Our Analytics 26 september — 15:42

Nagorno-Karabakh: Without right to secession (Farhad Mirzayev shatters arguments of Armenian legal experts)

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BY FARHAD MIRZAYEV, EXCLUSIVELY FOR AZERI DAILY

From the editorial office

In their treacherous and aggressive struggle for the right to secede from Azerbaijan, Karabakh separatists and representatives of the Armenian political establishment speculate on the alleged right of the former NKAO (Nagorno-Karabakh Autonomous Region) to secede from the USSR. Moreover, bringing a distorted legal basis under the occupation policy, the Armenian political thought implants a false interpretation of Soviet legislation, manipulating the succession of the modern Azerbaijan Republic from the first Azerbaijan Democratic Republic.

The far-fetched reasons and groundless arguments of the Armenian legal experts and politicians are shattered to dust in the scholarly works by the well-known specialist in the field of international law Farhad Mirzayev.

We should remind that 40-year-old Farhad Mirzayev graduated with honours from the Faculty of International Law of Baku State University and defended his PhD thesis on the international legal position of Azerbaijan in the Nagorno-Karabakh conflict at the Academy of Public Administration under the President of the Republic of Azerbaijan. He continued his education at the University of Nottingham (Great Britain) and received a master's degree in international law, and later defended his doctorate at the University of Leicester (Great Britain) on international legal assessment of post-Soviet conflicts, including the Nagorno-Karabakh conflict, under the guidance of an outstanding international law professor Malcolm Shaw, becoming the first Azerbaijani to receive a doctorate in public international law in the UK.

He is also a graduate of Cambridge and Harvard Universities in various disciplines in the field of economics and law. Author of over a hundred scientific articles, studies and monographs on various issues of international law. Has extensive international experience in legal work in the UK, France, Russia and the Middle East.

Farhad Mirzayev

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The statements of political and public figures of Armenia on the Karabakh conflict evoke a whole range of reactions from indignation to irony. The official position of this country is that Karabakh was never a part of Azerbaijan, but only at a certain period was forcibly transferred by the central leadership of the Communist Party of the USSR and personally by Joseph Stalin under the control of the Azerbaijan SSR. The main argument of the Armenian side is that before the declaration of independence by the Azerbaijan Democratic Republic in 1918, Nagorno-Karabakh and Nakhchivan were not part of Azerbaijan and were not under its control, being at least disputed territories.

Yerevan reinforces its considerations with the arguments that the Constitutional Act on the State Independence of the Republic of Azerbaijan dated October 18, 1991 proclaimed the restoration of the state independence lost as a result of the occupation of Soviet Russia in 1920, while the agreement on the formation of the USSR of December 30, 1922 is invalid ab initio, that is, from the moment of signing. Accordingly, the present Azerbaijan Republic is the successor of the Azerbaijan Democratic Republic, ADR that existed only from May 28, 1918 to April 28, 1920.

Misinterpretation of history and the implacability of laws

Meanwhile, the arguments of the Armenian side in connection with the fact that the present Azerbaijan, having proclaimed the restoration of state independence of 1918-1920 and becoming the legal successor of the ADR that existed at that time, cannot claim the borders of Soviet Azerbaijan, are absolutely unfounded. In this case, the concept of stability of border treaties is in force, which is a rule of customary international law, which was subsequently incorporated into Article 11 of the Vienna Convention on the Succession of States with Respect to Treaties and Agreements.

However, we will return to this later.

It is important here that if we agree with Yerevan regarding the period of Azerbaijan's history associated with gaining independence in 1918-1920 and attempts to achieve its de jure recognition by the international community, and, consequently, the limits of the country's territory and border lines, then such a position can become a serious basis to revise the territories and borders of the Armenian state itself that subsequently developed. In this case, Azerbaijan will have the right to present territorial claims to Zangezur and other Western Azerbaijani lands given by Moscow to Armenia. So the official Yerevan should seriously think before making such groundless claims.

The separatist movement in the NKAO began with a demand to join Armenia

'NKR' as an attempt to disguise aggression

As for the Nagorno-Karabakh conflict itself, here it is not about the right of the so-called 'people of Nagorno-Karabakh' to self-determination up to secession and the creation of an independent state, but about the aggression of Armenia against Azerbaijan. And in this case, the puppet formation 'NKR' is nothing more than an attempt to disguise the occupation of the territory of one state by another.

