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THE CAUCASUS & GLOBALIZATION
Przemystaw ADAMCZEWSKI
Ph.D. (Hist.), Vice Principal of the Higher School of Humanitarian Sciences and Economics (Sieradz, Poland).
LEGITIMACY OF THE ESTABLISHMENT OF "THE NAGORNO-KARABAKH REPUBLIC" IN COMPLIANCE WITH SOVIET LEGISLATION
Abstract
This article examines the legal status of Nagorno-Karabakh in Soviet legislation and analyzes the legitimacy of establishing the Nagorno-Karabakh Republic on this basis. It shows that the Soviet of People's Deputies of the Nagorno-Ka-
rabakh Autonomous Region did not have any powers or rights with respect to enactment of the region's unilateral withdrawal from Azerbaijan and that not one of its decisions on this issue has legal implications.
Introduction
Although more than two decades have passed since the collapse of the Soviet Union, attempts are still being made to show that establishment of the unrecognized Nagorno-Karabakh Republic was legal under the Soviet legislation in effect at the beginning of the 1990s. These attempts are aimed at legitimizing its existence and, in so doing, promoting recognition of its independence by the international community. Good cases in point are the frequent attempts to legitimize establishment of an independent Nagorno-Karabakh Republic both by Russian authors, for example, Andrey Areshev in his article "Karabakhsky konflikt: istoricheskie i politiko-pravovye aspekty" (The Karabakh Con-
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flict: Historical and Political-Legal Aspects) published in Mayendorfskaia deklaratsiia 2 noiabria 2008 goda i reaktsiia na ee priniatie (The Meyendorff Declaration of 2 November, 2008 and the Response to Its Adoption), and, as stands to reason, by Armenian authors, for example, Levon Melik-Shakhnazarian and Ashot Khachatrian, who presented their arguments on this count in an article called "Nagorno-Karabakhskaia Respublika v svete mezhdunarodnogo prava" (The Nagorno-Karabakh Republic in the Light of International Law). Of course, there are many works that address the issue, to one extent or another, of whether the Nagorno-Karabakh Republic was established in compliance with Soviet law. This question has also been repeatedly raised by Armenian politicians, both at the state and international level. All of these arguments are based primarily on several events, the most important being:
■ The decision of a special session of the regional Soviet of the Nagorno-Karabakh Autonomous Region (NKAR) of 20 February, 1988 on asking the Supreme Soviets of the Armenian S.S.R., Azerbaijan S.S.R., and U.S.S.R. to examine and come to a positive conclusion on transfer of the NKAR from Azerbaijan to Armenia;
■ Adoption by the Supreme Soviet of the Azerbaijan S.S.R. on 30 August, 1991 of the Declaration on Restoring State Independence of the Azerbaijan Republic. This led to proclamation of the Nagorno-Karabakh Republic in 1991 in compliance with the Soviet law in effect at that time, which took place at a joint session of the Nagorno-Karabakh regional and Shahoumian district Soviets of People's Deputies of 2 September, 1991;
■ The fact that, after establishment of the Nagorno-Karabakh Republic, it was an independent entity in the Soviet Union and did not belong to Azerbaijan;
■ The fact that independence of the Nagorno-Karabakh Republic was established on the basis of a referendum held in December 1991, this being confirmed by the collapse of the Soviet Union at the end of the same month.
However, a close look at the matter shows that the arguments relating to the authority to create the Nagorno-Karabakh Republic in compliance with Soviet law are full of contradictions and, primarily, they ignore everything that does not coincide with the thesis accepted a priori.
The Legal Status of Nagorno-Karabakh in Soviet Law
In order to study the possible legitimacy of the secession of Nagorno-Karabakh from Azerbaijan in compliance with Soviet law, we must first study its legal status. It was mainly set forth in three documents. Art 87 of the U.S.S.R. Constitution of 1977 says that the Nagorno-Karabakh Autonomous Region (NKAR) belongs to the Azerbaijan S.S.R., while Art 86 points out that the law on the autonomous region, in accordance with the statement of the Soviet of People's Deputies of the autonomous region, is adopted by the Supreme Soviet of the Union republic to which the region belongs. The Constitution of the Azerbaijan S.S.R. also addressed the question of the NKAR in Arts 83, 84, and 138.
