Analytical explanatory note to the Statement ''About the distortions of the
Alma-Ata Declaration and the consequences of legal arbitrariness''
The Republic of Artsakh (the Nagorno-Karabakh Republic (NKR), according to the decree of its President, ceases to exist on January 1, 2024. This was one of the main results of the three-year processes for the implementation of the truce conditions contained in the trilateral Statement of the leaders of Russia, Azerbaijan and Armenia (dated 09.11.2020) concluded after the aggression of Azerbaijan against the NKR and the Republic of Armenia (RA) in 2020.
1.The actions of Azerbaijan preceding this decree - the 280-day blockade of all transport communications connecting the NKR with the outside world, the large-scale military aggression on September 19, 2023, accompanied by violence, killings of civilians, including children and the elderly, and other acts of vandalism - indicate deliberate acts aimed at genocide by expelling Armenians who had been living in their native land for thousands of years. Even before the blockade imposed since December 2022, Azerbaijani President Ilham Aliyev said that Armenians are dogs that should be driven out of Nagorno-Karabakh, said Lawrence Martin, one of the lawyers defending Armenia's interests in the UN International Court of Justice. Today, almost the entire population has left the NKR.
2. The incident also characterizes the results of the negotiation processes that took place between the parties to the conflict on the Russian, American and Brussels platforms, and were accompanied by optimistic statements and calls for the protection of the rights and security of the Karabakh Armenians.
The UN Security Council, having considered at an emergency meeting the issue of the humanitarian catastrophe in Nagorno-Karabakh, limited itself to calls for restraint and respect for human rights addressed to the aggressor and his victim. The measures stipulated by the international obligations of the UN member states to prevent the Armenian Genocide of Karabakh were not applied against the criminal acts of Azerbaijan.
3. In order to "justify" such inaction, the texts and meaning of key concepts contained in international documents referred to by the leaders of states and the heads of their foreign policy departments pursuing their geopolitical goals were distorted.
Thus, at a press conference on European security issues on December 1, 2022, Russian Foreign Minister Sergey Lavrov, referring to the agreement signed in Prague on October 6, 2022 by the Armenian and Azerbaijani sides of the document, according to which the peace treaty should be based on the borders in accordance with the Alma-Ata Declaration of December 21, 1991, absolutely groundlessly stated that the Alma-Ata Declaration (hereinafter referred to as the Declaration) allegedly clearly defines the borders between the new states on the basis of the administrative borders of the union republics of the former Soviet Union, where Nagorno-Karabakh, the Karabakh Autonomous Region, is a part of the Azerbaijan SSR.”
The head of the European Council, Ch. Michel, being one of the inspirers of the Prague meeting, which became for Azerbaijan the "justification of the right" to the blockade of the NKR, which began on December 12, 2022, following the meeting in Brussels on May 14, 2023, contrary to the legal correctness required for an official, distorting the text of the Prague statement, announced that "the leaders confirmed their unconditional commitment to the Alma-Ata Declaration of 1991 and the territorial integrity of Armenia", and voiced the numbers not spelled out in any document having actual legal significance: Armenia - 29,800 sq. km and Azerbaijan - 86,600 sq. km.
In his message to the Independence Day of the Republic of Armenia" dated 09/24/2023, the Prime Minister of the Republic of Armenia N. Pashinyan, wishing to emphasize the importance of the Alma-Ata Declaration, contrary to historical events and flouting the provisions of legal normative documents on the formation of an independent state, the Republic of Armenia, stated: "The question is that the declaration and related documents are one of the main factors of Armenia's independence, which fixes the political and legal foundations of Armenia's independence. Calls to abandon this policy are calls to renounce independence, sovereignty and territorial integrity."
4. Let's consider whether the above statements of political leaders noted above correspond to the documents they refer to. At the same time, we note a very strange appeal only to the Declaration, whereas the principal document containing the provisions setting out their legal status is the Agreement "On the Establishment of the Commonwealth of Independent States" signed on 08.12.1991 by Russia, Ukraine and Belarus. The signatories of the Declaration essentially declared their consent to join the above-mentioned Agreement and the Protocol that is an integral part of it.
