Gen. Hayk Kotanjian

Azerbaijan’s Laws on Its Exiting the USSR Make Karabakh’s Case for Independence

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By Prof. Hayk Kotanjian and Prof. Arthur Atanesyan

At the recent press conference of the Minister of Foreign Affairs of the Russian Federation Sergei Lavrov dedicated to European security, Lavrov expressed the opinion that the leaders of Armenia and Azerbaijan “wanted to sign a peace treaty, guided by the UN Charter and Alma-Ata Declaration. And the Alma-Ata Declaration of the creation of the CIS [Commonwealth of Independent States] clearly says that the boundaries between new states will be based on the administrative borders between the republics of the former Soviet Union. At that time, the Nagorno-Karabakh Autonomous Region definitely was a part of the Azerbaijani Soviet Socialist Republic” (https://newsarmenia.am/news/in_the_world/-eto-ne-iz-opery-peregovorov-lavrov-o-povedenii-armenii-v-peregovornom-protsesse-/).

Here we need to address the request of Armenian, Russian and American colleagues to respond to these comments, as well as similar considerations of US Congressional Rep. Frank Pallone (D-N.J.) regarding the international legal status of Nagorno-Karabakh. Such interpretations, as mentioned, intentionally lead away from the legal essence and details of the issue toward current political preferences. We consider it necessary to discuss the issue in terms of political science and international law, providing firm and well-approbated evidence that at the time of the signing of the Alma-Ata Declaration on the creation of CIS, the Nagorno Karabakh Autonomous Oblast (NKAO) was no longer part of the Azerbaijan SSR.

The starting argument of this justification is the right to withdraw a Union Republic from the USSR, enshrined in the 72nd article of the Constitution of the USSR of 1977. The procedure for the exercise of this right was established by the law of April 3, 1990 “On the procedure for resolving issues related to the release of the Union Republic from the USSR.”

According to the 3rd article of this law, autonomous entities and national minorities have the same right to withdraw from the republic and to an independent determination of their fate, if the Soviet republic to which they belong decides to withdraw from the USSR. At the same time, the republic was obliged to hold an independence referendum, also in autonomous units and in the territories of compact residence of national minorities, managing separate counting of votes (the Law of the USSR “On the procedure for resolving issues related to the withdrawal of a Union Republic from the USSR” No. 1410-1 of April 3, 1990, G.,” Vedomosti of the Congress of People’s Deputies of the USSR, Supreme Soviet of the USSR,” 1990, No. 15, in Russ.).

After the failure of the putsch in the USSR on August 19-21, 1991, the Supreme Council of Azerbaijan adopted the Declaration of Independence (Declaration of the Supreme Council of the Azerbaijan Republic “On the restoration of state independence of the Azerbaijan Republic, August 30, 1991). It was the Azerbaijani declaration to withdraw from the USSR that gave the right to the Nagorno-Karabakh Autonomous Region and the Shahumyan District with its predominantly Armenian population to independently dispose of its fate following the aforementioned Law of April 3, 1990. Following the Law, the regional council of the Nagorno-Karabakh and the district council of Shahumyan decided to proclaim the independence of the Nagorno-Karabakh Republic at a joint meeting on September 2, 1991, within the boundaries of the Nagorno-Karabakh Autonomous Region and Shahumyan District of the Azerbaijan SSR. Independence of the Nagorno-Karabakh Republic was proclaimed on the territory where the Constitution and legislation of the USSR as well as other Soviet laws were still in action and did not contradict the goals and principles of the declaration of independence and the characteristics of the Nagorno-Karabakh Republic (declaration “On the proclamation of the Nagorno-Karabakh Republic,” September 2, 1991).

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Without communicating with the authorities of the NKAO and the Shahumyan district and attempting to clarify the opinion of the Armenian population compactly living in the region, the Supreme Council of Azerbaijan adopted a constitutional act of independence (October 18, 1991) with violation of the relevant requirements of the Law of April 3, 1990, declaring Azerbaijan’s illegal decision to withdraw from the Soviet Union and its legal system, and legislatively enshrined its refusal to agree with the right of the Armenian population to determine the future of the Nagorno-Karabakh.