However, the basic document defining the status of the NKAR was the Law on the Nagorno-Karabakh Autonomous Region of 16 June, 1981 adopted by the Supreme Soviet of the Azerbaijan S.S.R. in accordance with a statement by the NKAR Soviet of People's Deputies. It laid down the basis for organizing and carrying out the activity of the autonomy's power bodies, their powers, and their relations with the republican and Union authorities. The definition of the competence of the NKAR Soviet of People's Deputies set forth in the said documents was extremely important with respect to the attempts to substantiate secession of the Nagorno-Karabakh Autonomous Re-
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gion from Azerbaijan. The powers of this local body were mainly concentrated on socio-cultural and economic activity. In compliance with Soviet laws, both Union and republic, not one document endowed the NKAR Soviet of People's Deputies with the competence to examine questions at its sessions concerning secession of the region from the republic. Such rights were only granted to the Union republics.
The Law of the Azerbaijan S.S.R. on the Nagorno-Karabakh Autonomous Region adopted by the Supreme Soviet of the Az.S.S.R. in 1986 significantly expanded the provisions of the U.S.S.R. Constitution of 1977 concerning the NKAR. While the U.S.S.R. Constitution did not mention that the territory of an autonomous region could not be altered without its consent (such mention related only to autonomous republics), the republican law of 1986 indicates specifically that "the territory of an autonomous region cannot be altered without the consent of the Soviet of People's Deputies of the Nagorno-Karabakh Autonomous Region."1
In so doing, the fact must be emphasized that Art 78 of the U.S.S.R. Constitution indicated that the territory of a Union republic cannot be altered without its consent. If such consent were obtained, it had to be approved by the U.S.S.R. Supreme Soviet. So the Constitution established that the Union authorities would make the final decision concerning any territorial changes to the republics. The constitutions of the Azerbaijan S.S.R. and Armenian S.S.R. also mentioned the need to reach mutual consent in issues regarding border changes between republics.
Attempts to begin the formal-legal process of secession of the NKAR from the Azerbaijan S.S.R. began in 1988. On 20 February, a special session of the NKAR people's deputies asked the Supreme Soviets of the Armenian S.S.R., Azerbaijan S.S.R., and U.S.S.R. to examine and come to a positive conclusion on the transfer of the NKAR from the Azerbaijan S.S.R. to the Armenian S.S.R. As early as June, the Supreme Soviet of the Armenian S.S.R. consented to making the NKAR part of the republic. Keeping in mind this positive response, a decision was adopted at the session of the NKAR Regional Soviet of People's Deputies of 12 July, 1988 to secede from the Azerbaijan S.S.R.2
The absence of Azerbaijan's consent meant that this decision violated Art 78 of the U.S.S.R. Constitution and the Constitution of the Azerbaijan S.S.R., to which all decisions adopted by the Soviet of an Autonomous Region had to correspond. Moreover, in correspondence with Art 42 of the Law of the Azerbaijan S.S.R. on the Nagorno-Karabakh Autonomous Region, the NKAR Soviet of People's Deputies could make a decision within the limits of the powers granted it in compliance with Soviet and Azerbaijan S.S.R. law. On the basis of the same article, if Union or republican laws were violated by a regional Soviet of People's Deputies, the Presidium of the Supreme Soviet of the Azerbaijan S.S.R. could cancel such a decision.
This happened as early as 13 July, when, referring to the above-mentioned legislative acts, the Presidium of the Supreme Soviet of the Azerbaijan S.S.R. deemed the decision of the NKAR Soviet of People's Deputies of 12 July, 1988 on the autonomous region's unilateral secession from the Azerbaijan S.S.R. to be in contradiction to current law and, consequently, devoid of all legal implica-tions.3
This question was also examined by the U.S.S.R. Supreme Soviet, which adopted a corresponding resolution on 18 July. It was emphasized that, as a result of the decision of the Azerbaijan S.S.R. Supreme Soviet, it was impossible for the NKAR to accede to the Armenian S.S.R., since this would violate the constitutionally established national-territorial division of the Azerbaijan S.S.R. and Ar-
1 Law of the Az.S.S.R. on the Nagorno-Karabakh Autonomous Region, available at [www.iatp.am/gharabagh_ conflict/zak2.htm], 15 June, 2012.
2 See: "Nagorno-karabakhsky konflikt," available at [http://dic.academic.ru/dic.nsf/politology/1839/%D0%9D% D0%B0%D0%B3%D0%BE%D1%80%D0%BD%D0%BE], 15 June, 2012.
