LEGAL ASPECTS OF the UPPER GARABAGH CONFLICT

by Tofiq Musaev

Without exaggeration one can say that the Upper Garabagh (‘Nagorno-Karabakh’) conflict having emerged in 1988 was one of the most terrible conflicts of the 20^th century according to its duration and consequences. The result of the war is dozens of thousands of murdered and missing people, over one million refugees, fertile Garabagh grounds are scorched. Against the background of unsuccessful efforts to find the way to solve the conflict by means of world community mediation, the major military result of the conflict is occupation of Azerbaijan’s Upper Garabagh territories and discussions around possible status of upper Garabagh which last with different degree of activity.

However, the conflict rooted in distant past is more complicated than at first sight of it. Precise examination of its beginnings can reveal the antipodal positions of the sides concerning all problems connected with these positions. Each of the sides regards Upper Garabagh as its historic land. Both consider each other to be non-autochthonic population here.

Nevertheless, we intentionally avoided touching historical aspects of the confrontation in present research as it is historians’ prerogative. Preferring to reveal the legal aspects of the problem it should be considered that even unambiguous answer concerning autochthonism within this territory will not seriously determine its legal status. Otherwise all existing boundaries should be changed all over the world. We would also like to point out that such viewpoint by no means shows lack of argumentation of one of the sides or aims at avoidance from discussions on this subject in future.

The Upper Garabagh conflict is usually regarded as confrontation of two international legal principles:

a) Territorial integrity principle

b) National self-determination principle

in fact, as this research proves the confrontation is caused artificially. Our conclusion is based on forceful international legal norms as well as international organizations’ resolutions concerning the Upper Garabagh conflict.

Armenians base their main arguments on the fact that I.Stalin incorporated Upper Garabagh into Azerbaijan in 1921 as well as alleged discrimination of Armenian population of Upper Garabagh and as consequence “well-founded” claims of self-determination in the context of annexation ¹. Obviously such approach in aimed at two aspects. First, by referring to “self-willed resolution of unconstitutional and incompetent institution (Caucasian department of Central Committee of Russian Communist Party)” Armenians are trying to gain world community’s sympathy. Second, gaining the presupposed broad countenance the Armenian side intends to reach general comprehension, tolerance or at least ignorance towards de-facto exclusion of Upper Garabagh from Azerbaijan.

As known, independent Azerbaijan Democratic Republic collapsed as a result of Russian 11^th bolsheviks’ army invasion on 28 April 1920; Azerbaijani soviet Socialist Republic was pronounced instead. Azerbaijani soviet Socialist Republic was later joined to the USSR. In view of Armenian SSRs’ territorial claims asserted to Azerbaijan SSR the abovementioned Caucasian Department considered this problem on 5^th of july 1921 and concluded to retain Upper Garabagh within Azerbaijan. At the same time Azerbaijan SSR was suggested to concede the Upper Garabagh broad autonomy. The fact that the Caucasian Department concluded to retain Upper Garabagh within Azerbaijan (not to incorporate the area into Azerbaijan as Armenian side claims) is proved by the quotation from the enacting clause of the resolution: “Based upon urgent necessity of peace between Muslims and Armenians as well as economic bonds between upper and lower Garabagh, its connection with Azerbaijan it is enacted that Upper garabagh should be retained within Azerbaijan and concede broad autonomy to the area…” ².

The “Upper Garabagh autonomous Region establishment decree” was enacted on 7^th of July, 1923. it should be noted that there were no such permissions given to Azerbaijani population of Armenia who in fact prevailed as compared to Armenian population of Upper Garabagh. According to 1918 statistics 575000 azerbaijanis lived on the territory of present Armenia. However, during the soviet rule the population ratio in Armenia was changing year by year not in favor of Azerbaijanis. This purposeful policy carried on until last Azerbaijani family had to leave Armenia.

In own report on resettlement practice in Azerbaijan F.Dang, the UN secretary general representative for displaced persons estimated the situation around Upper Garabagh conflict as follows: “Both Azerbaijan and Armenia claim their long-standing bounds with Garabagh. However, the conflict began at the down of XX century. After October communist revolution in Russia Azerbaijan and Armenia, the newly independent states fought for this territory. Azerbaijan’s claims were approved at the paris Peace Conference in 1919. after these republics had been joined to the USSR the position concerning Upper Garabagh was allocated while as Zangezur (the area connecting Azerbaijan with Nahichevan, Azerbaijani western province) was incorporated into Armenia” ³.

It’s significant that Armenians’ claims went beyond Upper Garabagh. Therefore, along with Zangezur such regions as Dilijan, Goycha, a number of villages in Gedabey, Gazakh and Nahichevan were “peacefully” incorporated into Armenian SSR as a result of “cabinet gambles” at different periods of the USSR rule.

All allegations about discrimination of Armenian population of Upper Garabagh are beneath criticism as well. Clause 86 of the ussr constitution provided that autonomous regions were an integral part of the soviet republics. The bills concerning autonomous regions were considered by the Supreme Councils of the soviet republics by proposal of the autonomous region deputies Council (= Regional Council) ⁴. there were only 8 such regions in USSR as listed in clause 87 of the USSR Constitution. According to provisions of the latter clause Upper Garabagh Autonomous Region (further in the text will be referred to as UGAR) was an integral part of Azerbaijani Republic ⁵.

