THE Legal Aspect of Nagorno Karabakh's AND KOSOVO’S SELF-DETERMINATION

"If you do not stop campaigning for the unification of Nagorno Karabakh with Armenia, if you don't sober up, 100,000 Azeris from neighboring districts will break into your houses, torch your apartments, rape your women, and kill your children."

(Excerpt from an address of Mr. Hidayat Orujev, a leader of the Communist Party of Azerbaijan, to the Council of the Nagorno-Karabakh Autonomous Region, pronounced days before the massacre of Armenians in Azerbaijan's city of Sumgait, in late February 1988).

The cases of Kosovo and Nagorno Karabakh also differ due to the presence or absence of legislative acts by their respective federations, which stipulated the legal order of secession of autonomies from their union republics. In the case of Nagorno Karabakh, the legal acts of the Soviet Union in the pre-disintegration period played a key role in the political transformation of the status of the former Soviet autonomy in Karabakh. In 1990, the USSR Supreme Council adopted the "Law on the Resolution of Issues of Secession of Union Republics from the USSR" (later in the text — "Law on Secession").[1]

Following a violent two-year period marked by tension and uncertainty between Stepanakert and Baku, the issue of the resolution of Nagorno Karabakh’s political status reached a qualitatively new level in its development. The law gave the autonomous regions and republics within the Soviet Union an opportunity to actively participate in determining their political status as independent subjects of the Union, even including their secession from the union republics to which they were subordinated. This right was reserved for the case whereby a union republic appeals to secede from the USSR, while the autonomous entity or entities inside the union republic decline to remain a component of the seceding republic. In contrast to the Soviet Constitution, the Constitution of the Federal Republic of Yugoslavia did not contain any provisions or procedures of secession of its Republics and, moreover, autonomies from its Federation.[2]

The Azerbaijani Soviet Socialist Republic declared its intention to leave the Soviet Union as early as September 1989 with the adoption of both the Constitutional Law on Sovereignty and, later, the Constitutional Law on Independence.[3] By passing these laws, Azerbaijan has created a legal precedent for the Armenians of Nagorno Karabakh to exercise their legal right for self-determination through the above-mentioned federal Law on Secession. Following the failed August 1991 coup in Moscow, the Azerbaijani Republic unilaterally broke away from the Soviet Union, prior to the Soviet Union being officially disbanded in December 1991. Consequently, in the beginning of December 1991, the population of Nagorno Karabakh, after repeated but unsuccessful attempts to invite Azerbaijan to enter into negotiations, had no choice but to declare its independence both from the newly formerly Soviet Republic of Azerbaijan and the Soviet Union. This declaration of independence, as stipulated by the 1990 "Law on Secession," was preceded by a national referendum that was held according to the terms and norms of international law and with the presence of many international observers, including renowned human rights activists.[4]

Thus, as a result of an expressed constitutional will of their peoples, within the territory of the former Azerbaijani Soviet Socialist Republic, two independent and equal states were legally formed: the Republic of Azerbaijan and the Nagorno Karabakh Republic (NKR). With the collapse of the Soviet Union, the subordination of the authorities, population, and the territory of Nagorno Karabakh to the newly created Republic of Azerbaijan was formally suspended.

It is important to note that the disintegration of the Azerbaijani SSR into two entities was not the only possible outcome of the self-determination of the Azeri and Karabakhi peoples. Specifically, the cases of Tatarstan and Russia, and of Moldova and its Gagauz autonomy took a different direction, offering an alternative scenario of events in the post-Soviet period, with the former autonomous subject and the union republic negotiating a new mode of relations between them, while preserving the territorial integrity of the republic. Regrettably, that has never occurred between Nagorno Karabakh and Azerbaijan — neither in the very beginning of the conflict, nor after the secession of the former Azerbaijani Soviet Socialist Republic from the USSR. 

The opportunity for a constructive dialogue was missed and was never revived due to the staunch unwillingness of Azerbaijan’s authorities to talk to their Karabakhi counterparts. Moreover, placing hope on the overwhelming numerical superiority of its armed forces, Azerbaijan repeatedly tried to resolve its dispute with the Armenians of Nagorno Karabakh by intimidation, pogroms, and, eventually, ethnic cleansing in large-scale military operations. Yugoslavia's President Milosevic's attitude toward Kosovar Albanians was essentially the same.

The crucial legal and political specificity of the case of Nagorno Karabakh was that its independence was declared in accordance with the legal parameters of the Constitution of the USSR, which was legally binding on all union territories. When the Azerbaijani SSR collapsed, with the collapse of the USSR, and was transformed into two entities — Nagorno Karabakh Republic and the Republic of Azerbaijan — the Karabakh conflict transcended the conflicting principles of national self-determination vs. territorial integrity of states, as long as the former Azerbaijani SSR was concerned.

The opportunistic idea of some Azerbaijani politicians in Baku to "stretch" the current Azerbaijani Republic back to the borders of the long-demised Soviet Republic of Azerbaijan is comparable to the calls to restore the USSR or the former Federal Republic of Yugoslavia.

It is noteworthy that official Baku lost its control over Nagorno Karabakh three years before the Azerbaijani SSR broke away from the USSR. In other words, independent Azerbaijan never controlled Nagorno Karabakh. Moreover, Azerbaijan lays claims to Nagorno Karabakh in the same fashion that it harbors territorial claims to other neighboring countries, including Iran and the Russian autonomy of Dagestan.

The Armenians of Nagorno Karabakh, who, in contrast to Kosovar Albanians or the Azeris, with minor interruptions maintained their own political tradition through centuries — from the 10th province of Armenia Major, to the medieval Kingdom of Khachen, to the Five Duchies of the 18th century, to the Armenian Karabakhi self-government of 1918-1920, to the Nagorno-Karabakh Autonomous Region in Soviet times — effectively recreated their own state in 1991. The Kosovar Albanians, on their part, are still before a difficult task: they, together with their Yugoslav counterparts have yet to determine the mechanism of dealing with Kosovo's wish to secede from the Yugoslav Federation.