On the failure of Azerbaijan’s claims to the sovereign territories of Armenia: the legal nullity of applying the concept of “enclave” to them.

The territory of a state and its borders are determined by international and domestic legal acts.

The territory of a state is under its sovereignty and is limited by the state border. Both the territory and its borders are determined by international and domestic legal acts, Including the conclusion of border treaties with neighboring states, peace treaties after the end of armed conflicts. The legal acts of a national level, and not certain maps and articles in encyclopedias, are the basis for determining borders. On their basis, delimitation and demarcation of borders are carried out and maps are drawn up.

It is precisely legal acts that should be the main arguments in the negotiation process between Armenia and Azerbaijan on this issue. We wrote about the legal grounds for extending state sovereignty to a certain territory on the website of the Armenian Association of Political Scientists https://shorturl.at/sFoxt.

Based on the above, let us turn to the issue of the so-called "enclaves"and other sovereign territories of Armenia.

First. To talk about some "enclaves" that allegedly exist in the Soviet Union is a misunderstanding, they never existed there. There is not a single document about any enclaves, not a single legal act.

The transfer of territory from one union republic to another one, especially as some "enclaves", could not be carried out bypassing the union center. The first two all-union Constitutions of the USSR, those of 1924 and 1936, limited the sovereignty of the union republics to the limits of competence of the USSR (Article 3 of the USSR Constitution of 1924 and Article 15 of the USSR Constitution of 1936).

In accordance with Article 78 of the 1977 Constitution of the USSR, changing of the territory of a union republic, although it could not be changed without its consent, could enter into force only after its approval by the USSR. That is, issues of changing the borders of the union republics and their territories remained under the jurisdiction of the USSR. The Supreme Soviet of the USSR exercised general leadership in the area of administrative-territorial changes in the USSR. Without resolutions of this body, any decisions on these issues could not be considered legal and legitimate. And we were unable to find such legal acts on the "enclaves". This situation was due to the fact that the republics were national-state entities and the inviolability of their territory was guaranteed by the USSR. Changing the republican borders was considered an extremely complex political issue, requiring that many circumstances had to be taken into account when resolving it, and first of all, the interests of the union republics themselves. Keeping these issues under the jurisdiction of the USSR served as a reliable guarantee of the complete equality of all nations and peoples inhabiting the territory of the USSR.

In addition, the peculiarity of the territory of a union republic, which is a subject of a union state, is that its territory makes simultaneously part of the territory of the Soviet Union state and, in addition to the authority of the union republic itself, the authority of the union state also operates on its territory. This follows from the fact that the union republic belongs to the USSR, of which it is an equal member. Since the territory of a union republic is an integral part of the territory of the USSR, the issue of changing the borders of its territory is decided jointly by the USSR and the union republic. Yes, there were autonomous republics, autonomous regions, territories or districts, but you will not find any mention of enclaves anywhere, neither in the constitution of the USSR, nor in the constitutions of the Soviet republics, nor in any other Soviet legal document. Therefore, to speak, for example, of Tigranashen as an "enclave" is either evidence of legal illiteracy, or, more likely, of attempts to manipulate for political purposes.

According to the Resolution of the Council of Ministers of the USSR of 16.10.1979 N 940, by decisions of the councils of ministers of the relevant Union Republics, the transfer of enterprises, associations, organizations, institutions, buildings and structures of one Union Republic to state bodies of another Union Republic could be carried out. But this did not mean that the territories on which these institutions, buildings and structures were located were also transferred to another republic. Likewise, if departmental, administrative management of certain territories (districts, settlements, other administrative units) from one local government body, as in the case of the aforementioned "enclaves", was transferred to departmental or administrative bodies of other republics, this also did not mean a transfer of territories. As indicated above, the transfer of territories could be carried out only in accordance with legal acts approved at the Union level.

Secondly. The current authorities are trying to justify the attempt to present the so-called "enclaves" and other sovereign territories of the Republic of Armenia as territories of Azerbaijan by referring to the Alma-Ata Declaration of 21.12.1991, presenting it as a legitimate basis for defining the sovereign territory of the Republic of Armenia and for delimiting and demarcating borders. They claim that, allegedly, according to the Alma-Ata Declaration, the administrative borders of the Soviet republics are recognized as the borders of newly independent states. However, there is not a single word about this in the declaration. Moreover, in the declaration, the parties recognize the borders that existed at the time of signing, and as it is known, neither Artsakh nor any territories of the Republic of Armenia were part of Azerbaijan.

Furthermore, this declaration cannot be the only legal basis for defining territories and borders. Its legal significance lies in the fact that the parties declared their accession to the Agreement on the Creation of the CIS, concluded two weeks earlier. After signing the Alma-Ata Declaration, the Republic of Armenia ratified the Agreement "On the Creation of the Commonwealth of Independent States" with reservations. Clause 10 of the reservations states: "The second paragraph of Article 13 of the Agreement after the words "open for accession by all member states of the former USSR" shall be supplemented with the words: "including for the former autonomous entities of the USSR, which, prior to the adoption of the declaration "On the termination of the existence of the USSR", held a nationwide referendum on the proclamation of independence and, on the basis of this, the supreme executive body of the autonomous entity appealed to the Commonwealth of Independent States with a request to be admitted to it." That is, it is clearly indicated that Armenia's recognition of the territorial integrity of Azerbaijan does not extend to Nagorno-Karabakh. But this Agreement is not mentioned by the current authorities of the Republic of Armenia, probably because it was ratified by Armenia and its distortion is a gross violation of the law.

It can also be noted that by signing the said documents, Azerbaijan de jure recognized that neither Artsakh nor other Armenian territories make part of independent Azerbaijan. Therefore, its authorities, unlike the Armenian ones, generally try to avoid mentioning these documents.

Thirdly. Azerbaijani lawyers, understanding the fragility of Azerbaijan's territorial claims, are trying to justify them by referring to the principle of international law known as uti possidetis, meaning possess what you currently have. But, firstly, Azerbaijan did not possess these territories when it left the USSR. Secondly, this principle was applied to former Latin American and African colonies when they gained independence, and partially to Yugoslavia.

But it cannot be applied to the Soviet Union, which had a complex and multi-level state structure from which the union republics emerged. It did not consist of colonies, but it was a union of state entities of various levels, union and autonomous republics, autonomous territories and regions, the status of whose territories and their borders could not be changed without their consent.

Fourthly, modern Azerbaijan, having renounced the succession from Soviet Azerbaijan when leaving the Soviet Union, has no legal basis for claims to the said territories, even if they were disputed. Article 2 of the Constitutional Act "On the State Independence of the Republic of Azerbaijan" stated that "the Republic of Azerbaijan is the successor of the Republic of Azerbaijan that existed from May 28, 1918 to April 28, 1920." According to Article 3, "the Treaty on the Formation of the USSR of December 30, 1922, is invalid from the moment of signing in the part relating to Azerbaijan," i.e. the Azerbaijan SSR was recognized as an illegal entity.

Thus, there are no legal grounds for recognizing the territories of the Republic of Armenia as "enclaves" belonging to Azerbaijan. Nikol Pashinyan himself once stated: "We must understand what legal basis the enclaves drawn on the map have, whether there is a legal basis or not. Or is this just an outline on the map, or, say, a decision by two collective farms that one gives from its territory to another, an Azerbaijani one. We strongly doubt that these actions have a legal basis" (https://shorturl.at/dAcW6). Now he has obviously changed his position diametrically. But any attempts to recognize the said territories as part of Azerbaijan are nothing more than gross legal and political arbitrariness to the detriment of Armenia. This cannot be allowed.