Legal status of the UGAR was stipulated in “Upper Garabagh Autonomous region Act” act ratified by the Supreme Council of Azerbaijan Republic by proposal of UGAR deputies council. As a national-territorial formation UGAR had administrative autonomy and possessed a number of permissions which in practice provided satisfaction of its population specific demands. According to the clause 110 of the USSR constitution UGAR was represented by 12 deputies in Azerbaijan SSR Supreme Council and 5 deputies in the USSR Supreme Council ⁶.

Moreover, in accordance with clause 113 of Azerbaijan SSR Constitution as well clause 6 of the “Upper Garabagh Autonomous region Act” of Azerbaijan SSR one of the deputy chairmen of Azerbaijan Supreme Council was appointed from UGAR. In fact most of the UGAR officials were always Armenians despite demographic preponderance of Azerbaijanis over Armenians. Broad spectrum of permissions was possessed by UGAR deputies Council which was the public authority of the region. This institution worked on solution of local problems reasoning from Upper Garabagh population’s interests taking into consideration their national or other features. UGAR deputies Council was also entitled to take part at discussions of general importance and submit own decisions as well as guide subordinate organs. All public authorities’ activity was carried out in Armenian language (again in spite of demographic preponderance of Azerbaijanis) ⁷.

483 000 000 rubles was spent for development of Upper Garabagh infrastructure which exceeded the sum of capital investments 2.8 more within last 15 years. Average per capita investments volume increased nearly 4 times more within last two decades (226 rubles in 1981-1985 as compared to 59 rubles in 1960s). with implementation of housing reforms the living space reached 4.76 sq. m. per head in UGAR as compared to 3.63 sq. m. in other parts of Azerbaijan. As regards to public health protection total number of
beds in medical institutions was 10000 in UGAR which is 15% less than in other regions of Azerbaijan ⁸. The main character of socio-cultural development of the region was advance level (in comparison with other regions) of provision of the population with housing, goods and services. Each Upper Garabagh townsman had accommodation which was three times bigger than that of other region dweller; villagers possessed half as much of land as well ¹⁰. actually pace of development in UGAR was much higher than in whole Azerbaijan. So, production output increased by five times in other parts of Azerbaijan and by 3.3 times in Upper Garabagh (increase rates were 8.3 per cent higher). In 1986 implementation of new funds over UGAR increased by three times as compared to 1970. Therefore, Upper Garabagh Autonomous Region surpassed average activities of Azerbaijan SSR according to level of socio-economic development ¹¹. five armenian periodic printings were issued in Upper Garabagh. Unlike other administrative formations in mountainous zones of Azerbaijan upper Garabagh was provided with necessary technical equipment for reception of TV and radio casting ¹². As a form of autonomy within Azerbaijan Upper Garabagh fully met the economic, socio-cultural, national and domestic features of local population.

The countdown of present Armenia-azerbaijan conflict officially began on February, 20 1988 when at the UGAR regional council session the “resolution of Petition to the Supreme Councils of Azerbaijan SSR and Armenian SSR for Incorporation of Upper garabagh Autonomous Region to Armenian SSR” was enacted. But the order of frontier change to be made to any of the republics was strictly stipulated in Constitutions of the USSR and the Soviet republics. Thus, according to the clause 78 of the USSR Constitution the frontiers could not be changed without consent of the republic. The boundaries existing between two republics could be changed only at complete concordance of both of the republics and not without approval of the Supreme Council of the USSR ¹³.

With response to UGAR regional council petition Armenian SSR Supreme Council resolved on 15^th of june 1988 to meet the petition and addressed the USSR Supreme Council with request to consider and approve the matter of incorporation of Upper Garabagh to Armenia. In its turn, Azerbaijan SSR Supreme Council and its presidium recognized the petition groundless and inadmissible vindicating Azerbaijan’s sovereignty over Upper Garabagh Autonomous Region as stipulated in clause 78 of the USSR Constitution and 70 of Azerbaijan SSR Constitution.

Seemingly, according to the provisions of the USSR Constitution and the fundamental law of Azerbaijan and Armenia the question should have been settled especially since there were no strong reasons even to raise the question about change of the frontiers between two Soviet republics. However, the UGAR adopted the illegitimate resolution about secession from Azerbaijan Republic. Besides infringement of the corresponding provisions of the USSR and Azerbaijan SSR Constitutions the abovementioned resolution violated clause 42 of the «Upper Garabagh Autonomous Region Act» which provided that the Deputies Council (Regional Council) of UGAR could adopt resolutions within authorities vested by the USSR and Azerbaijan SSR legislation. In addition, clause 42 stipulated for disaffirmation of any resolution adopted by the UGAR Regional Council in case of its discremency to the law ¹⁴.

In response, guided by the clause 87 of the USSR Constitution, clause 114 of Azerbaijan SSR Constitution and clause of the «Upper Garabagh Autonomous Region Act» the Supreme Council of Azerbaijan SSR declared the unilateral secession resolution adopted by the UGAR Regional Council dated 12.07.88 illegitimate as contradictory to the fundamental law.

