On the Legal-Political Status of Nagorno-Karabakh (Artsakh)

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By Dr. Vahagn Vardanyan

Preface by Dr. Arshavir Gundjian

Ever since the declaration of the independence of Armenia in 1991, the recovery of historically Armenian lands of Karabakh, otherwise known as Artsakh, by its Armenian owners has been at the center of preoccupation of all Armenians and most particularly Armenians in Artsakh and the Republic of Armenia.

The latest calamity of the war of Artsakh has undeniably had dramatic consequences, potentially threatening now the very existence of Armenian statehood.

The article below is a reminder of recorded legal facts that have a central and crucial importance in repositioning the entire Artsakh issue discourse on the international political landscape. Armenian and Artsakh diplomacy have missed this far the opportunity to make prevail within the international community the fundamental fact that Artsakh has actually legally already been a sovereign country since December 10, 1991.

Consequently in total contradiction to how the Azerbaijani-Turkish propaganda machine has succeeded in presenting the Artsakh war as Azerbaijan’s “justified liberation” of its lands from separatist Armenian fighters, this article emphasizes and reminds readers of the powerful and legally defensible thesis that the reality is quite the contrary. In fact, during this last war, it was the already legally sovereign country of Artsakh that was the subject of aggression and occupation by Azerbaijan. Therefore, Artsakh is the side which is legally entitled to recuperate all of its lost lands (notice that this includes all regions) and to receive compensation for its material and human losses.

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The article is authored by Dr. Vahagn Vardanyan who holds a doctorate in Political Geography received from the National University of Singapore. His research interests, among others, include national identity, nation/place branding, and diaspora-homeland relations.

Dr. Vardanyan currently resides and works in Hong Kong, he is a leading active member of the recently created “New Armenia Network State” association. This article was recently published in the Greek City Times on April 08, 2021.

Over the past decades, discussions on the recognition of Nagorno Karabakh’s (Artsakh’s) sovereign status have been taking place. As the main framework of the talks and political negotiations, the aspects of Artsakh’s self-determination and Azerbaijan’s territorial integrity have been seen as two contradicting ones. The invasion of Azerbaijan in Artsakh on September 27 in 2020 further escalated and complicated the conflict, despite the unilateral statements by the political leadership of Azerbaijan on having the conflict resolved. The de facto partial occupation of the Republic of Artsakh’s territories, as an outcome of the Second Artsakh War of 2020, does not abolish the Republic’s legal-political status.

The status of Nagorno-Karabakh (Artsakh), as argued, should be viewed from the perspectives of the presented conceptually new approach. Information given below will be of significant help for larger audiences to understand Nagorno Karabakh’s (Artsakh’s) legal-political status. It guides the formation of understanding about: 1. The way Artsakh’s political status and rights are perceived in the region (including in Azerbaijan) and the rest of the world; 2. The legal basis and the legality of proceedings that are connected to the actions Artsakh may undertake in the future.

The following consecutive ten points help formulate the foundation and justification of the status of Nagorno Karabakh (Artsakh):

1) As of 1990, both Nagorno Karabakh (then the Nagorno-Karabakh Autonomous Oblast/Province or NKAO) and Azerbaijan (the rest of then-Soviet Azerbaijan) were parts of one sovereign entity – the Soviet Union (USSR). It is essential to determine the extent to which the development of Nagorno-Karabakh’s status has complied with the acting legislation.

2) On April 3, 1990, the USSR adopted a law (N 1409-I titled “On the Procedure for Resolving Issues Related to the Exit of a Union Republic from the USSR” regulating the conditions for the secession of union republics and autonomous units (including autonomous oblasts/provinces) from the USSR. This right was extended even to non-autonomous regions with ethnic groups of dense inhabitation.

3) According to Article 3 of the above-mentioned Law, each autonomous unit included in a Soviet republic’s territory (for example, NKAO in Soviet Azerbaijan) was provided with an independent right to hold a referendum on secession from the USSR. This right prescribed a referendum as the only legal path to achieving sovereignty. To put it simply, each autonomous unit (NKAO, for instance) had an independent right to withdraw from the USSR following the referendum results.

4) On December 10, 1991, in full compliance with the acting legislation, a referendum was held in Nagorno Karabakh (then-NKAO), following which the Nagorno Karabakh Republic (present: Republic of Artsakh) was proclaimed.

5) According to Article 6 of the Law mentioned above, the referendum results were to be reviewed by the Supreme Council (the parliament) of Soviet Azerbaijan, together with Nagorno Karabakh’s authorities. However, from the day the referendum’s results became public until the very moment the USSR stopped existing (00:00 on December 26, 1991), no actions to consider the results of Nagorno-Karabakh’s referendum were initiated by Azerbaijan. The acting legislation in the USSR prescribed no other settlement of this issue. Thus, following the USSR’s dissolution, two sovereign nation-states were formed on Soviet Azerbaijan’s territory: the Nagorno-Karabakh Republic (present: Republic of Artsakh) and the Republic of Azerbaijan.

