THE CATEGORIES OF REFUGEES AND FORCED MIGRANTS
THE CATEGORIES OF REFUGEES AND FORCED MIGRANTS IN THE LEGAL CONTEXT OF THE CONSEQUENCES OF THE KARABAKH CONFLICT
A state that is newly formed and even more, that already exists and is recognized and which has declared its main goal and major objectives as the insurance, defense and guarantee of human and citizen rights, is compelled to follow this principle. Moreover, it needs to take a full responsibility for its citizens not only at the given moment, but at least it should feel responsible for all those people who throughout history of the development of that state have been its citizens and later, because of the faults of the leadership, have become people deprived of the stability of legal-political connection to the developing state. (e.g. in case of USSR).
The above-mentioned responsibility is not only reflected through moral-political choice (whether admit one’s guilt or not), but contains also a clear legal component with implying social-economic consequences (material remuneration, etc.)
The legal component is based on the fact of deporting citizens from the borders of a transforming state, which later gets a new constitutional definition but without any participation whatsoever from its citizens who were previously deported. This refers to mass persecutions of Azerbaijani citizens of Armenian ethnicity in Azerbaijani SSR from 1988 to 1990. People were displaced and deprived of their republican citizenship (Uniform federal citizenship is established for the USSR. Every citizen of a Union Republic is a citizen of the USSR. Constitution of the USSR, Article 33, Adopted in 1977), because they were of “undesirable” ethnicity, which was absolutely not tolerated by the newly establishing “state-persecutor”. However, the legal-political relation between an individual and the citizen at the same time and the state, which was interrupted unilaterally and extensively, existed between concrete people and a concrete former soviet republic, namely Azerbaijani SSR. The united Soviet state was still intact and therefore, it can be claimed that the responsibility for the people falling into that category immediately was associated with the central authorities of the USSR, since the last instance of mass deportation of Armenian population from Azerbaijani SSR, on a part of the territory of which later Azerbaijani Republic was formed, happened in early 1990s, when the USSR still existed both de facto and de jure, and the central authorities were still able to supervise the situation on the territory of the USSR more or less effectively and with more or less partisanship. In this case if people were not deprived of their permanent status, but lost only some of their rights as soviet citizens, they could not be considered refugees according to its legal definition. According to definition used in international law, the refugee is defined as “a person who is outside his/her country of nationality or habitual residence (emphasis of the authors); has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution."(Convention Relating to the Status of Refugees, Article 1, 1951).
Thus, the formal attribute that Azerbaijani citizens of Armenian ethnicity who were displaced from their homes were citizens of a united state does not allow applying the status of refugees to them. However, the impossibility and unwillingness to turn to the republic, which was a part of the Soviet Union (still a united state), for protection was natural for those deported and was unanimous. Concepts, such as “internally displaced persons” and “forced migrants”, were unknown in the Soviet Union, since even the international norms regulating these statuses were shaped much later.
In any way, the de facto situation, i.e. forced deportation from the territory of a former USSR republic, which in conformity with the constitution of the USSR was a “state within a state” (this, actually was rather a formal declaration, than anything else (A Union Republic is a sovereign Soviet socialist state that has united with other Soviet Republics in the Union of Soviet Socialist Republics. Constitution of the USSR, Article 76, Adopted in 1977)), its consequence, i.e. forced migration from the individual’s habitual residence, as well as the internationally recognized fact of not crossing borders allow us concluding that at the time when the united Soviet Union still existed, the above-mentioned people could have been granted the status of internally displaced persons.
In 1998 the guiding principles on defining internally displaced persons were officially clarified. In the same year the UN Commission on Human Rights accepted the principles of human rights in a special resolution. UN General Assembly, Economic and Social Council and a number of other international organizations, among which OSCE officially affirmed these principles. The concluding remarks of the report made by the expert group working on the document in 1966 is noteworthy: “though the mentioned international right applies to persons internally displaced within the given country, in regard with other important aspects it does not serve as a sufficient foundation for guaranteeing their protection and possible assistance ”.
In Guiding Principles on Internal Displacement the following definition of IDP is provided: “…internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border” (Guiding Principles on Internal Displacement, Introduction: Scope and Purpose, Point 2).
In the Guiding Principles the first principle in Section One is another milestone: “Internally displaced persons shall enjoy, in full equality, the same rights and freedoms under international and domestic law as do other persons in their country. They shall not be discriminated against in the enjoyment of any rights and freedoms on the ground that they are internally displaced”.