The participants of the so-called “UGAR plenipotentiaries’ session” which took place on 16.08.89 refused to recognize Upper Garabagh as an autonomous region within azerbaijan and integral part of the republic. Concurrently they pronounced Upper Garabagh a sovereign territory of the USSR and out of Azerbaijan SSR jurisdiction. The “Session” founded a “National Council” which was pronounced the only public authority of the Upper Garabagh.

As expected, Azerbaijan’s did not keep waiting. Therefore, on 27.08.89 azerbaijan SSR Supreme Council Presidium declared the so-called “UGAR plenipotentiaries’ session” resolutions contra legem. It is clear that Armenian SSR was also active to validate the Upper Garabagh Armenians’ efforts to seize upper Garabagh from Azerbaijan. Along with the abovementioned resolution dated 20.02.88 armenia’s higher legislative body adopted a number of contra-constitutional resolutions which most notorious and absurd was the “Reunification of armenian SSR and Upper Garabagh Resolution” (what kind of “reunification” can be spoken about if Upper Garabagh had never been a part of Armenia?). In accordance with this resolution the Armenian SSR Supreme Council, Armenian SSR Council of Ministers and the UGAR National Council Presidium were entitled to take all subsequent measures with the purpose of real amalgamation of political, economic and other structures into unique system.

As mentioned above one of the crucial arguments of the Armenian side in favor of justification of annexation is that the Caucasian department of Central Committee of Russian Communist Party allegedly incorporated upper Garabagh into Azerbaijan in 1921. This is why Armenian SSR Supreme Council declared its non-recognition of “Caucasian department of Central Committee of Russian Communist Party resolution dated on 05.07.1921”.

Armenian officials’ present statements of non-participation in military actions against Azerbaijan cause ironical smile against the background of Armenia’s resolutions around Upper Garabagh implying attempts to validate annexation of a Soviet Republic in favor of another one and encouraging creation of unconstitutional formations on alien republic’s territory.

Of course, the arbitrary power was possessed by the USSR Supreme Council before Azerbaijan and Armenia gained independence and the Upper Garabagh situation was considered by international organizations. The ussr Supreme Council had repeatedly considered the conflict and adopted several resolutions.

All these resolutions including the two ones dated on 10.01.1990 and 03.03.1990 corroborated Azerbaijan sovereignty and territorial integrity declaring Armenia’s actions unconstitutional and illegal. These resolutions made by the USSR higher legislative body can be viewed as the beginning of Armenia’s complete isolation in the context of Upper Garabagh situation on the international scene.

The next attempt to legitimatize the fact of annexation of Azerbaijani lands was made by means of pronunciation of “Upper Garabagh Republic” (also called “nagorno-karabakh republic”) on 01.09.1991. The Armenian side is trying to prove legitimacy of this move referring to former USSR statute “On the Procedures of secession of the Soviet Republic from the USSR” dated 03.04.1990. this statute empowered the autonomous formations to solve the questions concerning their state-legal status on their own. The Armenian side is confident that “nkr” (“nagorno-karabakh republic”) establishment was blameless as it was not a part of Azerbaijan when the latter obtained recognition ¹⁵.

However, our simple analysis shows that the so-called “blamelessness” of these arguments gives raise to doubts in respect to constitutional justification. So, the statute “On the Procedures of Secession of a Soviet Republic from the USSR” was based on the clause 72 of the former USSR Constitution which provided that every Soviet Republic had the right to secede from the USSR. This statute was aimed at regulation of mutual relations within USSR by means of a certain procedure which should have been followed in case of secession from the USSR. Specifically, the resolution about secession should have been based on free will of population of a Soviet republic expressed by means of referendum to which procedure the great deal of the statute is dedicated. Principal concern is clause 3 of the statute which provided that referendum should be held in every autonomous formation of a Soviet Republic separately. At the same time the population of an autonomous region was entitled to solve whether to stay within the USSR or the emergent republic and raise the question of own legal status.

However, on account of abolition of the Soviet Union after well-known Belovezh convention the abovementioned statute had no operation as none of the Soviet Republics including Azerbaijan and Armenia had taken advantage of the secession procedure it provided. If only Azerbaijan had made an attempt to secede from the USSR before its downfall the Upper Garabagh would have had the right to hold a referendum in order to determine whether to stay within the USSR or Azerbaijan or to raise the question of own state-legal status.

References to the statute “On the Procedures of secession of the Soviet Republic from the USSR” in the context of “independent statehood Reestablishment Declaration” adopted by Azerbaijan SSR Supreme Council on 30.08.1991 do not stand against criticism. the declaration is about reestablishment of statehood of 1918-1920, not about secession from the USSR. it was evidently adopted without taking into account the abovementioned statute. Therefore, if follow the letter of law the adoption of reestablishment declaration could not be used by the Upper Garabagh autonomous Region as an argument to raise the question of own state-legal status in accordance with the statute. Moreover, this declaration did not entail any operations for the USSR as well. Thus, according to paragraph 2 of the USSR Supreme Council resolution “On Enactment of the statute “On the Procedures of secession of the Soviet Republic from the USSR”, ‘any actions connected with procedures of secession contradicting to the to the abovementioned statute do not entail any operation for the USSR or Soviet republics’.