Additionally, on October 18, 1991, Azerbaijan declared its sovereignty through the Constitutional Act of the State Independence, which stated that the (modern) Republic of Azerbaijan was the legal successor of the Democratic Republic of Azerbaijan (1918-1920). A noteworthy detail was that the latter never had Nagorno Karabakh included as a part of its territory. Moreover, the Act classified the Soviet rule as “annexation”. Such legal definition prescribes cancellation of all legal actions initiated by the occupying/annexing power, in particular, the inclusion of Nagorno Karabakh in Soviet Azerbaijan in the early-1920s. Last but not least, Azerbaijan held a referendum on secession from the USSR (to repeat: the only legal path to exercise sovereignty from the Union) only three days after the USSR’s end: on December 29, 1991. This fact clarifies that before the USSR stopped existing as a sovereign legal-political entity (00:00 on December 26, 1991), Azerbaijan continued to remain a republic within the USSR and, as of then, had failed to fulfil its obligations stipulated by law.

6) After gaining de jure independence (note: up to that moment, no former territorial unit of the USSR might have its independent army), Azerbaijan unleashed an undeclared war against Nagorno-Karabakh. The latter defended itself, preserved most of its territory (within the NKAO borders), and liberated the adjacent areas. Territories acquired during the war through the counter-offensive cannot be considered “illegally occupied” but become a subject of future peace treaty negotiations, similar to, for instance, the modern French region of Alsace-Lorraine, acquired from Imperial Germany after World War I, or Russia’s Kaliningrad Oblast/Province, acquired from Nazi Germany after World War II.

7) As of 1994, when the representative of Nagorno-Karabakh (Artsakh), along with representatives of Armenia and Azerbaijan, put his signature on the cease-fire agreement (cease-fire in force from May 12, 1994), the sovereign status of Nagorno-Karabakh (Artsakh) expanded over the former NKAO and the newly-liberated territories, before the status of the latter was to be determined exclusively through peaceful negotiations. Here it is worth referring to the four UN resolutions of 1993 (April 30, July 29, October 14, and November 12), which Azerbaijan points to as its justification for considering Nagorno-Karabakh as its territory. All the four resolutions were issued in 1993, when Karabakh’s defence forces, through the counter-offensive, were liberating the security belt – the regions surrounding the former NKAO. In all the cases, the crucial pre-condition set by the resolutions was calling Azerbaijan for “cessation of hostilities” first, which Azerbaijan never did (until the mediated cease-fire in May 1994). By ignoring this fact and taking other conditions out of context is nothing but manipulating the international public opinion.

8) Within its borders, as mentioned under point 7), Nagorno-Karabakh (Artsakh) reserves a right to exercise its sovereign political decisions. Based on the information presented above, Nagorno-Karabakh’s (Artsakh’s) current status lies higher than the nations’ universal right for self-determination. It extends the territory of the Republic beyond the borders of the former NKAO by fixing it within the de-facto borders (cease-fire demarcation line) as of May 12, 1994. Thus, for Artsakh (Nagorno-Karabakh), the case is of exercising its own right for self-determination and protecting its territorial integrity.

9) Since 1992 and until September 27, 2020, sovereign (Republic of) Azerbaijan, along with all other parties involved in the conflict (as its sides and mediators: specifically, Armenia, as a guarantor of Artsakh’s security, the Organization for Security and Cooperation in Europe (OSCE) Minsk Group and its co-chair states of Russia, United States, and France, as mandated to the OSCE by the United Nations) had repeatedly and consistently insisted on the unacceptability of military solution to the conflict and that its peaceful resolution was the only acceptable solution. With this principle stated consistently for nearly three decades, after each negotiation session, any side initiating a military campaign to resolve the conflict becomes legally responsible for breaking the format of the conflict resolution process (as mandated to the OCSE by the UN). By committing the act of aggression on Artsakh on September 27, 2020, thus, Azerbaijan became legally responsible for breaking the peaceful resolution path.

10) On November 26, 2020, the Senate of the French Republic issued a resolution calling “on the French authorities to take all possible measures to ensure the restoration of the borders established in 1994, which were enshrined in the term-less trilateral cease-fire agreement signed by the Republic of Artsakh, Armenia and Azerbaijan.” This statement emphasises that Artsakh’s legally-established borders, before peace treaty negotiations take place, are those de facto existing by the time of the cease-fire (as of May 12, 1994).

The Nagorno-Karabakh conflict has not been resolved, despite Azerbaijan’s current rhetoric, which is more a propaganda language aiming at presenting and promoting itself as the only party of the conflict committed to long-term peace. Coherent peace can be established only by exercising the rights of the people who inhabit Artsakh. Consistent efforts by the official diplomacy of the Republic of Armenia and Republic of Artsakh, by Armenian diaspora institutions, as well as public diplomacy and the use of ‘soft power’, assume a long process aiming to achieve recognition of Artsakh’s already-exercised sovereignty (from 1991), i.e., to protect its people’s right for self-determination and the Republic’s territorial integrity.

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