3 See: K. Ali, "'Nezavisimost' Karabakha, vkliuchennogo v Armeniiu. Tupik chetvertyy," available at [http://www. novosti.az/analytics/20100316/43324955.html], 29 March, 2010.
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menian S.S.R. This decision ensued from Art 78, according to which the borders of a union republic cannot be altered without its consent, and Art 87, which says that the NKAR belongs to the Azerbaijan S.S.R.
On 17 September, 1989, the Supreme Soviet of the Azerbaijan S.S.R. adopted a document that had a significant impact on subsequent events. This document stated that the Supreme Soviet of the Azerbaijan S.S.R. has the right to establish and eliminate autonomous formations in its territory.4 This was obviously the legal basis to be referred to should the republic's authorities adopt a decision to eliminate the NKAR. Until the constitutional law was adopted, the provision of the 1981 law was in effect that said that the borders of the NKAR could not be altered without the consent of its authorities. This law expanded the provision of the U.S.S.R. Constitution of 1977 in correspondence with which the provision that the borders of an autonomous formation cannot be altered without the consent of its authorities related only to autonomous republics; this provision did not extend to Nagorno-Karabakh, which was an autonomous region. So the act adopted on 17 September by the Supreme Soviet of the Azerbaijan S.S.R. set forth the legal procedure that corresponds to the U.S.S.R. Constitution. Moreover, the declaration of 5 October, 1989 by the Supreme Soviet of the Azerbaijan S.S.R. regarding the republic's sovereignty in the U.S.S.R. was also important. Art 6 said that the laws of the Azerbaijan S.S.R. are in effect throughout the territory of the Azerbaijan S.S.R. Laws of the U.S.S.R. that do not violate the sovereign rights of the Azerbaijan S.S.R. are in effect in the territory of the Azerbaijan S.S.R.5
However, at the joint session held on 1 December, 1989, the Supreme Soviet of the Armenian S.S.R. and the National Council of Nagorno-Karabakh adopted a decision On Reunification of the Armenian S.S.R. and Nagorno-Karabakh. The decision was adopted contrary to the Union laws, since the law did not envisage the existence of such a body as the National Council of Nagorno-Karabakh. Moreover, it was a violation of Art 78 of the U.S.S.R. Constitution, which stated that the borders of a Union republic cannot be altered without its consent. All of this was set forth by the U.S.S.R. Supreme Soviet in a resolution of 10 January, 1990.6
In order to create additional semblance of the legality of the Nagorno-Karabakh's accession to the Armenian S.S.R., on 13 February, 1990, the Supreme Soviet of Armenia adopted a resolution on deeming illegal the decision of the Caucasian Bureau of the C.C. of the Russian Communist Party (Bolsheviks) of 5 July, 1921 on the accession of Nagorno-Karabakh to Azerbaijan.7 This was related to the fact that the Armenian side believed that a party authority could not adopt decisions on the borders of republics that at that time were de jure independent. The Azerbaijani side thought that the Supreme Soviet of the Armenian S.S.R. had exceeded its powers and that it could not adopt decisions on alterations to the borders of other Union republics.8 Even without examining the legality and substantiation of the mentioned decision of the Caucasian Bureau, Nagorno-Karabakh's affiliation to Azerbaijan was confirmed in several government documents, including the U.S.S.R. Constitution of 1977. Thus, even without taking into consideration the legality of the Communist Party's decision of 1921, the fact that Nagorno-Karabakh belonged to the Azerbaijan S.S.R. could not be disputed in accordance with Soviet law.
On 3 April, 1990, the U.S.S.R. Supreme Soviet adopted a key document, the Law of the U.S.S.R. on the Procedure of Secession of a Union Republic from the U.S.S.R. (hereafter referred to as "The Law on the Procedure"), on the basis of which attempts are being made to this day to
4 See: V. Krivopuskov, "Miatezhnyy Karabakh," available at [http://armenianhouse.org/krivopuskov/karabakh/ 009-125.html], 14 June, 2012.
5 See: Konstitutsionnyy zakon o suverenitete Azerbaidzhanskoi SSR, available at [http://constitutions.ru/archives/ 2893], 14 June, 2012.