It is impossible to ignore another essential detail when considering the matters connected with the statute “On the Procedures of secession of the Soviet Republic from the USSR”, especially reasons of its adoption. The necessity of such statute was evidently imposed by insistent appeals for secession of the republics from the USSR. Closer examination of the statute suggests an appropriate conclusion that the objective of the promoters was not to regulate the procedures of secession. On the contrary, the USSR government was trying to hinder the republics from execution of their right of secession provided by the clause 72 of the USSR Constitution. This is why it’s strange enough to hear allusions about this statute made by “democracy-mongers” who pretend to struggle for nations’ right of self-determination; in fact, this right was circumscribed. Moreover, according to R.Mullerson the tactics used by the Soviet Government with adoption of the disputable statute not only failed to obviate the problem of dissolution of the Soviet Union but aggravated the situation. It made national majorities regard the minor ethnic groups as protégés of Moscow ¹⁶.

Along with, Upper Garabagh autonomous Region was abolished as a national and territorial formation in accordance with Azerbaijan Republic statute dated on 26.11.1991. so, the Decree of Azerbaijan General Executive Committee “On Establishment of Upper Garabagh Autonomous Region” (dated 07.07.1923) and Azerbaijan SSR “Upper Garabagh Autonomous Region Statute” (dated on 16.06.1987) were declared ineffective. Remarkably this resolution was motivated by the fact that establishment of autonomy in Upper Garabagh in 1923 contributed to international dissention.

Thus, upper Garabagh de jure belongs to Azerbaijan as it had before our country obtained recognition. Armenian parliament resolved on 08.07.1992 that no documents (either domestic or international) mentioning Upper Garabagh as a part of Azerbaijan can be acceptable for Armenia. Yet, upper Garabagh is specified as Azerbaijani territory in international documents more often than official Yerevan was expecting at the time of adoption of this absurd resolution. This factor completely disperses all illusions that Upper Garabagh legal status would ever change not in favor of Azerbaijan.

Gaining of independence by Armenia and Azerbaijan and their concurrent participation at the OSCE conference on 30.01.1992 as well as joining the UNO on 02.03.1992 contemporized with a new stage of theoretical discussions by the sides. Nevertheless, the results do not completely satisfy the Armenian side and stultify azerbaijan’s hopes for favorable outcome at the same time.

Considering the resolutions by Security Council and OSCE concerning Upper Garabagh conflict through the prism of international legal norms and principles we may infer about absence of grounds to refer to the alleged problem of conflict between two principles; the territorial integrity and national self-determination principle. Anyhow, this case creates an impression that one of the principles is artificially obtruded upon another.

In the UN Charter the principle of nations’ equality and self-determination is mentioned twice. Thus, according to the paragraph 2 of the clause 1 one of the UNO purposes is development of amicable relations between the nations on basis of respect to the principle of nations’ equality and self-determination. In the UN Charter clause 55 the mentioned principle is regarded as a basis for international economic and social cooperation. A remarkable fact is that primordially the principle of nations’ equality and self-determination implied autonomy, not secession.

This principle received further development and broader interpretation with adoption of Declaration about accordance of independence to the colonial countries and nations dated on 14.12.1960 (Resolution 1514 [XV] of UN General Assembly). According the clause 2 of the Declaration “all nations have the right of self-determination which provides free determination of political status and realization of own economic and cultural development” ¹⁷. at the same time clause 6 of the Declaration contains an important circumscriptive position: “any effort aimed at partial or complete destruction of national and territorial integrity of a state is regarded as incompatible with purposes and principles of the UN Charter” ¹⁸.

Two pacts – “On Economic, Social and Cultural Rights” and “On Civil and Political Rights” were adopted in 1966. clauses #1 of each of them contain similar positions of self-determination rights as mentioned above: “every nation has the right of self-determination which provides free determination off political status and realization of own economic and cultural development” ¹⁹. introduction of this position to the most important international documents of obligatory character gave a stimulus to vivid debates in the course of which this collective right was regarded nearly as a basis for other human rights. This could not but influence on real political processes taking place in the world.

Next important stage on the heading to elaboration and interpretation of self-determination principle was adoption of the Declaration of International Legal Principles concerning amicable relations and cooperation of nations in accordance to UN Charter (UN General Assembly 2625 [XXV]). The part dedicated to the equality and self-determination principle provides that “all nations have the right of self-determination which provides free determination of political status and realization of own economic and cultural development and every nation is obliged to respect this right in accordance with UN Charter ” ²⁰.

Concurrently this part contained important circumscriptive positions. First, “…each nation must cooperate independently and with outer assistance on general respect and observance of human rights and fundamental freedoms in accordance with the UN Charter” ²¹. Second, this part gave brief but accurate citation of ways of such self-determination enjoyment as “1 - creation of sovereign and independent state, 2 - free accession to another independent state or unification with it, 3 – establishment of other status determined by the people” ²².

At last, third position of the Declaration confirmed prime requirement about repudiation from any actions leading to partial or complete destruction of territorial integrity of territorial integrity and political unity of sovereign nations. Moreover, it pointed out conditions under which self-determination right was limited due to possibility of violation of territorial integrity of any state. The most important of these conditions is “…availability of government representing the whole population regardless of racial, religious or ethnic distinction” ²³.