Before the USSR collapsed the republics involved in decision-making regarding the fate of people under IDP category were Azerbaijani SSR and the Russian Soviet Federative Socialist Republic (RSFSR). Azerbaijani SSR as the perpetrator of mass deportations of its citizens of Armenian ethnicity explicitly demonstrated its position regarding these people. Not back then, not even now did either Azerbaijani SSR or Azerbaijani Republic do anything towards the recognition of their legal-political responsibility for the events, not to mention about moral responsibility. Azerbaijani SSR or the Republic of Azerbaijan have done nothing to prove their willingness to protect the rights and freedoms of their citizens of Armenian ethnicity: not when the displacement was still to launch, not during the deportations, and not even later. (“1. Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavor to facilitate the reintegration of returned or resettled internally displaced persons.
2. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration” (Guiding Principles on Internal Displacement, Principle 28).
“Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation” (Guiding Principles on Internal Displacement, Principle 29, Point 2).
A denial of legal nature is being put forward that the Guiding Principles and consequently, the non-existence of legal framing of IDP, i.e. that these principles are not legally obliging can only be taken into consideration regarding the former Azerbaijan SSR. However, this is true only in strictly legal terms, and it cannot be used as a political argument for the “major responsibility of the central authorities of the USSR” regarding the mass deportation of Azerbaijani SSR citizens of Armenian ethnicity. The political and moral responsibilities of the former Azerbaijani SSR were passed down to the Republic of Azerbaijan, since the above-mentioned categories were beyond the dimension of the concept of legal succession. Human rights and freedoms, their defense and reasons for violations cannot be considered as objects of legal succession or non-legal succession. More precisely, for the democratic partnership of states the issue of legal succession cannot be associated with these absolute categories. As early as in 1970 in the resolution on the case concerning the Barcelona Traction, Light and Power Company, Limited, the UN International Court recognized the responsibilities of the state in relation to the international society as a whole (ergo omnes responsibilities) such as “prohibition of acts of aggression and genocide” and “implementation of principles and norms regarding fundamental human rights, including protection from slavery and racial discrimination”. In other words if the state violates these obligations and duties, any other state according to international law has the right to take the case to court in order to defend those fundamental human rights and can protest against their violation. The current international law recognizes to conventions which regulate relations regarding strictly defined objects, namely, Vienna Convention on Succession of States in respect of Treaties, signed in 1978 and Vienna Convention on Succession of States in respect of State Property, Archives and Debts, signed in 1983. “These conventions specify that they can be applied to consequences of legal succession, which means that corresponding territorial changes are not considered to be subject of legal succession, but are rather its foundation. At the same time based on the principles regarding the applicability of these conventions, it can be inferred that legal succession literally means legitimate transfer of international rights and responsibilities from one state to another, when both are considered subjects of international law. What is positive about these conventions is the fact that in their texts there is a clear reference to succession in conformity with international law, including the international-legal principles underling the UN Charter .”
Thus, the current Azerbaijani Republic needs to take the full responsibility for reparation of material and moral damages caused to all the people who have suffered from the ethnic cleansings in 1988-1990 in Azerbaijani SSR, as well as during the proceeding military phase of the conflict which resulted in a new wave of refugees and IDP from Nagorno Karabakh and neighboring regions. As a perpetrator, it is exactly Azerbaijan that should be held responsible for the people who suffered during these events, including those citizens of Azeri ethnicity who, as a result of military actions, had to leave the territories of Nagorno Karabakh.
Modern Germany is not the legal successor of former Nazi Germany as such. However, this did not prevent the state from not only taking the political and moral responsibility for the evil deeds of the Third Reich, but also the responsibility for reparation for all the damages caused to people whose rights and freedoms were violated by the Nazi regime. If modern Germany, which is incommensurably detached from its predecessor according to all criteria, was able make such a big step, why can’t modern Azerbaijani Republic in the constitution of which it is mentioned that the “highest priority objective of the state is to provide rights and liberties of a person and citizen” (Constitution of Azerbaijani Republic, Article 12. The highest priority objective of the state) take this responsibility even if not for what happened on the territory of the transforming state - Azerbaijani SSR, whose legal successor it is not, but at least for the consequences of these events (Guiding Principles on Internally Displaced Persons, Principles 28 and 29).
Azerbaijan is not an exception in this regard. An analogous position is claimed by modern Turkey, which is unwilling to recognize and consequently hold legal, moral and material responsibilities for the fact of Armenian Genocide committed by Ottoman Turkey in Western Armenia and other regions of the country in 1915-1920. A country aspiring to access European Union and considering itself ready to declare it acts in conformity with European values, standards and norms, including protection of human rights and freedoms, is reluctant to accept the responsibility for those horrible crimes against humanity and mass violations of fundamental human rights and freedoms during the first Genocide of the 20th century to which about 2 million people were victims, and the descendants of the survivors from Western Armenia are dispersed all over the world and are yet to get reparations for their lost property from the government of Turkey. Meanwhile, there is a direct, one can even claim, mirror analogy between the process and consequences of Genocide and deportation of Armenians in Ottoman Turkey in 1915-20 and genocide and ethnic cleansings of Armenians in Azerbaijani SSR in 1988-90.