Let's turn to the text of the Declaration. To begin with, the signatory states are not the republics of the USSR, but, as explicitly stated in the text of these documents, they are the newly independent states. Here is an excerpt from the text: "Independent States - the Republic of Azerbaijan, the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Kyrgyzstan, the Republic of Moldova, the Russian Federation (RSFSR), the Republic of Tajikistan, Turkmenistan, the Republic of Uzbekistan and Ukraine ...". It should be noted that all the signatories of the declaration, except Russia, have designated their status without any indication of continuity with the former Union republics.
The same applies to the Agreement on the creation of the CIS. As one of the parties that signed the agreement and its protocol, Russia presented itself as a party to the Agreement as the RSFSR, thereby indicating its legal succession. The remaining parties to both the Agreement and the Protocol to the Agreement dated December 21, 1991, designated their status without any indication of continuity with the former Union republics. In a particular case of interest to us, both the Declaration and the Agreement were signed not by the Azerbaijan SSR, but by the newly formed Republic of Azerbaijan, which declared itself as the legal successor of the Azerbaijan Democratic Republic which existed in the 1918-1920's.
Recognition and respect for the territorial integrity of the States that signed the Declaration is associated in it with the inviolability of the borders existing at the time of signing the document, and not the administrative borders of the former Soviet Union republics, which are not mentioned at all in the Declaration. In the text of the Declaration, as well as in the Agreement on the Creation of the CIS, there are no numbers defining the territory of the states which signed these documents.
It is important to note that the use of the term "existing borders" and the absence of mentioning of the administrative borders of the former Soviet republics is due to the fact that by the time this declaration was signed the borders of some states that had already become independent as a result of the collapse of the USSR, neither de facto nor de jure, coincided with the administrative borders of the Union republics. The former intra-state administrative-territorial borders of a collapsed state (in this case, the USSR) could not by themselves be the legal basis for determining the interstate borders of the newly formed states. Indeed, by the end of 1991, Declarations of Independence were adopted in Abkhazia, South Ossetia, the Pridnestrovian Republic and the NKR.
However, on October 17, 2023, N. Pashinyan reiterated in the European Parliament that "this declaration contains the following two important facts in the context of the issue under discussion," one of which he called: "The republics recognize the territorial integrity, sovereignty of each other, the inviolability of existing, i.e. administrative borders, and, consequently, the existing administrative borders between the republics of the Soviet Union become state borders" https://www.primeminister.am/ru/statements-and-messages/item/2023/10/17/Nikol-Pashinyan-Speech/. But as mentioned above, there is no trace of anything like this about administrative boundaries, especially since they should become state boundaries!
5. The above is primarily related to the newly formed Republic of Azerbaijan. Azerbaijan seceded from the USSR with gross violations of the current legislation, de facto and de jure without the Nagorno-Karabakh Autonomous Region (NKAO). In the Soviet legal system, autonomies were a form of self-determination of the people and had a high level of legal subjectivity and sovereignty. Any issues related to its status and territory had to be resolved solely on the basis of the will of its population and in agreement with the autonomy. According to Article 13 of the USSR Law of April 3 , 1990 "On the procedure for resolving issues related to the withdrawal of the Union Republic from the USSR", the withdrawing republic is obliged to comply with the generally recognized principles and norms of international law, as well as human rights and freedoms enshrined in international treaties to which the USSR is a party.
But when Azerbaijan seceded from the USSR it made a decision to liquidate the NKAO, both Soviet and international legal norms were ignored. The Law of the USSR "On the procedure for resolving issues related to the Withdrawal of the Union Republic from the USSR" established in its Article 2 that "The peoples of autonomous republics and autonomous entities retain the right to independently resolve the issue of remaining either in the outgoing Union Republic or in the USSR, as well as to resolve the issue of their other state-legal status".