The Declaration and action program adopted in 1993 at the World Human rights Conference in Vienna corroborate self-determination right of nations on account of which they determine their political status and freely enjoy economic, social and cultural development. Reiterating essentially previous international legal sources concerning this matter the Viennese Declaration nevertheless contributes to determination of the self-determination right subject in paragraph 2 of the second clause: “Considering special state of the nations under colonial regime or any other forms of alien enslavement the World Human Rights Conference recognizes rights of these nations to take legal measures in accordance with the UN Charter in order to enjoy their integral right of self-determination. The World Human Rights Conference regards denial of self-determination right as violation of human rights” ²⁴.

Paragraph 3 of clause 2 of the Viennese Declaration reiterates an important circumscriptive position from the Declaration of International Law Principles according to which self-determination right should not be interpreted as permission and approval of actions leading to partial or complete destruction of territorial integrity and political unity of sovereign states who observe principles of equality and self-determination.

According to A.Eide, UNO Human Rights subcommittee the word “nation” in this case denotes whole population living on non-self-governing or occupied territory ²⁵. as A.Eide stressed in his report concerning peaceful and constructive settlement of ethnic minorities problems “divergence of opinion about the concept of ‘nation’ as a group of people to be given self-determination rights was broad enough before acceptance of the Viennese Declaration. The matter was even more complicated by numerous interpretations of the self-determination conception. Following notes can be done on interpreting the abovementioned Viennese Declaration position concerning ethnic groups residing on the territory of a sovereign state. Sovereign state ‘must have government representing the whole nation regardless of racial, religious or ethnic distinction’. The word ‘nation’ definitely denotes the whole population / demos, not separate ethnic or religious groups” ²⁶. On R.Mullerson’s opinion it would be incorrect to state (as it is usually done) that minorities do not have self-determination rights. It’s more reasonable to say minorities enjoy self-determination together with dominant ethnos as a part of population ²⁷.

Self-determination principle is also mentioned in the OSCE documents. Thus, Helsinki final act says: “The member states will observe equality off rights and peoples’ right to determine on their destiny, acting continuously within UN Charter provisions and existing international legal norms including those concerning territorial integrity.

Based upon equality and peoples’ right to determine on their destiny they are entitled to determine their domestic and foreign political status freely without interference from outside and enjoy their political, economic, social and cultural development. Member states confirm general significance of observation and effective realization of peoples’ equality of rights in order to assist to amicable relations among them. The member states also remember about significance of avoidance non-observation cases”.

However, based upon changed situation in the world and availability of military conflicts on their territory the member states stress territorial integrity in later documents concerning self-determination. Such approach is observed in paris new Europe Charter of 1990 and Moscow Conference documents. Paris Charter: “Member states confirm equal rights and self-determination right of peoples to determine on their destiny within international legal norms and UN Charter including those concerning territorial integrity”. In the document of Moscow Conference member states stressed that according to the OSCE and Paris New Europe Charter final acts equality of rights and self-determination principles should be observed in accordance with UN Charter and existing international legal norms including those concerning territorial integrity.

Therefore, according to the UNO definition self-determination principle does not include unilateral right of independence or secession unless on non-autonomous or unlawfully occupied territories. Along with, it should be stressed that self-determination right belongs to peoples residing on the territories subjected to occupation after the UN Charter had been enacted in 1945. touching upon subjects of self-determination right we should mention federations formed as a result of free-will unification of republics which constitutions provide the right of secession from the federation ²⁸. This is an important approach to consider the Upper Garabagh conflict which does not correspond to any of the mentioned criteria.

Nevertheless, in spite of these sufficiently clear circumscriptions within international legal norms it is impossible to admit that serious problems can emerge in two cases:

1.      refusal of pluralism caused by holding of strict and discriminating policy by a sovereign state towards national or ethnic minority residing on its territory.

2.      in this case minority encouraged by a parent country (in case with Armenian minority in Upper Garabagh the parent country was Armenia) refuses to recognize the authority of the sovereign republic even if presented all necessary conditions for development ²⁹.

There is a typical situation when one or another ethnic group living compactly in a certain geographic region or an enclave within a state claims being a nation/people but not minority and demands self-determination in the context of secession and change of frontier. In such a case these national or ethnic groups must prove they have the right to secede. If their claims cannot be proven incontestably to the world community the other states do not have any right to encourage the actions of ethnic minorities ³⁰.

Mentioned A.Eide points out that “…along with the dominant nation policy ethnic minority policy should be attended as well. Sometimes minor nations keep to even more vehement nationalism that the major nation and government. If they follow ethnic nationalism they will definitely claim for secession and carry out ethnic cleansings disposing of other ethnic elements, require to revision of frontiers in order to be joined to other state (usually parental)” ³¹. He continues: “Finding constructive solutions depends on all sides involved. There is a spread false opinion that only government and ethnic majority is responsible for the acute situation and that adaptation efforts should be made by this side. However,         superficial examination of the existing international climate shows there is a number of minor ethnic groups who keep to violent and provocative policy. They usually rely on development of large-scale military conflict with ethnic majority as a result of their provocative actions which would endanger their existence and cause support from outside be it ‘paternal state’ or any other formation. This is mostly dangerous.” ³².