6 See: S. Lavrenov, "Karabakhskiy uzel," available at [http://constitutions.ru/archives/2893], 14 February, 2009.
7 See: V. Bogdanovich, A. Manachinsky, Iu. Egorov, Konflikty i voyny posle raspada SSSR, Kiev, 2008, p. 375.
8 See: I. Mammadov, T. Musaev, Armiano-azerbaidzhansky konflikt, Tula, 2006, p. 59.
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legalize the establishment of the so-called Nagorno-Karabakh Republic. It set forth the procedure for the secession of republics from the Soviet Union in accordance with Art 72 of the U.S.S.R. Constitution, which said that each Union republic has the right to freely secede from the Soviet Union.9 In this respect, the law was aimed at setting forth steps to be taken in the event a Union republic decided to secede from the U.S.S.R. According to the Union laws, the decision of a Union republic to secede from the U.S.S.R. must be made by means of a referendum. The Supreme Soviet of the Union Republic wishing to secede from the Union called for it to be held. It is also important that, according to the law, if the Union Republic had autonomous formations within its borders, referendums were to be conducted separately in each of them. The people residing in the autonomies had the right to independently decide whether to remain in the Soviet Union or in the seceding republic. Moreover, referendum results were to be considered separately for the territory of a Union Republic with a compactly settled ethnic minority population which constituted a majority in that particular territory of the Republic. A referendum was considered successful if no less that two-thirds of the citizens with the right to vote who live permanently in the Union republic at the time of the referendum were in favor of secession. The referendum results were then to be reviewed in the republic's Supreme Soviet together with the Supreme Soviet of the autonomous formation or with the relevant Soviets of People's Deputies. In accordance with the Law, the Supreme Soviet of the Union Republic was to report on the referendum results to the U.S.S.R. Supreme Soviet. The referendum results were then submitted to the U.S.S.R. Congress of People's Deputies, which also took into account the opinion of the government bodies of the corresponding Union formations regarding the adopted decision. The Congress established an interim period that was not to exceed five years, during which all problems arising in connection with the secession of the Republic from the U.S.S.R. were to be resolved. It envisaged creating joint committees for engaging in issues relating to borders and military facilities, financial matters, and so on. At the end of the interim period or preliminary resolution of all matters envisaged by the law, the Supreme Soviet was to convene a Congress of People's Deputies of the U.S.S.R. to make a decision confirming that all issues had been completely resolved and the demands, both of the Union republic and of the Soviet Union, as well as of the autonomous formations and ethnic groups living in the particular republic, had been met. In so doing, the final decision belonged to the Congress of People's Deputies of the U.S.S.R., and only it had legal implications.
The key event that was used as the basis for Nagorno-Karabakh's legal secession from Azerbaijan was adoption by the Supreme Soviet of Azerbaijan on 30 August, 1991 of the Declaration on Restoring State Independence of the Azerbaijan Republic. It declared restoration of Azerbaijan's independence, referring to the Azerbaijan Democratic Republic that existed in 1918-1920.
This document was repeatedly used in attempts to legalize establishment of the Nagorno-Karabakh Republic.10 In particular, it was mentioned in the Declaration on its proclamation, which said that "ascertaining proclamation by the Azerbaijani Republic of 'restoration of 1918-1920 state independence,'" the joint session of the Nagorno-Karabakh regional and Shahoumian district Soviets of People's Deputies with the participation of deputies of Soviets of all levels proclaims the establishment of the Nagorno-Karabakh Republic.11 This argument is also often supported by the fact that reference was made to the Azerbaijan state of 1918-1920, as well as to the preamble of the Constitution of the Azerbaijan Republic of 1995, in which illegal seizure of power by the Communists in this country in 1920 was recognized. In this way, according to some political scientists, Azerbaijan de-
9 See: Zakon SSSR "O poriadke reshenia voprosov, sviazannykh s vykhodom soiuznoi respubliki iz SSSR," available at [http://sevkrimrus.narod.ru/ZAK0N/1990.htm], 19 January, 2010.
10 See, for example: L. Melik-Shakhnazarian, "Svidetelstvo o nezakonnom rozhdenii," available at [www.voskanapat. info/news/2009-10-20-72], 9 March, 2010.
11 See: Declaration on the Proclamation of the Nagorno-Karabakh Republic, available at [http://www.nkr.am/en/ declaration/10/], 14 June, 2012.