This gave the Nagorno-Karabakh Autonomous Region the right, according to the laws of the USSR, to independently dispose of its future fate. Relying on Article 3 of the above-mentioned Law of the USSR of April 3, 1990, the Council of People's Deputies of Nagorno-Karabakh and that of the Shahumyan district bordering it in the north, more than 90% of which was populated by Armenians, taking into account the complexity and inconsistency of the situation in the country, the uncertainty of the fate of the future Union, the union structures of power and management, proclaimed on September 2, 1991 the Declaration on the establishment of the "Nagorno-Karabakh Republic" within the borders of the Nagorno-Karabakh Autonomous Region and the adjacent Shahumyan district.
On December 10, 1991, after the adoption on December 8, 1991 and before the entry into force (12.12.1991) of the Agreement signed in Minsk on the establishment of the CIS, which signifies the beginning of the collapse of the USSR, the Nagorno-Karabakh Republic held a referendum on independence in the presence of international observers and the media. 82.2% of its eligible voters supported its sovereignty.
Consequently, it can be stated that neither de jure nor de facto Nagorno-Karabakh was and could not be recognized as an "integral part" of the newly proclaimed modern Republic of Azerbaijan (AR). Since the Republic of Azerbaijan did not recognize itself as the legal successor of the Azerbaijan SSR, moreover, it qualified Soviet Azerbaijan as an illegitimate state resulting from occupation/colonization by Russia, and since the NKR was neither de facto nor de jure located within the existing borders of the newly formed Republic of Azerbaijan, there is no reason to consider it as a part of the Republic of Azerbaijan.
It should be emphasized that the Republic of Azerbaijan did not just fail to recognize itself as the legal successor of the Azerbaijan SSR. By its Constitutional Act “On the Independence of the Azerbaijan Republics” dated October 16, 1991, it de jure issued a waiver of the succession of the Azerbaijan SSR. In this case, any appeal to the attributes of Soviet Azerbaijan, recognized as an illegitimate state, is legally null and void and, as such, is a means of political manipulation.
6. The Republic of Armenia, after signing the Alma-Ata Declaration, ratified the Agreement “On the Establishment of the Commonwealth of Independent States" with reservations. Paragraph 10 of the reservations reads: "The second paragraph of Article 13 of the Agreement after the words "open for accession by all member states of the former USSR" should be supplemented with the words: "including for the former autonomous entities of the USSR which before the adoption of the declaration "On the termination of the existence of the USSR" held a national referendum on the declaration of independence and on the basis of this the supreme executive body of the autonomous formation appealed to the Commonwealth of Independent States with a request for admission to its membership." That is, it is clearly indicated that Armenia's recognition of the territorial integrity of Azerbaijan does not apply to Nagorno-Karabakh.
7. The Republic of Azerbaijan joined the CIS on September 24, 1993, during the first Karabakh war, when it tried to resolve the Karabakh issue by military means. Having been defeated in the aggression unleashed in 1991, Azerbaijan in April 1994 signed the Bishkek Protocol, one of the parties to which was the NKR - along with the Republic of Armenia, the Council of the CIS Interparliamentary Assembly, the Parliament of the Republic of Kyrgyzstan and the Russian Federation represented by the Presidential Plenipotentiary Representative, Head of the mediation mission of Russia V. Kazimirov.
The signing of a document of such an international format by the NKR together with Azerbaijan and other parties is nothing more than a certain form of recognition of its international legal subjectivity. On May 12, 1994, Azerbaijan was also forced to sign an indefinite armistice agreement with the NKR.
Thus, it can be argued that the Alma-Ata Declaration of December 21, 1991 specifically used the wording “existing borders” in order to make it clear that these are not “the borders of the former Soviet republics,” but precisely those that exist at the time signing the declaration and, accordingly, the Agreement on the creation of the CIS.
The parties that signed these documents thereby recognized these existing borders, including Azerbaijan recognizing that neither Artsakh nor the so-called “enclaves” are located within the borders of the newly-founded Azerbaijani Republic.
