Commentary on the misinterpretations and manipulations of the Alma-Ata Declaration of 1991 and their consequences.

In recent years, the Prime Minister of Armenia Nikol Pashinyan has constantly referred to the Alma-Ata Declaration of 1991 (hereinafter referred to as the Declaration) as the basis for determining the borders of the sovereign territories of the newly formed post-Soviet independent republics, including Armenia and Azerbaijan, distorting its text and content by asserting that the newly independent states that signed this Declaration recognize their territorial integrity within the former administrative borders of the union republics of the USSR, which become state borders.

A detailed analysis of these distortions, often for the purpose of political manipulation, is set out in the Statement of a group of international experts and in an analytical note to it https://shorturl.at/8K5gS . However, even today, some politicians and diplomats do not always have a proper understanding of some issues related to the Alma-Ata Declaration

Therefore, we consider it necessary to return to this issue once again.

1. In international law, there are various grounds for extending the sovereignty of a state to a certain territory. An international treaty, or agreement, may be a formally concluded document that is created as a result of agreement on specific issues and the coordination of rules and norms on a certain topic between two or more states or international organizations. The treaty is legally binding on the parties and creates rights and obligations that must be fulfilled in accordance with its provisions. Not all declarations can have this status. Declarations can be an expression of the political will of states and intentions on certain issues, intentions, agreement with certain principles, values ​​and provisions, as well as a statement of accession to an international treaty.

2. In our case, the main legal document that gives valid legal status to the provisions set out therein is the Agreement "On the Establishment of the Commonwealth of Independent States" (hereinafter referred to as the Agreement), signed on 08.12.1991. The Declaration confirmed the Agreement on the Establishment of the CIS, stating that with the formation of the CIS, the USSR ceased to exist. Even if we consider the Alma-Ata Declaration as an international treaty, its main purpose and meaning lie in the agreement on consent to the provisions of the Agreement and accession to it, which is what the parties that signed the Declaration subsequently did.

3. The Declaration, as well as the Agreement, do not contain any definition of the signatory states, except for the Russian Federation, as the legal successors of the former Soviet republics. Four months before the Alma-Ata Declaration, on August 30, 1991, the Supreme Council of Azerbaijan adopted the Declaration "On the Restoration of the State Independence of the Azerbaijan Republic"(18.10.1991) , which terminated the legal subjectivity of the Azerbaijan SSR.

The Declaration and the Agreement were signed by the newly formed Azerbaijan Republic (hereinafter-AR), which declared itself the Constitutional Act of Independence of the Republic of Azerbaijan (18.10.1991), the legal successor not of the Azerbaijan SSR, but of the Azerbaijan Democratic Republic of 1918-1920s, which was not unrecognized by the League of Nations, and to which Nagorno-Karabakh and many other Armenian lands were not included.

4. Neither the Agreement nor the Declaration says a word about the administrative borders of the former Soviet republics. This 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. Recognition and respect for the territorial integrity of the states that signed the Declaration is linked to the inviolability of the borders that existed at the time of signing the document, so that it is clear that these are not the "borders of the former Soviet republics". Since the AR did not recognize itself as the legal successor of the Azerbaijan SSR, moreover, it considered Soviet Azerbaijan an illegitimate state that was the result of colonization by Russia, and since the NKR was not included in the existing borders of the newly formed AR, neither de facto nor de jure, there is no reason to include it in the "existing borders" of Azerbaijan.

5. At the same time, the RA, like some other post-Soviet republics, did not renounce the succession, recognized the borders of the Armenian SSR, moreover, both de jure and de facto possessed them. This means that the RA has the right to believe that when signing the above documents, their participants recognized the legal basis for these borders.

Understanding the fragility of appealing to the Alma-Ata Declaration, the authorities of Azerbaijan are not in a hurry to join the constant appeals to it by today's Armenian authorities and representatives of some states involved in the negotiation process as a legitimate basis for defining their territory. As such a basis, Azerbaijani authors and others like them groundlessly try to refer to the principle of uti possidetis, meaning "possess what you currently have", distorting its interpretation.

But, firstly, when Azerbaijan left the USSR, it did not own these territories.

Secondly, attempts to unreasonably and by default apply to the Alma-Ata Declaration the legal provisions that have developed in international practice, meaning that new states, being colonies and having gained independence, have the same territory and with the same borders that they had in the metropolis, which had these colonies, are deprived of legal grounds.

It cannot be applied to the Soviet Union, which had a complex and multi-level state structure from which the union republics emerged. The USSR did not consist of colonies, but was a union of state entities of various levels, union and autonomous republics, autonomous territories and regions. Colonies could not be such entities.

T he USSR Law "On the Delimitation of Powers between the USSR and the Subjects of the Federation" of April 26, 1990 established that "Autonomous republics and autonomous entities are part of the Union republics on the basis of free self-determination of peoples and have full state power on their territory. The relations of the autonomies with the Union republics are determined by agreements and treaties concluded within the framework of the constitutions and the said Law.