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prived itself of a legal basis for claiming the state borders of the Soviet period and, consequently, there are no legal grounds to claim that Nagorno-Karabakh is part of Azerbaijan.12
Nevertheless, the Azerbaijan Declaration of 30 August, 1991 does not have any international legal implications since it is only a manifesto containing a reference to the tradition of Azerbaijan statehood after World War I. This ensued from the principle that the succession of states is not violated by interstate agreements on border issues, which is expressed, among other things, in Art 11, Item "b" of the Vienna Convention of the Succession of States in Respect of Treaties adopted in 1978.13 If its principles were not followed, many absurd situations would appear in international relations. For example, Russia, as the successor of the Soviet Union, assumed rights and obligations under contracts entered by the U.S.S.R.14 Among them were agreements on the external borders of the Union state and therefore, if there had not been a compulsory rule about the succession of borders, Russia could have claimed the state borders of the Soviet Union.
Following the logic that Nagorno-Karabakh does not belong to Azerbaijan, since the latter referred to the Azerbaijan state of 1918-1920, another interesting fact is revealed. Had the R.S.F.S.R. Congress of People's Deputies or, possibly, the Supreme Soviet of the Russian Federation made similar claims, at the beginning of the 1990s the country might have returned to the prerevolutionary borders of czarist Russia and in so doing included, in particular, Finland and a large part of Polish territory along with Warsaw in present-day Russia. In so doing, the fact that the Azerbaijan Republic referred to inheriting the Azerbaijan Democratic Republic could only have symbolic meaning and in no way entail international legal implications. What is more, even in Azerbaijan, the Declaration of 30 August, 1991 is not considered an act of establishment of the independence of this country. It was established by a "constitutional act on state independence of the Azerbaijan Republic," which was not adopted by the Supreme Soviet until 18 October.15
Moreover, the reference in the Preamble of the Azerbaijan Constitution to the Azerbaijan Democratic Republic cannot be a basis for interpretation through the prism of the 1918-1920 borders, since it is only of a declarative nature. For example, in the preamble to the Polish Constitution there is a reference to the First and Second Polish-Lithuanian Commonwealth (Rzeczpospolita),16 but this is not an international legal argument for declaring that Vilnius and Lvov be included in the present-day Polish borders.
Nevertheless, Armenian politicians and some political scientists wishing to legalize the establishment of the Nagorno-Karabakh Republic refer to the fact that in mid-1991 Azerbaijan began the process of secession from the Soviet Union, which, in turn, in compliance with the Law on the Procedure permitted Nagorno-Karabakh to declare the establishment of the Nagorno-Karabakh Republic on 2 September, 1991. Then holding a referendum was to have led to the fact that when the international community recognized the independence of the Azerbaijan Republic, the former NKAR would no longer be a part of it. So establishment of the Nagorno-Karabakh Republic was supposedly carried out without violation of international regulations and the territorial integrity of Azerbaijan. The fact that Nagorno-Karabakh was still part of the Soviet Union in December 1991, that is, before the official collapse of the Soviet Union (this occurred at the end of December), should have made it possible to hold a referendum on the basis of the Law on the Procedure. Its results, in turn, would have led to acquiring independence.
12 See: G. Melik-Shakhnazarov, "Politizatsiia istorii kak istochnik napriazhenia mezhnatsionalnykh otnoshenii," in:
Mayendorfskaia deklaratsiia 2 noiabria 2008 goda i reaktsia na ee priniatie, Moscow, 2009, p. 317.
13 See: Vienna Convention on Succession of States in Respect of Treaties, available at [www.vilp.de/Enpdf/e013. pdf], 9 March, 2010.
14 See: "Note of the Ministry of Foreign Affairs of the Russian Federation to the Heads of Diplomatic Representative Offices in Moscow of 13 January, 1992," in: Mezhdunarodnoe pravo: sbornik dokumentov, Moscow, 2000, pp. 73-74.
15 "Prazdniki Azerbaidzhana," available at [www.dipinfo.ru/gk/azerbaijan/azerbaijanfestival#8], 20 October, 2011.
16 See: Constitution of the Polish-Lithuanian Commonwealth, available at [http://www.sejm.gov.pl/prawo/konst/ polski/wstep.htm], 14 June, 2012.