8. It should be emphasized that the Alma-Ata Declaration lists the basic provisions on the basis of which the relations of the signatories - "democratic legal states" - will develop. According to the text of this document, the inalienable right of peoples to self-determination, renunciation of the use of force and threat of force, economic and any other methods of pressure, peaceful settlement of disputes, respect for human rights and freedoms, including the rights of national minorities, conscientious fulfillment of obligations and other universally recognized principles and norms of international law are postulated.
On May 14, 2023, in Brussels, Charles Michel "called on Azerbaijan, in close cooperation with the international community, to develop a positive agenda to ensure the rights and security of this population," adding that it is important to refrain from hostile rhetoric, act in good faith, and "show leadership to achieve mutually acceptable solutions." But the real agenda of Azerbaijan is no secret to anyone: the state program of seizing the territory of the NKR and ethnic cleansing of Armenians living there for millennia has been set and systematically implemented for a long time.
Starting in 2016, this policy, with the support of Turkey, began to be implemented in the form of large-scale armed aggression against the NKR and the Republic of Armenia, which led to tens of thousands of dead and wounded, including civilians. Another aggression against the NKR began on September 19, when Azerbaijani forces carried out a massive attack, including an air attack, on the territory of the NKR, cynically calling it an "anti-terrorist" operation.
This large-scale military aggression of Azerbaijan against the NKR, with numerous civilian casualties, tragically confirmed the assessment of the former Prosecutor of the International Criminal Court Luis Moreno Ocampo, who qualified the blockade of the NKR by Azerbaijan as "genocide" against ethnic Armenians through famine and predicted its continuation by more brutal methods.
9. Resolution 2625 of the UN General Assembly "Declaration on Principles of International Law concerning Friendly Relations and Cooperation between States" of October 24, 1970, in the section "The principle of equal rights and self-determination of peoples" clearly states: "Every State is obliged to refrain from any violent actions that deprive peoples of their right to self-determination, freedom and independence. In their measures against such violent actions and in resisting them, these peoples, in the exercise of their right to self-determination, if this people is threatened with severe humanitarian losses, direct destruction, have the right to seek support and receive it in accordance with the purposes and principles of the Charter."
10. However, there was no support, despite the fact that there is no definition of the territory of the modern Republic of Azerbaijan and its borders, including the NKR, in any international legal document.
Thus, with the help of the distortion of the Alma-Ata Declaration and with the complete inaction of the UN member states, the Security Council and other UN bodies, Azerbaijan, in violation of the principles of the UN Charter, once again carried out military aggression with impunity in order to end the Armenian Genocide of the NKR.
In the conditions of armed aggression, targeted bombing of settlements, killing of civilians, the use of other means of intimidation and under the threat of complete destruction of the entire civilian population, Azerbaijan demanded:
1) the disarmament of the Defense Army, followed by the forced exodus of the entire population, persecuted by the forceful actions of the Azerbaijani armed forces;
2) the self-dissolution and termination of the existence of the NKR by forcing the signing on September 21, 2023 by the President of the NKR of an unenforceable Decree on the termination by January 1, 2024 of the activities of all authorities of the NKR, thereby depriving the Armenian people of the NKR of the attributes of the right to self-determination realized by them in full compliance with international law.
11. An unprecedented phenomenon in modern international relations was the Statement of European leaders that did not comply with the requirements of the UN Charter and the norms of international law - President of the European Council Charles Michel, President of France E. Macron and Chancellor of Germany O. Scholz, as well as Prime Minister of Armenia N. Pashinyan of October 5, 2023, which completely ignored the right to self-determination the Armenians of Nagorno-Karabakh in their native land. The disregard of this legally binding right, the peremptory norm of international law jus cogens, which generates obligations erga omnes for the entire world community, is a vestige of the era of colonialism, a shameful page in European and world history.
Moreover, contrary to the assurances of commitment to the territorial integrity of Armenia, this statement carries a direct threat of dismemberment of Armenia under false demands to withdraw the so-called "enclaves" from the sovereign territory of Armenia and transfer them to Azerbaijan. The proof of this is the repeated voicing and publication of "magic" figures indicating the areas of the territories of Azerbaijan (86.6 sq. km) and Armenia (29.8 sq. km), according to which some territories of modern Armenia should also be considered an integral part of the AR. These territories were part of the Republic of Armenia, located within its existing borders, that is, they were recognized as the territory of Armenia by the Alma-Ata Declaration.