But we will not follow the populism used by the Armenian side, but again we will refer to international law. Thus, in 2015, the European Court of Human Rights in the case of Chiragov and Others vs. Armenia clearly determined that it is Armenia that exercises effective control over the 'NKR' and that this entity cannot be considered an independent entity. This means that 'NKR' is nothing more than a puppet regime fully controlled by Armenia.

Uti possidetis, ita possideatis

Obviously, after the collapse of the USSR, the international legal doctrine of uti possidetis juris (lat. 'as you possess under law') formed the basis of international, regional and national legitimisation of the borders of the newly independent states. This is a principle that has long been established in international practice, and it means that the new states that have gained independence have the same territory and with the same borders that they had before.

So, according to this doctrine, from the moment the Republic of Azerbaijan gained independence, the former administrative borders of the Azerbaijan SSR, within which the NKAO and Nakhchivan AR were also located, were transformed into international borders, which, in turn, are protected by international law.

In the landmark judicial precedent Burkina Faso v. Republic of Mali 1986 (Case concerning the Frontier Dispute), examined by the International Court of Justice, it was determined that uti possidetis juris is a general principle of international law applicable to cases when the former administrative boundaries between parts of a once united state during its collapse are transformed into the internationally recognised borders of now independent states.

In addition, discussions around the definition of the boundaries of the newly formed CIS member states led all interested parties to the conclusion that an agreement should be signed between the former Soviet republics, which could guarantee the preservation of the borders that existed within the former USSR.

The post-Soviet republics, which supported the idea of the inviolability of the former administrative borders, pointed to the emergence of instability in the region otherwise, a threat to peace and security and, naturally, to the general principles of international law. Despite the fact that the Minsk and Almaty declarations on the creation of the CIS, its goals and principles, contain only a direct reference to the principle of territorial integrity, which protects state borders, it is obvious that the main intention of the parties was to approve and strengthen the doctrine of uti possidetis juris and ensure the legitimacy of new borders at the international, regional and national levels.

The collapse of the Soviet Union has clearly made a significant contribution to strengthening the rule of customary international law uti possidetis juris, which makes it possible to automatically transform administrative boundaries into international ones.

It is no coincidence that Article 5 of the Agreement on the Formation of the Commonwealth of Independent States, signed on December 8, 1991 in Minsk, proclaims that 'the parties recognise and respect the territorial integrity and inviolability of the existing borders within the CIS.' This provision was confirmed by the Almaty Declaration of December 21 of the same year, signed by eleven former republics of the USSR. This interstate document confirmed the obligations of the CIS member states to recognise and respect the territorial integrity and inviolability of the existing borders of the member states. The CIS Charter, adopted on January 22, 1993 in Minsk, in Article 3 affirms the principle of respect for the territorial integrity of the member states and the principle of recognising the inviolability of existing borders, thereby confirming the transformation of the former administrative borders of the USSR republics into the international borders of newly formed states. In addition, in 1994, the CIS member states signed a new declaration on respect for the sovereignty, territorial integrity and inviolability of the borders of the member states, which further strengthened the obligation to apply the principle of uti possidetis juris to the territory and borders of the former republics of the USSR.

International Court of Justice

It is noteworthy that Armenia signed all these documents without any reservations, thereby recognising the frontiers of independent Azerbaijan within the borders of the former Azerbaijan SSR.

Such agreements within the CIS and the position of the European Community, expressed in the Declaration on the Leadership on the Recognition of New States in Eastern Europe and the Soviet Union of December 16, 1991, give full grounds for the application of the principle of uti possidetis juris, thus depriving Armenia and its puppet regime in Nagorno-Karabakh of the right to insist on secession from Azerbaijan.

Law that was contrary to the Constitution and which was never applied

Armenia's arguments based on the fact that Nagorno-Karabakh was not previously a part of Azerbaijan as an independent state and seceded from the USSR in accordance with Soviet legislation do not stand up to criticism. The Armenian side often refers to the notorious Soviet law of the USSR 'On the procedure for resolving issues related to the secession of a union republic from the USSR' of April 3, 1990. According to this law, in a union republic, which has autonomous republics, autonomous regions and autonomous districts, a referendum was to be held separately for each autonomy.