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The main legislative act on which supporters of the legality of secession of Nagorno-Karabakh from Azerbaijan relied was the Law on the Procedure of Secession of a Union Republic from the U.S.S.R. and in particular its Art 3, which said: "In case the Union Republic has autonomous republics, autonomous regions or autonomous territories within its borders, referendums are to be conducted separately in each of the autonomies. The people residing in the autonomies are given a right to independently decide whether to remain in the Soviet Union or in the seceding Union republic, as well as to decide on their state legal status." In so doing, the fact is ignored that declaration of the establishment of the Nagorno-Karabakh Republic violated several provisions of this Law, in particular:
—Art 4 (The Supreme Soviet of a Union republic is to form a commission with participation of all interested parties);
—Art 6 (In a Union republic that has autonomous republics, autonomous regions, autonomous territories or territories with compactly settled national minority population, as mentioned in the second part of Art 3 of the present Law, within its borders, the results of the referendum are to be reviewed by the Supreme Soviet of the Union Republic jointly with the Supreme Soviet of the Autonomous Republic and respective Soviets of People's Deputies);
—Art 7 (The Supreme Soviet of a Union Republic then submits the results of the referendum along with the necessary conclusions and suggestions made by the respective state authorities to the Supreme Soviet of the U.S.S.R. If it is verified that the referendum is conducted in accordance with the law, the Supreme Soviet of the U.S.S.R. takes it to the Congress of the People's Deputies of the U.S.S.R. for review. In case the law is violated during the course of the referendum, the Supreme Soviet of the U.S.S.R. makes a decision to conduct a second referendum within three months);
—Art 9 (Results of a referendum are to be reviewed by the Congress of People's Deputies of the U.S.S.R. which sets an interim period);
—Art 14 (During the interim period the Council of Ministers of the U.S.S.R., bodies of state government of Union republics and autonomous formations shall settle property and financial matters);
—Art 20 (Confirmation at the U.S.S.R. Congress of People's Deputies of the fact that the differences between the Union republic seceding from the U.S.S.R. and autonomous entities belonging to this republic have been settled).
According to Armenian politicians, proclamation of the Nagorno-Karabakh Republic led to the fact that it became a direct administrative unit in the Soviet Union. However, in the Soviet period, this interpretation did not have a legal basis. Moreover, it could lead to a paradox if we proceed from the fact that the decisions of the Armenian S.S.R. and NKAR concerning secession from the Azerbaijan S.S.R. would have had legal implications. So the indicated Declaration does not correspond to the decision of 1 December, 1989 on the accession of Nagorno-Karabakh to Armenia, or to the Declaration on Armenia's Independence of 23 August, 1990, which indicates that the independence of the Republic of Armenia is declared, among other things, in correspondence with the provisions of the resolution of 1 December, 1989 adopted at a joint session of the Supreme Soviet of the Armenian S.S.R. and the National Council of Nagorno-Karabakh.17 Thus, if the legality of the two decisions is recognized, they would clearly contradict each other.
However, the referendum of 10 December, 1991 should not be equated with the referendum envisaged by the Law on the Procedure, since they addressed different issues. The latter related to the question of further existence in the U.S.S.R. or in the seceding republic, whereas the referendum held in
17 See: Deklaratsiia o nezavisimosti Armenii, available at [www.parliament.am/legislation.php?sel=show&ID= 2602&lang=rus], 18 November, 2010.
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Nagorno-Karabakh looked at the following question: "Do you accept that the proclaimed Nagorno-Karabakh Republic be an independent state independently determining the forms of cooperation with other states and communities?"18 This referendum was not enforced by Soviet law, so holding it cannot be justified under the latter. What is more, the Law on the Procedure did not permit the Soviet of People's Deputies of the autonomous formation belonging to the Union republic that made the decision to secede from the Soviet Union (we are not examining here the question of whether the decision of the Supreme Soviet of the Azerbaijan Republic of 30 August is a legal act of secession from the Soviet Union) to make a unilateral decision on secession of the autonomous formation from the republic.
In this case, other contradictions appear when trying to prove the legitimacy of establishment of the Nagorno-Karabakh Republic in compliance with Soviet laws. Political scientists, such as Andrey Areshev, show that the decision of the special session of the NKAR People's Deputies of 20 February, 1988 corresponded to the law. In this respect, an important question arises: Did Nagorno-Karabakh belong to Azerbaijan or Armenia before 2 September, 1991? If it belonged to Azerbaijan, all of Armenia's efforts to withdraw the region from Baku's jurisdiction should be deemed invalid. Difficulties would also have arisen in interpreting the Declaration on Armenia's Independence, in which there is reference to the decision on unification with Nagorno-Karabakh. If, however, Nagorno-Karabakh belonged to Armenia, we would have the absurd situation of Nagorno-Karabakh's secession from Armenia and not from Azerbaijan in the fall of 1991. So any decision regarding proclamation of Azerbaijan's independence is not grounds for justifying the legality of establishment of the Nagorno-Karabakh Republic.