Broad autonomy was considered a mandatory condition sine qua non, for example, for the presence of the Nagorno-Karabakh Autonomous Region "within the borders" of the Azerbaijan SSR. However, the Azerbaijan SSR seceded from the USSR with gross violations of the requirements of the Law of April 3, 1990 "On the procedure for resolving issues related to the withdrawal of a union republic from the USSR". Article 2 of this law established that "the decision on the withdrawal of a union republic from the USSR is made by the free expression of the will of the peoples of the union republic through a referendum (popular vote)". And Article 3 determined that in a union republic that has autonomous republics, autonomous regions and autonomous districts, a referendum is held separately for each autonomy. The peoples of the autonomous republics and autonomous entities retained the right to independently decide on their status when union republics seceded from the USSR, including as an independent state entity. The Azerbaijan SSR left the USSR and declared its independence in the form of a new independent state entity with gross violations of the aforementioned laws. According to the principle of ex injuria non oritur jus, illegal actions could not serve as a source of rights for the newly formed AR. At the same time, the Nagorno-Karabakh Autonomous Region, having declared its

independence on September 2, 1991, held a referendum on independence on December 10, 1991 on territory that did not belong to Azerbaijan even before the signing of the Alma-Ata Declaration, using the right given to it by the above-mentioned laws of the USSR and international law, the UN Charter, to independently decide on its future. Determination of the status is the exclusive right of the people of Artsakh. It did not violate the general principles of international law, which does not contain a "prohibition on the declaration of independence."

It should be noted that there are no norms in international law that oblige a self-determining state to obtain the consent of the metropolis from which it is separating. In the opinion of the International Court of Justice of the United Nations of July 22, 2010, it was recorded: "84. For the reasons stated, the International Court considers that general international law does not contain any prohibition on the declaration of independence." 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.

It should also be noted that after signing the Alma-Ata Declaration, the Republic of Armenia ratified the Agreement on the Establishment of the Commonwealth of Independent States with ten reservations. Point 10 of the reservations clearly states that Armenia's recognition of the territorial integrity of Azerbaijan does not extend to Nagorno-Karabakh. It can also be noted that by signing the Declaration and the Agreement, Azerbaijan de jure recognized that neither Artsakh nor other Armenian territories are part of independent Azerbaijan. Summing up this issue, it can be stated that two independent states left the USSR almost simultaneously - Azerbaijan with violations of the law and without the territory of the NKR, and the NKR itself - with compliance with the requirements of the law and de facto owning its territory. This fact is also noted in the resolution of the European Parliament of March 11, 1999 "On supporting the peace process in the Caucasus". It stated that "in September 1991, the NKAO declared its independence after the collapse of the USSR and following the adoption of similar declarations by the former Union Republics." Thus, the international legal validity of the declaration of independence of the Nagorno-Karabakh Republic, similar to other union republics, was noted. It should be emphasized that any treaty transferring the NKR to Azerbaijan is legally null and void in accordance with international law, including the UN Charter. The right of peoples to self-determination is legally imperative, the obligatory nature of the norm of jus cogens, gives rise to obligations erga omnes. It stands hierarchically above other norms of international law.

As for the mutual recognition of territorial integrity and the definition of borders between the Republic of Armenia and the Republic of Azerbaijan, it should be established on the basis of treaties between neighboring states. According to such an agreement, the borders of the former Armenian and Azerbaijan Soviet Republics can be recognized as state borders. But the attempt to present the territory of the NKR as part of the sovereign territory of the Republic of Azerbaijan is devoid of legal grounds and references to the Alma-Ata Declaration for these purposes are legally untenable. The same applies to the so-called "enclaves" and other sovereign territories of the Republic of Armenia. There is not a single full-fledged legal act, it is impossible to find mention of enclaves either in the Constitution of the USSR, or in the constitutions of the Soviet republics, or in any other Soviet legal documents. Talking about some "enclaves" is either evidence of legal illiteracy, or, more likely, about attempts at manipulation for political purposes, in particular, the legal justification for the annexation of the territory of the NKR.  

Thus, it can be stated with complete certainty that appeals to the documents adopted in December 1991, during the period of the cessation of the existence of the USSR as a geopolitical reality, on the creation of the Commonwealth of Independent States (Declaration and Agreement), with the aim of proving the presence of the Nagorno-Karabakh Republic, as well as a number of sovereign territories of the Republic of Armenia in the territorial composition of the modern Azerbaijan Republic, are devoid of any legal basis.

Moreover, attempts to use the Alma-Ata Declaration as the legal basis for peaceful coexistence between Armenia and Azerbaijan by attributing to it provisions that it does not contain is building relations between these states on a shaky foundation, allowing for various manipulations that are fraught with serious negative consequences in the future. International relations and their legal component should not be a sphere for political arbitrariness.

Mihran Shahzadeyan, PhD, Chairman of the Board of the Armenian Association of Political

Scientists

Larisa Alaverdyan, the first Human Rights Defender of the Republic of Armenia, Executive

  Director of the NGO "Against Legal Arbitrariness"

Gevorg Danielyan, Doctor of Law, former Minister of Justice of Armenia

Aram Sargsyan, Co-Chairman of the Socio-Political Movement "Miasin" (Together),

Alexander Manasyan, Doctor of Philosophy, Corresponding Member of the National Academy of Sciences of the Republic of Armenia, Co-Chairman of the Armenian Association of Political Scientists

Atom Mkhitaryan, PhD, Dean of the International Scientific-Educational Center of the National Academy of Sciences of Armenia, Co-Chairman of the Armenian Association of Political Scientists

Ruben Zargaryan, PhD, Envoy Extraordinary and Plenipotentiary

Levon Stepanyan, major-general, Head of the Main Department of State Border Protection,

Commander of the RA Border Troops (1993-2003)

Khachatur Marozyan, Chairman of the Board of the International Association of Lawyers and

Psychologists

Vahan Babakhanyan, Chairman of the ''Public organization of sociological and political science initiatives “Crossroad”, Saint Petersburg .

Vahram Kaghramanyan, retired prosecutor, Nagorno-Karabakh Republic.