At the same time, the secession of the union republic from the USSR could be recognised legally only after passing through numerous and long stages of the secession procedure, which, in turn, had to be confirmed by the decision of the Congress of People's Deputies of the USSR. Until the collapse of the USSR, this law was not applied to any of the republics of the USSR, not excluding Azerbaijan and Armenia. In addition, in Article 173 of the Constitution of the USSR there was a provision that this document, as the Basic Law of the country, had supreme legal force and that all laws and other acts of state bodies were issued on the basis of and in accordance with the Constitution.

So, before starting to consider the provisions of the USSR law 'On the procedure for resolving issues related to the secession of a union republic from the USSR,' it makes sense to analyse some of the provisions of the 1977 USSR Constitution, as well as the 1978 Azerbaijan SSR Constitution. So, in Article 76 of the Constitution of the USSR it was enshrined that the union republics were sovereign states united with other republics in the USSR. And Article 78 enshrined the provision that the territory of a union republic could not be changed without its consent and that the borders between union republics could only be changed by mutual agreement of the respective republics, moreover, subject to approval by the USSR.

And the law 'On the procedure for resolving issues related to the secession of a union republic from the USSR' of April 3, 1990, which seems to be based on these articles of the Constitution of the country, specifically that law's Article 3 stated that in the union republic, which has autonomous republics and autonomous regions, a referendum on the issues of staying within the USSR or secession from the Union republic is held separately in each autonomy, and the issues of determining the state and legal status are within the competence of these entities. And this despite the fact that the provisions of Article 78 of the Constitution of the USSR stated that the territories of the union republics cannot be changed without their consent. Such changes could only be carried out on the basis of a mutual agreement between the union republics. That is, even a person ignorant in jurisprudence can clearly see that Article 3 of this law is contrary to the provisions of the Constitution, the Basic Law of the USSR.

What does Soviet legislation say?

Without setting a goal to separately consider the political aspects of this issue and why exactly a year before the collapse of the USSR such a controversial law was adopted, creating legal grounds for the subsequent collapse of the union state, we will try only to substantiate the legal competence of Article 3 of the USSR Law 'On the procedure for resolving issues related to with the secession of a union republic from the USSR,' the provisions of which directly contradicted the provisions of the Constitution, where union republics were recognised as sovereign states and where autonomous regions were their integral part. So how did the Supreme Soviet of the USSR adopted a law, which in its essence can be regarded as a violation of the sovereign rights of the union republics provided for by the USSR Constitution of 1977, and even as a violent desire to change the territorial integrity and borders of the subjects of the USSR, which, as already indicated, in accordance with the Constitution of the USSR were sovereign states. The inconsistency of the provisions of this law with the Constitution of the USSR and such fundamental principles of international law as territorial integrity, inviolability of borders, respect for sovereignty and others is so obvious that hardly anyone would deny it. And in the presence of such serious grounds, consideration of any arguments based on this law is inappropriate and unproductive.

Collapse of a state and world practice

Meanwhile, the use of uti possidetis juris and the need to transform the former constitutional units - republics, and not autonomous regions and autonomous republics - was confirmed in practice by the Badinter Commission when considering the issues of the split of Yugoslavia and the delimitation of the territories of six former union republics of the SFRY. The Badinter International Expert Commission in its conclusions clearly defined that only six former constitutional republics of the SFRY, and not autonomous units within these republics, had the right to secede up to the creation of an independent state within the constitutional borders of the former union Yugoslavia. In the case of the USSR, one can speak only about 15 former republics, but not NKAO as part of the Republic of Azerbaijan.

Guided by the principles and norms of international law, Azerbaijan took an absolutely objective position, offering Nagorno-Karabakh any status only in the context of the right to internal self-determination, that is, the status of an autonomy.

In this regard, another precedent is also legitimate at the level of the international community regarding the ownership of autonomous entities. This is the so-called Åland dispute between Finland and Sweden. The crisis was resolved by the League of Nations, stating that the concession to national minorities in the matter of granting them the right of secession from the society, to which they belong, and from the state in whose territory they live, on the basis of linguistic, religious or ethnic difference or their expression of will, will only mean violation of order and stability within a given state and the establishment of anarchy in the international arena, which, in turn, fundamentally contradicts the very idea of the state as a territorial and political entity. And it was at the beginning of the last century...

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