The logic of the defenders of Soviet law, who make it imperative with respect to secession from a Union republic, is also violated in the following case. In accordance with the decision of the U.S.S.R. Supreme Soviet of 3 April, 1991 On Introduction of the Law of the U.S.S.R. On the Procedure of Secession of a Union Republic from the U.S.S.R., any action relating to posing the question of secession of a Union republic from the U.S.S.R. and contradicting the Law of the U.S.S.R. On the Procedure of Secession of a Union Republic from the U.S.S.R. taken both before and after it came into effect do not have any legal implications for either the U.S.S.R. or for the Union republics."19
So it can be asserted that proclamation of Azerbaijan's independence contrary to the Law did not have any legal implications and so it remained part of the Soviet Union until December 1991. As a result, Nagorno-Karabakh would not have any legal grounds for seceding from Azerbaijan. A similar situation could also be applied to Armenia, which, like all the other Union republics, did not observe the Law on the Procedure either. The reason for this was that adoption of this law was dictated by need owing to the growing trend toward decentralization in the republics that emerged at the end of the 1980s. In fact, its adoption was not meant for regulating the procedure of secession from the Soviet Union, but on the contrary was aimed at blocking this possibility in accordance with Art 72 of the Constitution. The procedure created was so complicated it was essentially impossible to observe. It was understood that, by introducing this law, national minorities could become a fifth column of union dissidents who could influence the course of events in certain republics.
Azerbaijan did not secede from the Soviet Union and did not declare its independence in accordance with Soviet law. In the fall of 1991, a special Congress of People's Deputies of the U.S.S.R. was held, which examined the statehood of entities of the Soviet state,20 and the Law on State Power and Government Bodies in the Interim Period was adopted.21 On its basis, the U.S.S.R. National Coun-
18 "Referendum," available at [http://www.nkr.am/ru/referendum/42/], 13 June, 2012.
19 Resolution of the Supreme Soviet of the U.S.S.R. of 3 April, 1990, available at [http://lawrussia.ru/texts/le-gal_346/doc346a546x339.htm], 13 June, 2012.
20 See: "Pervoe zasedanie Gossoveta: suverennaia politika pri ekonomicheskom sotrudnichestve," Izvestia, 9 September, 1991.
21 See: Zakon SSSR "Ob organakh gosudarstvennoi vlasti i upravleniia Soiuza SSR v perekhodnyy period" ot 5 sentiabria 1991 goda, available at [http://pravo.levonevsky.org/baza/soviet/sssr0036.htm], 30 March, 2010.
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cil was created, which was to resolve domestic and foreign policy matters concerning the republics' common interests. In addition, the Congress declared an interim period for developing a new system of interstate relations, the purpose of which was to enter an agreement on a Union of Sovereign States. The desires of the republics to become entities of international law and member states of the U.N. were supported. The Congress expressed respect for the Union republics (other administrative units, like autonomous regions, for example, were not mentioned), which adopted a declaration on sovereignty and acts of independence. The fact was also emphasized that non-accession to the new union would make it necessary to hold talks with the Soviet Union to resolve a set of issues relating to secession, as well as to immediate accession of the independent republics to the Nuclear Non-Proliferation Treaty, as well as to the Final Act of the CSCE and other relevant acts and international agreements.22
Azerbaijan was also quickly recognized by other states as a full-fledged participant in international relations. The basis for this was the uti possidetis iuris principle. This is a generally accepted rule that applies to post-colonial territories and former union members in which adiminstra-tive borders exist that functioned in the preceding political system.23 In so doing, it is not ethnic criteria that are taken into account, but only the fact that the borders of new states should correspond to the borders of the Union republics that already existed. The uti possidetis iuris principle was confirmed in 1986 when the U.N. International Court recognized it as the main component of international legal order.24
