"ON THE CREATION OF THE COMMONWEALTH OF INDEPENDENT STATES"
Author: Mihran Shahzadeyan
Ph.D., Political Scientist
At a press conference on European security issues on December 1, 2022 Russian Foreign Minister Sergey Lavrov said that at the forum of the European Political Community in Prague the Armenian and Azerbaijani sides signed a document stating that the peace treaty should be based on borders in accordance with the UN Charter and the Alma-Ata Declaration of December 21, 1991. It clearly states that the borders between the new states will be based on the administrative borders between the union republics of the former Soviet Union, where the Nagorno-Karabakh Autonomous Region is clearly part of the Azerbaijan SSR.
Let us turn, however, to the Alma-Ata Declaration of December 21, 1991
1. The signatories of the Declaration are not the republics of the USSR, but, as explicitly stated in the text of the declaration, independent states. Here is an excerpt from the text of the Declaration: “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…”;
2. The Declaration does not define these States except for the Russian Federation as the legal successors of the former Soviet Republics;
3. In the second paragraph of the Declaration, one of the basic provisions postulates the inalienable right to self-determination, renunciation of the use of force and the 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 implementation of obligations and other generally recognized principles and norms of international law;
4. Recognition and respect for the territorial integrity of the signatory States is linked to the inviolability of existing borders but not the administrative borders between the republics of the former Soviet Union.
Comments to Agreement of December 8, 1991
" ON the ESTABLISHMENT of THE COMMONWEALTH OF INDEPENDENT STATES»
Leaving aside the legal assessment of the Agreement, as well as the fact that many of its points have remained on paper, we note the following.
1. Among the signatories of the agreement and its protocol, the Russian Federation presented itself as a party to the Agreement as the RSFSR, thereby designating itself as the legal successor of the RSFSR. The agreement was ratified by the Supreme Soviet of the RSFSR. 12.12.1991 (No. 2014-I). The remaining parties, both to the Agreement and to the Protocol to the Agreement of 21.12.1991, indicated their status without any indication of continuity with the former union republics. In the specific case that interests us, the treaty was signed not by the Azerbaijan SSR, but by the newly formed Republic of Azerbaijan-the legal successor of the Republic of Azerbaijan of the 1918-1920s.
2. As in the Alma-Ata Declaration, the Agreement declares the intention to "develop their relations on the basis of mutual recognition and respect for State sovereignty, the inalienable right to self-determination, the principles of equality and non-interference in internal affairs, non-use of force, economic or any other methods of pressure, settlement of disputes by conciliation, other generally recognized principles and norms of international law".
3. Recognition and respect for each other's territorial integrity and inviolability of borders is indicated in the wording "existing borders", that is, the borders existing at the time of signing the document. It could not be otherwise, since the former intrastate administrative-territorial borders of the collapsed state (in this case, the USSR) could not be the legal basis for determining the interstate borders of the newly formed states.
Based on the above, it can be stated that any references to the above Declaration and Agreement for the purpose of legal justification of the territorial integrity of the Republic of Azerbaijan within the borders of the Azerbaijan SSR are untenable for the following reasons:
1. The Republic of Azerbaijan not only did not recognize itself as the legal successor of the Azerbaijan SSR, but de jure issued a waiver of legal succession;
2. As an independent newly formed State, at the time of signing, it had no border agreements with neighboring States;
3. The Nagorno-Karabakh Republic was not de facto part of the Republic of Azerbaijan. The Azerbaijani SSR, upon secession from the USSR, according to the legislation then in force, was obliged to hold a referendum in the Nagorno-Karabakh autonomy and in administrative regions with a predominant number of the Armenian population, as a result of which they had the right to legally secede from this Soviet republic, which they took advantage of ;
4. Both in the Agreement and in the Declaration there are no references to the recognition of the borders of the independent states that signed them within the administrative borders of the former Soviet republics. According to the text of these documents, only in relation to Russia such a claim can have a legal justification, since it has positioned itself as the RSFSR. The legal content of the definition "existing borders" cannot be considered identical or equivalent to the definition of "borders of the union republics", since they refer to different subjects. This is especially true of Azerbaijan, in relation to which this formulation has a different scope and content. Since the Republic of Azerbaijan did not recognize itself as the legal successor of the Azerbaijan SSR, moreover, it considered Soviet Azerbaijan an illegitimate state resulting from colonization by Russia, and since the NKR was neither de facto nor de jure within the existing borders of the newly formed Republic of Azerbaijan, there is no reason to include it in the "existing borders" of Azerbaijan.
5. At the same time, the Republic of Armenia, like some other post-Soviet republics, did not renounce succession, recognized the borders of the Armenian SSR, moreover, both de jure and de facto possessed them.
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