complex and multi-staged procedures and as a result of the adoption of the decision by the USSR Congress of People's Deputies. However, until the ceasing of the USSR’s existence as a subject of international law, the given Law was not implemented and accordingly it had no any legal effect. Thus, none of republic of the Union, including Azerbaijan and Armenia, had used the procedure of separation from the Union, envisaged by law.

Up to fully gaining of the independence of the Republic of Azerbaijan and the recognition by the international community the territory of  Nagorno-Garabagh of Azerbaijan Soviet Socialist Republic existed by November 26, 1991, had remained part of Azerbaijan.
After the collapse of the USSR in international legal doctrine of Uti possidetis Juris made basis of legitimization of borders of states newly gained independence, on international, regional and national levels. According to the doctrine of UTI POSSIDETIS JURIS, since the Republic of Azerbaijan gained its independence the administrative borders of the former Azerbaijan SSR including the area of NKAO are considered as international borders and protected by international law. This fact was stipulated and reflected in Resolutions of the UN Security Council on Nagorno-Garabagh conflict. Regarding thesis of Armenian side about depriving of Azerbaijan to pretend for borders of Soviet period by proclaiming the restoration of state independence of the years 1918-1920 and becoming the successor of then existed the ADR as if to pretend to the borders of the grounds put forward by the Armenian side, in this case the focus is to be made “On legal succession of states in respect of Treaties" of Vienna Convention, Article 11. Thus, in accordance with this Article, "Succession of States: a) does not apply at the boundaries established by a treaty...". In other words, although the USSR had international boundaries established by treaties the above-mentioned provision, in effect, regardless of the legal succession, refers to the international-legal approach. This means that the change of sovereignty is powerless to undermine boundaries having permanent nature.

Read: 7454