They are in strategically important positions controlling communications connecting the middle part of the Republic of Armenia with its northern and southern regions. The transfer of them to Azerbaijan threatens Armenia with the most serious danger of blocking these communications, the loss of sovereignty over the Syunik region, to which Aliyev does not hide his claims, calling it "Western Azerbaijan". N. Pashinyan, as the head of state, can make statements only for the purpose of announcing his intentions, positions or opinions. But the author of any declaration must have the right to do so, there must be legitimate grounds to presume that he has such powers. N. Pashinyan does not have such rights on issues of territories and borders of the Republic of Armenia. According to Article 205 of the Constitution of the Republic of Armenia, the issue of changing the territory of the country is decided exclusively by a referendum. The same applies to the territory of the NKR, especially since even in the Azerbaijani SSR, the broad autonomy of Nagorno-Karabakh, populated mainly by Armenians, was considered an indispensable condition for the region to remain "within its borders."
12. Statements that have no legal basis, distorting the provisions of the Alma-Ata Declaration and the Agreement on the Establishment of the CIS, have become a "legal" cover for illegal actions to eliminate the NKR through armed aggression and persecution of representatives of its military and political leadership as "terrorists". Having arrested a major businessman and philanthropist, former NKR State Minister Ruben Vardanyan for providing financial assistance to the NKR, qualifying it as "financing of terrorism", the Azerbaijani authorities have created a precedent according to which any financial assistance to the people of the NKR can also be qualified. For example, US financial assistance to Nagorno-Karabakh, which the representative of the US State Department in Congress, John Heffern, estimated in 2017 at $ 45 million. This assistance was provided in compliance with the laws passed for this purpose by Congress, approved and implemented by the US executive branch.
In this case, is Azerbaijan considering the possibility of recognizing the United States as a state financing terrorism? Or the possibility of criminal prosecution of members of Congress and representatives of the US authorities, through whose efforts this assistance was provided? The tone of Ilham Aliyev's accusations against European parliamentarians and French President E. Macron for supporting Karabakh Armenians makes us think about this.
13. American, European and Russian leaders, political structures, without giving a proper reaction and without taking effective measures against the aggressive illegal policy of Azerbaijan, whether they want it or not, assist Azerbaijan in justifying its "right" to the territories of the Republic of Armenia that have already been seized and are still subject to seizure, according to the announced plans. We remind you that at the time of signing the Declaration and the Agreement (21.12.1991), there were no so-called "enclaves" on the territory of the Republic of Armenia. These territories in different years were transferred to the administrative management of the adjacent district centers of the Azerbaijan SSR on the basis of administrative and economic expediency and were parts of a single and indivisible territory of the USSR.
With the termination of the existence of the Azerbaijani SSR, the issue of the so-called "enclaves" was completely closed, bearing in mind also that Soviet Azerbaijan did not have a successor. So, according to the legal logic and the texts of the Declaration and the Agreement, these territories were located at the time of signing within the existing borders of the Republic of Armenia, and already in January 1990, families of forcibly displaced Armenians who escaped from pogroms and massacres in Sumgait, Baku and other Armenian-populated areas of the Azerbaijani SSR lived there.
14. The numbers cited in the above-mentioned Statement, as well as appeals to the Alma-Ata Declaration introduced into political circulation, should not be based on an arbitrary interpretation and distortion of the spirit and letter of the latter, but on valid legal grounds.
We appeal to international organizations, public, political, legal institutions, organizations dealing with the protection of human rights, political and public figures, and the expert community to raise their voice against political manipulation, which must be immediately identified at all levels and suppressed in order to prevent legal arbitrariness and its disastrous consequences. We would also like to hear whether they are ready to give an adequate political assessment and take effective measures in support of the Armenians who have been subjected to aggression and genocide.
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