It’s interesting that all the abovementioned resembles the Upper Garabagh situation with the only difference that Armenia’s position as a ‘parent state’ was crucial in military confrontation with Azerbaijan. Besides, Armenia does not admit any pluralism. Against the background of requiring independence for Armenians in Upper Garabagh with concurrent deportation of Azerbaijanis from Armenia and Upper Garabagh we can infer that the government of this country regards the possibility of self-determination in two aspects – ethnic cleansing and unilateral secession of Upper Garabagh.

Year 1992 was marked with adoption of UNO ethnic, religious and lingual minorities’ rights declaration which says: “…no point of the present Declaration should be understood as encouraging actions to violate purposes and principles of the UNO including those concerning principles of sovereign equality, territorial integrity and political independence of any of the states” [clause 8, paragraph 4] ³³.

According to the commentary of the declaration made by A.Eide, “…minorities’ rights are different than peoples’ rights of self-determination. While as self-determination is a right firmly established in accordance with international law its sphere of application and concepts of ‘people’ and ‘self-determination’ are still abstract and extremely controversial. This matter does not concern the Declaration of minorities’ rights as there is no collision regarding the fact that minorities’ rights are of individual category even if they can be enjoyed in common with the others. On the other hand, peoples’ rights are collective” ³⁴.

The question of differentiation between minorities’ rights and peoples’ self-determination right is advanced in the commentary to the paragraph 4 of clause 4 of the Declaration. The author stresses that “minorities’ rights cannot be the ground for demands of secession or partition of an administrative territory” ³⁵.

This problem is also attended in the UN Human Rights Committee’s common order admonition # 23 (50) issued in 11994. particularly, the Committee had drawn attention to the fact that “…some of the notes submitted to the Committee with in compliance with the optional protocol the right provided by clause 27 was confused with self-determination right declared in clause 1 of the pact”. In this connection the Committee members emphasized that “…the Pact shows difference between self-determination and individual rights provided by clause 27. Self-determination is a right depending to a whole nation/people considered in part I of the Pact. it is not the point of rights specified in the optional protocol. On the contrary, clause 27 concerning rights of individuals as such is specified in Part III as well as other clauses related to individual rights and is affected by the optional protocol” ³⁶.

Minorities’ obligations relative to the government and society were reflected in CIS National Minorities Rights Convention (1994) and frame Convention of CE for protection of national minorities (1995). According to the clause 12 of the CIS Convention no obligation by the contracting parties arising from present Convention should not be interpreted as reason for actions contradictory to the generally accepted principles and international legal norms including those concerning equality of rights, territorial integrity and political independence of the states.

Enjoying rights specified in present Convention each person belonging to national minorities will observe legislation of the country of citizenship as well as all other citizens’ rights and fundamental freedoms. Analogical stipulations are made in clause 20 of Council of Europe Convention. Next clause reads: “no provision arising from present frame Convention can be interpreted as the reason for any actions contradictory to generally accepted principles and international legal norms including those concerning equality of rights, territorial integrity and political independence of the states” ³⁸.

As for correlation between principles of territorial integrity and self-determination in the context of secession there is a firmly established opinion that the latter one is minor. Of course, this circumstance must be conditioned by observation of equality and self-determination as well as availability of government which defends interests of all citizens regardless of racial, religious or ethnic distinction.

Self-determination in the context of human rights is regarded in Recommendation of the Racial Discrimination liquidation Committee XX (48) adopted in 1996. Proclaiming obligation of each state to encourage observance of human rights and fundamental freedoms according to the UN Charter the Committee draws attention of governments to the Minorities’ Rights declaration ⁴⁰.

According to the Committee, “There are 2 aspects to be distinguished in the question of self-determination. This right has internal aspect i.e. peoples can freely determine their economic, social and cultural development without anybody’s interference. In this respect there is a connection with each citizen’s right to participate in the politics at any level as stipulated in clause 5c of the International Convention for Liquidation of Racial Discrimination. Therefore, the governments should represent the whole population regardless any distinction. External aspect of self-determination supposes every peoples’ right to determine their political status and role in the international life on basis of equality principle taking into account liberation of people from colonialism as well as prohibition to expose nations to foreign subjection and exploitation” ⁴¹.

Concurrently the Committee expressed its view that “International law disclaims peoples’ right of unilateral secession from a state” ⁴². cis independent lawyers’ Conference concerning self-determination and secession problems which took place in Moscow has made similar conclusion. It was emphasized that “Secession right should not necessarily be an element of se1lf-determination. It exists out of the frameworks of self-determination”. Moreover, the Conference participants categorically stated this right does not include national, ethnic, lingual and religious minorities as well as other population groups.