So, in correspondence with the uti possidetis iuris principle, at the time Azerbaijan declared its independence in 1991 and this fact was recognized by the international community, its borders were established on the borders of the Azerbaijan S.S.R. and so the territory of the former NKAR also became part of it. This is shown by serveral Soviet legislative documents, and primarily by the U.S.S.R. Constitution, the Constitution of the Azerbaijan S.S.R., and the Law of the Azerbaijan S.S.R. on the Nagorno-Karabakh Autonomous Region. From the viewpoint of international legal acts, even abolishment of the NKAR as an administrative unit by the Supreme Soviet of Azerbaijan of 26 November, 1991, would not have led to its secession from the existing republic.25
Conclusion
Attempts to justify the legality of establishment of the Nagorno-Karabakh Republic based on Soviet legislation are unjustified and contradict each other. The assertions that Nagorno-Karabakh seceded from Azerbaijan on the basis of the Law on the Procedure of Secession of a Union Republic from the U.S.S.R. have propagandistic implications, since they are in no way justified. The thesis that the Declaration on Proclamation of the Nagorno-Karabakh Republic was adopted in correspondence with Art 3 of the Law on the Procedure is commensurable with attempts to prove that Ilham Aliev could become president of Armenia. This would have followed from the fact that the Elections Code of the Republic of Armenia envisages that the president of the country can only be someone older than 35. In keeping with this kind of logic, regardless of whether it contradicted other provisions of
22 See: Postanovlenie S'ezda Narodnykh Deputatov SSSR "O merakh, vytekaiushchikh iz sovmestnogo Zaiavleniia Prezidenta SSSR i vysshikh rukovoditelei soiuznykh respublik i reshenii vneocherednoi sessii Verkhovnogo Soveta SSSR" ot 5 sentiabria 1991 goda, available at [www.bibliotekar.ru/mihail-gorbachev/84.htm], 18 January, 2010.
23 See: A. Pellet, "The Opinions of the Badinter Arbitration Committee. A Second Breath for the Self-Determination of Peoples," European Journal of International Law, No. 3, 1992, pp. 178-185.
24 See: S. Oeter, 'The Right of Self-Determination in Transition Deliberations on the Debate on Self-Determination, the Right of Secession and 'Premature' Recognition," Law and Society, No. 49/50, 1994, p. 153.
25 See: Zakon Azerbaidzhanskoi Respubliki "Ob uprazdnenii Nagorno-Karabakhskoi avtonomnoi regioni Azerbaid-zhanskoi Respubliki" ot 26 noiabria 1991 goda, available at [www.zewo.ru/laws/0279-xii.html], 19 March, 2010.
THE CAUCASUS & GLOBALIZATION
the Code, the only important thing would be that Ilham Aliev corresponded to this prerequisite. The situation is the same with the Law on the Procedure. Not only is there no evidence that the conditions set forth in Art 3 were executed when forming the Nagorno-Karabakh Republic, nor is there any proof that the other requirements set forth by the Law on the Procedure were carried out.
Another key issue is the question of competence. The NKAR Union of People's Deputies did not have the relevant legal competence for settling issues relating to the decision on national independence and so could not adopt resolutions on secession from Azerbaijan. Following the logic of the arguments of politicians and political scientists who think that the decision of 2 September, 1991 was legal, we can claim that the administration of the Derbent District, for instance, could make a final decision to secede from Russia and become part of Azerbaijan.
Attempts to legalize the creation of the Nagorno-Karabakh Republic on the basis of Soviet legislation are farcical and aimed only at those not well-versed in the basic documents that apply to the NKAR. These attempts are even more surprising since the question of the international community recognizing the independence of the Nagorno-Karabakh Republic will not be based on whether it was formed in accordance with Soviet law or not. The subjectivity of a state and its capacity to participate in international relations is determined by recognition by other states, which in turn is a political act. On the other hand, the decision to recognize independence or not is the sovereign affair of every state. International recognition of the independence of the Azerbaijan Republic and Republic of Armenia at the beginning of the 1990s was not based on whether they appeared in correspondence with Soviet law or not. It was a political issue. The attempts to prove by all means that the unrecognized Nagorno-Karabakh Republic was established in correspondence with the Soviet law are more detrimental than helpful to the promulgators in reaching their intended goal. At the same time, the impression is created that the authors of this approach do not have enough other arguments to prove that the Nagorno-Karabakh Republic deserves recognition by the international community as an independent entity of international relations. And we wonder if this is even possible.