On November 26, 1991, the Supreme Council of Azerbaijan adopted the Law on the abolition of the Nagorno-Karabakh Autonomous Region (Law of the Azerbaijan Republic “On the abolition of the NKAO Azerbaijan Republic,” November 26, 1991. Vedomosti of Azerbaijani Armed Forces, 1991, N 24, in Russ.). The Constitutional Supervision Committee of the USSR recognized this Law as inconsistent with the Soviet Constitution (Resolution of the Constitutional Supervision Committee of the legal acts of Supreme Soviet and its Presidium, as well as the Supreme Councils of the Azerbaijan SSR (Azerbaijan Republic) and the Armenian SSR (the Republic of Armenia on the Nagorno-Karabakh Autonomous Region, November 28, 1991, N 28). Following the adoption of this Law by Azerbaijan, and under the requirements of international law and legislation of the USSR, a referendum was held on the independence of the Nagorno-Karabakh Republic on December 10, 1991, in the presence of international observers. It is especially important to emphasize that all necessary conditions have been met to enable the Azerbaijani minority of Karabakh to vote (Act of the Results of the Referendum on the Independence of the Nagorno-Karabakh Republic, Stepanakert, the Ministry of Foreign Affairs of the Nagorno-Karabakh Republic, December 10, 1991).

It is important to note that, in contrast to Armenia, which limited the process of exiting the Soviet Union during perestroika by only a political Declaration of Independence, the Azerbaijani Declaration on withdrawal from the USSR, as noted above, was supplemented by a constitutional act of independence, which also meant the legislative withdrawal of Azerbaijan from the legal personality over the territory and the population of the NKAO. It is necessary to emphasize again that the Constitution and the laws of the USSR stopped working on the territory of the independence of the Azerbaijan Republic on August 30, 1991, that is, 4 months before the Alma-Ata Declaration of December 21, 1991. From the point of view of political and legal analysis, this legislative act of Azerbaijan also deduced it from the legal subjectivity of the USSR (the constitutional act of the Azerbaijan Republic on state independence of October 18, 1991, signed two months before the Alma-Ata Declaration). In other words, Azerbaijan sat down at the table of negotiations among the subjects of the USSR in Alma-Ata, having no status of this legal subjectivity.

On December 21, 1991, the leaders of the 11 Soviet republics of Alma-Ata declared the dissolution of the Soviet Union (Alma-Ata Declaration, Alma-Ata, December 21, 1991. Legal Russia. Federal legal portal (v.3.2.), in Russ.), followed by the Declaration of the Supreme Soviet of the USSR on the creation of the Commonwealth of Independent States (December 26, 1991, N 142-H), which made the further discussion of the results of the referendum on the independence of the Nagorno-Karabakh Republic with former Soviet authorities no more possible, and unnecessary.

Thus, the self-determination of the Nagorno-Karabakh Republic (as a result of the referendum on December 10, 1991, long before the signing of the Alma-Ata Declaration) is a clearly established fact under international law as well as the constitution and laws of the USSR.

It should be mentioned that this analysis of the National Defense Research University of the Ministry of Defense of Armenia has been approbated in the Collective Security Treaty Organization (CSTO) Scientific Expert Council (chaired by the Secretary General of the CSTO, Colonel General, Extraordinary and Plenipotentiary Ambassador Nikolay Bordyuzha), the Institute for National Strategic Studies of the National Defense University of the United States, the Harvard University Kennedy School, and the Russian Association of Political Science.

As an example of professional conjugation of knowledge and art and their application in political and legal identification and settlement of the Karabakh conflict, the study “Nagorno-Karabakh: The Х-Ray of the Conflict” by former Armenian Foreign Minister (2008–2018) and Honorary Doctor of MGIMO Eduard Nalbandyan (in Russian) is highly recommended.

In conclusion, taking into account the actual importance of objective scientific analysis and expertise on the Nagorno-Karabakh problem in the context of the ongoing crisis transforming the world order, we emphasize the special importance of avoiding the replacement of the conflict analysis by situational and biased considerations.

(Hayk Kotanjian is a Professor of Political Science, a Lieutenant General (Retired) and Honorary President of the Political Science Association of Armenia. Arthur Atanesyan is Professor of Political Science, President of the Political Science Association of Armenia.)

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