Yuri Reshetov, the member of the Committee for Liquidation of Racial Discrimination holds another opinion. He considers that “Establishment of a sovereign state by a national or ethnic group or its joining to another state may be the consequence of peaceful agreements between different national or ethnic groups only”. Further he wrote: “All these questions can be settled according to the constitutional and international legal norms and by means of corresponding procedures”. On his opinion, if the government observes rights and fundamental freedoms of its whole population regardless of religion, ethnic origin or race and enables them to participate in political life of the state then any attempts aimed at partition of the state and detriment of its territorial and political integrity will be regarded as illegitimate”. In summary both Y.Reshetov and the CIS independent lawyers Conference consider that a state established as a result of violation of peoples’ rights should not be regarded as a subject of international law (remember that Armenians are trying to establish a state in Upper Garabagh [‘Nagorno-karabakh republic’] where they committed ethnic cleansings of Azeris who were the autochthonic and major population).

The same was said by M.Mahmud who considers the regime not observing peoples’ right of self-determination is illegitimate and the formation it proclaims is not a state as deprived of any elements of law and legal territory on which a state should exercise its sovereignty. This is a spurious state ⁴³.

A question may rise: what if one or another group claims being discriminated by the government? As A.Eide considers, “If member of a group living within a state compactly or separately claim being discriminated by the government of the country they live in this claim can be considered at international level, within the framework of Human Rights Committee or in the Committee for Liquidation of Racial Discrimination. Discrimination in political rights because of ethnic origin is the subject of clause 5 of the Convention of Liquidation of Racial Discrimination. If the state is a member of the European Council the claim may also be considered within the framework of clause 14 of the European Convention for Human Rights as well as Protocol #1. in such cases the resolution implies discontinuance of discrimination, and provision of all necessary conditions for the aggrieved group to participate in the political life of the country.

The representatives of the aggrieved nation may have the right of independence only in case if they are able to forcibly prove absence of any perspectives of equality and self-determination. The evidence of genocide tendencies among the ethnic majority is a forcible argument in favor of secession. The only fact of ethnic collision can not be regarded as a proof of intention to exterminate the aggrieved nation. The majority’s responsibility for act of violence against the minor population should be substantiated”⁴⁴.

Nevertheless, it cannot be objected that due to the present absence of efficient international legal basis for consideration of claims by national and ethnic minorities the resolutions of Human Rights institutions may only be the way of affecting governments, not settlement of territorial conflicts. Undoubtedly, the above-mentioned international legal norms such as self-determination and minorities’ rights as well as correlation of these norms with the principle of territorial integrity were taken into account during consideration and making resolutions concerning Upper Garabagh problem.

It is necessary to note that Armenia would be the aggressor state any way whether her claims were groundless or not. Former Upper Garabagh Autonomous Region had no land frontier with Armenia as the area was surrounded by other areas (Lachin and Kelbadjar lay between Armenia and Upper Garabagh) not belonging to this region. Thus, in order to join Upper Garabagh Armenia annexed these areas as well.

Escalation of the military conflict provoked by Armenia caused its consideration at the UN Security Council which made four Resolutions: #822 (1993) dated on 30.41.93; #853 (1993) dated on 29.07.93; #874 (1993) dated on 14.10.93; and #884 (1993) dated on 12.11.93. all these Resolutions can be characterized as historically important from the viewpoint of their legal effect. The world community confirmed their respect to Azerbaijan’s sovereignty and territorial integrity taking into consideration the formula “Upper Garabagh region of Azerbaijan Republic”. The formula is annually reflected in Resolutions made by the OSCE which makes all previous and present disputes around belonging of Upper Garabagh as well as Armenians’ alleged right of secession absolutely nonsensical and.

It can be stated confidently that considering general recognition of Azerbaijan’s territorial integrity and unacceptability of forced annexation of Azerbaijani lands should be regarded as violation of the UN Charter. The normative legal support and the mechanism of present negotiation process within the abovementioned resolutions consist of corresponding decisions in the framework of the OSCE.

At the 1992 additional Helsinki conference the Foreign ministers of the OSCE member states expressed deep concern about escalation of the military conflict in Upper Garabagh and requested the Acting Chairman of the OSCE Council of Ministers to call a conference concerning this matter in minsk as soon as possible. The Conference took place under the aegis of the OSCE.

At the 1994 OSCE Summit in hungary, general adherence to the UN Security Council Resolutions was confirmed again. Concurrently the member states decided to intensify actions concerning Upper Garabagh conflict and entitled the Acting Chairmen of the Council of Ministers to appoint the co-chairmen of the Minsk Conference in order to establish common and coordinated basis for negotiation process as well as to provide absolute coordination of the mediatorial and negotiation activity. Heads of the states and governments announced their political readiness to grant the multinational OSCE forces to maintain peace after the opposite sides achieve agreement to cease the military actions. Most significant resolutions concerning applicability of the self-determination in the context of secession in case with Upper Garabagh settlement were reflected in Supplements I and II of the Lisbon document of 1996. these supplements contain the statement of OSCE Chairman and Armenian delegation’s response statement correspondingly.

The statement of the OSCE Acting Chairman read: “As everybody knows, there was no progress in settlement of the Upper Garabagh conflict and Azerbaijan’s territorial integrity is still being violated. Not without sorrow I have to state that all efforts taken by the Minsk Conference co-chairmen directed at reconciliation of the sides were not successful. The co-chairmen recommended three principles which are to be basic for settlement of the problem. All Minsk group member states endorse these principles which are as follows:

- Territorial integrity of Azerbaijan Republic;

- Legal status of Upper Garabagh determined in the agreement is based on self-determination principle which confers Upper Garabagh high autonomy within Azerbaijan.

