CONSTITUTIONALIZING OCCUPATION: A CRITICAL ANALYSIS OF ARMENIAN CLAIMS TO AZERBAIJANI TERRITORY

CONSTITUTIONALIZING OCCUPATION: A CRITICAL ANALYSIS OF ARMENIAN CLAIMS TO AZERBAIJANI TERRITORY

Ramil Gachayev

• I. Introduction.

Through an analysis of official documents, this commentary aims to shed light on Armenia's role in legitimizing the occupation and its status as an aggressor. The investigation will use a range of primary sources, including the Armenian Constitution[1] and its declaration of independence, alongside pronouncements such as the Resolutions of the Supreme Council of the Armenian SSR and the National Council of Nagorno-Karabakh on December 1, 1989,[2] concerning the disputed ‘reunification.’ Additionally, the recent trilateral Statement by the leaders of Azerbaijan, Armenia, and Russia, dated November 10, 2020,[3] will be examined to understand the evolving legal landscape. This research will provide a legal framework for understanding the dispute and the international community's stance on the issue. The subsequent chapters dive into particular aspects, such as the legal standing of Azerbaijan and Karabakh, the Armenian constitution and the declaration of independence, Armenia's role as aggressor and occupier, and a concluding assessment.

• II. Legal status of Karabakh as integral part of Azerbaijan.

The legal status of Azerbaijan and the Nagorno-Karabakh region is firmly established within the framework of international law. A large corpus of treaties, resolutions, and statements unequivocally acknowledges Azerbaijan's territorial integrity, with Nagorno-Karabakh regarded as an integral component of its internationally recognized borders.  This recognition is enshrined in a range of legal acts, including the United Nations General Assembly Resolution 62/243 ‘The situation in the occupied territories of Azerbaijan’[4] and United Nations Security Council resolutions, namely 822,[5] 853,[6] 874,[7] and 884,[8] which affirm the territorial integrity of Azerbaijan. Additionally, the territorial integrity of Azerbaijan is further confirmed by significant normative acts such as the Parliamentary Assembly of the Council of Europe Resolution No. 1416,[9] the Charter of the United Nations,[10] the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (commonly known as the ‘Hartley-Feld Declaration’),[11] the Helsinki Final Act,[12] the Minsk Principles,[13] and the Statement of the President of the Russian Federation, the President of the Republic of Azerbaijan, and the Prime Minister of the Republic of Armenia dated November 10, 2020. These collective legal instruments provide a robust legal foundation for addressing certain aspects surrounding Karabakh and demonstrate the international community's commitment to upholding Azerbaijan’s territorial integrity.

• III. The Armenian Constitution and the Declaration of Independence: Aggression and Constitutionalization of Occupation.

The Armenian Constitution and the Declaration of Independence are foundational documents that establish Armenia as a sovereign state and outline its core principles. However, a closer examination of these documents reveals a potential tension. While they aspire to a unified Armenian state, they also reference principles of international law, including respect for territorial integrity. This tension becomes particularly evident when considering the situation surrounding the Karabakh region of Azerbaijan.

The preamble of the Armenian Constitution states:

The Armenian people — taking as a basis the fundamental principles of the Armenian Statehood and the nation-wide objectives enshrined in the Declaration on the Independence of Armenia, having fulfilled the sacred behest of its freedom-loving ancestors for the restoration of the sovereign state, committed to the strengthening and prosperity of the fatherland, with a view of ensuring the freedom of generations, general well-being and civic solidarity, assuring the allegiance to universal values — hereby adopt the Constitution of the Republic of Armenia.

Specific attention should be paid to the formulation, ‘The Armenian people — taking as a basis the fundamental principles of the Armenian Statehood and the nation-wide objectives enshrined in the Declaration on the Independence of Armenia.’ Remarkably noteworthy is the formulation that anchors the Armenian Constitution to the principles outlined in the Declaration on the Independence of Armenia.

The Supreme Council of the Armenian Soviet Socialist Republic

Expressing the united will of the Armenian people;

Aware of its historic responsibility for the destiny of the Armenian people engaged in the realization of the aspirations of all Armenians and the restoration of historical justice;

Proceeding from the principles of the Universal Declaration on Human Rights and the generally recognized norms of international law;

Exercising the right of nations to free self-determination;

Based on the December 1, 1989, joint decision of the Armenian SSR Supreme Council and the Artsakh National Council on the ‘Reunification of the Armenian SSR and the Mountainous Region of Karabakh;’

Developing the democratic traditions of the independent Republic of Armenia established on May 28, 1918.[14]

This passage explicitly refers to the joint decision made by the Armenian SSR Supreme Council and the Artsakh National Council regarding the ‘Reunification of the Armenian SSR and the Mountainous Region of Karabakh.’ Now, let’s see the introductory paragraphs of this joint decision:[15]

1. The Supreme Council of the Armenian SSR recognizes the fact of self-determination of the Nagorno-Karabakh Autonomous Oblast, confirmed by the decisions of the sessions of the regional Council of NKAO on February 20 and July 12, 1988, as well as the decisions of the Congress of People's Deputies of the region on August 16 and the session of the National Council on October 19, 1989.
2. The Supreme Council of the Armenian SSR recognizes the Congress of People's Deputies of Nagorno-Karabakh and its elected National Council as the sole legitimate authority currently operating in the region.
3. The Supreme Council of the Armenian SSR and the National Council of Nagorno-Karabakh declare the reunification of the Armenian SSR and Nagorno-Karabakh. The population of Nagorno-Karabakh is granted the rights of citizenship of the Armenian SSR.

The actions of the Armenian SSR Supreme Council raise concerns about Armenia's respect for international law. By officially seeking to incorporate Nagorno-Karabakh, a region within Azerbaijan, and fostering separatism there, Armenia encroaches on Azerbaijan's sovereignty and territorial integrity. This act directly contradicts the principle of preserving state borders enshrined in international law. Notably, this resolution was declared unconstitutional by the Presidium of the Supreme Council of the USSR on January 10, 1990,[16] despite lacking recognition from the international community. Nevertheless, the existence of this act signifies Armenia’s intent to solidify the occupation of foreign territories at a constitutional level. Furthermore, it is crucial to acknowledge that beyond Nagorno-Karabakh, Armenia has also occupied adjacent regions of Azerbaijan. This fact finds corroboration in the ‘Statement by the President of the Republic of Azerbaijan, the Prime Minister of the Republic of Armenia, and the President of the Russian Federation’ dated November 10, 2020. Within this statement, Armenia explicitly commits to returning the districts of Aghdam, Kalbajar, and Lachin to Azerbaijan. The act of returning previously annexed territories serves as unequivocal confirmation of Armenia’s aggressive actions and its involvement in the occupation of a neighbouring country. However, despite clear evidence and international condemnation, the international community's efforts have yet to compel Armenia to change its constitution, which some see as tacit endorsement of the occupation. This necessitates renewed international attention and support to address the issue. The occupation has had devastating consequences, causing widespread destruction of cities and villages, and forcibly displacing civilians from their ancestral lands.

• IV. Conclusion.

A closer examination of the legal aspects of the situation clearly establishes Armenia's role as an occupying force and aggressor. Of particular concern is Armenia's constitutional recognition of the annexation of territories belonging to a neighbouring state. This blatant violation of established international principles necessitates prompt intervention from the international community. Furthermore, it is imperative to undertake constitutional amendments and revise related legislation within Armenia to remove any ambiguities that could threaten Azerbaijan's sovereignty.  The international community should highlight the inconsistency of such actions with the civilized norms and principles upheld by the international community, both to Armenian society and its governing bodies.