- Territorial integrity of Armenia and Azerbaijan

- Guaranteed security for Upper Garabagh population, both Azerbaijanis and the Armenian minority.

Unfortunately, I have to state that none of the states agreed with these principles supported by other member states. This statement will be included in the documents of the Lisbon summit” [45].

Objecting the abovementioned principles in response, the Armenian delegation expressed conviction that the problem can only be solved on the basis of international legal principles reflected in the Helsinki Final Act of the OSCE and primarily on the basis of self-determination principle [46]. Thus, Armenia exhibited the fact that world community’s opinion is in conflict with her own comprehension and interpretation of international legal norms and principles. Armenia’s position expressed at the Lisbon summit which prevented settlement of Upper Garabagh conflict is not a single case of neglectful attitude towards world community. Two years before the Lisbon summit Armenia was the only state to reject the Declaration on Observation of territorial integrity and inviolability the CIS member states. At subscription of the CIS Memorandum on Maintenance of Peace and Stability in the CIS in 1995 Armenia recognized dormant items #7 and #8 of the Document read as follows:

“# 7. CIS member states will take all the necessary measures in order to suppress any manifestation of separatism, nationalism, chauvinism and fascism in accordance with national legislation and international legal norms.

#8. States undertake not to support or encourage separatist movements on the territories of other CIS states and not to establish political, economic or any other relations with them; separatist regimes will not be allowed to use territories or communications of the CIS states or enjoy economic, financial, military or other support”.

Armenia’s own method of interpretation of self-determination principle resulted in her submitting of a draft Declaration “on equality of rights and the right of nations to make arrangements concerning their own fate”. At closer examination of its contents the draft is evident to be aimed at the only problem which is Upper Garabagh conflict. Despite its preamble read: “Consecutive observation of equality of rights and right of nations to make arrangements concerning their fate enabled the states to integrate into CIS”, Armenian lawyers contradicted themselves in the enacting clause. So, they introduced provisions according to which “…any nation is able permitted to raise question of own self-determination even in the context of secession in order to join another CIS state or form a new independent state” and “…every state should undertake to prevent forceful actions of retention of a nation within itself”. There is another clause of the draft which also is beyond any comments: “Forceful retention of a nation within a state regardless of the nation’s wish (be it in official press, popular assembly or at referendums) is a violation of the UNO Charter principles”. In spite of several amendments made by the authors the draft was voted down by common consent of the CIS experts who met in Minsk for consideration of the draft by Armenia.

Upper Garabagh problem was also the subject of consideration in Council of Europe. Parliamentary assembly of the Council of Europe adopted resolution # 1119 (1997) “On Conflicts Transcaucasia” according to which Upper Garabagh conflict settlement should be a settled by means of negotiation taking into account principles of territorial integrity and autonomy for Armenian minority in this area of Azerbaijan.

Therefore, even if admit Armenian lawyers’ opinion that minor nation is permitted to secede in case it can prove government’s neglectful approach in its relation, we can draw a conclusion that Armenian side failed to convince world community in validity of own claims and prove Azerbaijani side is responsible for violation of international legal norms.

A natural question can rise: how can the conflict be solved? In order to answer this question one should understand that “…a state must play a part of common house for all nations regardless of their ethnic origin provided they all can enjoy self-determination and retain their originality. Neither major nor minor element can possess the right to determine itself by was leading to discrimination of neighboring element” [47].

Therefore, settlement of the conflict should be mainly based on strict observation of Azerbaijan’s territorial integrity and incentive of Armenian minority’s originality and self-determination. There are several opinions concerning ethnic groups’ right to have self government or autonomy within a state on the basis of self-determination principle. as it was mentioned, rights of persons who belong to national minorities are individual rights whereas nations’ right of self-determination is collective. Considering this principle, international law does not contain certain imperative provisions admitting right of self-government or autonomy for representatives of national/ethnic minorities.

However, some territorial partition in some cases may become a practical means to preserve originality of a national/ethnic group. Reasoning from this principle, Azerbaijani side has repeatedly expressed readiness to provide Armenians highest autonomy in upper Garabagh which was pointed out in the statement of OSCE acting chairman at Lisbon summit. International practice has many examples of territorial division agreements which could serve as a pattern for framing the status of Upper Garabagh. Naturally, it would be impossible to imitate any of the situations completely to solve the problem discussed. Nevertheless, we believe, in case of agreement with respect to the major point which is legal status of Upper Garabagh there will be no serious impediments on the way of retrieval to peace in the region. Obviously, any efforts to impose any methods of adjustment contradictory to the principle of Azerbaijan’s territorial integrity will protract settlement of the problem and preclude socio-economic well-being of the population; and this will cause the resumption of military actions.

To sum up the research dedicated to one of the most conflict situations in the world we can conclude that there can be adjustment of ethnic minorities’ problems in the context of formation of “ethnically cleansed” state or any other administrative area by a minority. An important provision to prevent such a menace must be consolidation of a state, not its dismemberment as well as strengthening of influence of international institutions with the purpose of common protection and encouragement of human rights.