We need to emphasize one more time that the dogmatic references to the fact that the provisions of the Guiding Principles do not apply to this case since those are non-obligatory in nature and in addition, because the Republic of Azerbaijan in not accountable for the actions of the former Azerbaijani SSR, are simply unsubstantiated. A state that has a constitutional provision and a directly functioning norm of a high legal validity stated on the level of “highest priority objective of the state”, cannot claim about its non-participation in the past events that happened on its territory and which have led to currently valid consequences. These consequences are reflected in still continuing uncertainty regarding the status of people deported from the territory of Azerbaijani SSR and compelled to resettle on the territories of other USSR republics and in consequently persisting infringement and restriction of the whole complex of rights and freedoms of these people.
This refers to about 500.000 people of Armenian ethnicity who have left the territory of Azerbaijani SSR during the above-mentioned period. In addition, currently there are about 2 million Armenians living in different countries of the world who had left this former Soviet republic in different times or are descendants of natives of Azerbaijani SSR, who consider this country their historical homeland. At first the new settlement site for these people was Armenian SSR where the majority of people displaced from Azerbaijani SSR because of their ethnicity, were provided with shelter and certain material remuneration. However, later because Armenia was in a very difficult social-economic situation, going through a phase of considerable economic crisis and at the same time experiencing a large-scale blockade by Azerbaijan and Turkey, the majority of the above-mentioned people found “economic asylum” on the territory of former RSFSR and modern Russian Federation. In addition, a considerable part of former citizens of Azerbaijani SSR, mainly residents of Baku and near-by areas, found a temporary shelter on the territory of former Turkmen Soviet Socialist Republic. As a result of assault and battery of Armenians in January, 1990, in Baku, these people were taken on board ferries and rushed to the nearest Turkmen port, Krasnavodsk. However, soon many of them again left for other regions of the former USSR, mainly for Russian Federation.
Exodus from Azerbaijani SSR and migration to Armenian SSR was basically an instance of searching for “political asylum”, since at that moment the major and most probably the only concern of these people was basic survival, protection of their lives and lives of their family and friends. Then the economic issues of social and material character were insignificant. People were aware of one fact only - they are migrating within the state of their habitual residence and citizenship and their exodus is compelled by the impossibility of staying in any political-legal relation with Azerbaijani SSR, the perpetrator of forced migration. Economic disorder was the reason for a second wave of mass migrations to nearby regions of Russian Federation with comparatively more stable economy - Northern Caucasus, Krasnodar and Stavropol regions. Part of them migrated to Moscow and its suburbs. Thus, considering the perimeters of migration of the majority of people who still do not have a clear legal status, it can be noted that the states involved in the definition of these statuses and the further fate of these people are Russian Federation, the Republic of Azerbaijan and the Republic of Armenia.
A significant part of the deported population migrated directly to the territory of RSFSR. Some of them got a temporary status, and later became citizens of the Russian Federation. However, another considerable part of people in this group who directly moved to Russia, are still on its territory with an uncertain legal status.
It is worth to cite the opinion of a Russian expert on legal provisions of migration regarding the issue of uncertain legal status (Gannushkina S. A., Head of the department “Migration and Rights” of the legal center “Memorial”): “…refugees from Azerbaijani SSR in 1989-90 are victims of ethnic assaults, who came to the capital of their state, Moscow, or other parts of Russia. They did not cross borders of the state of their citizenship. The authorities are reluctant to recognize them as IDP. They are referred to first as belonging to one, and then to another category. And now it is very difficult for them. In the Moscow region many of them did not get Russian citizenship, and the reasons were various. First, in Moscow it was very difficult to get registered at the address of residence and the resolution of the Ministry of Internal Affairs, which allowed those who had the status of a refugee to submit application for citizenship without such registration, appeared rather late. Second, some of them did not even want to get Russian citizenship. In addition, there were people who claimed that they were automatically considered Russian citizens (Article 13.1 RF Law on RF Citizenship, 1991), since they had not crossed the borders of their state, residing in Russia during soviet times. When in 1997 the new edition of law on refugees was ratified, in the Federal Migration Service (FMS) they started talking about the fact that the status of refugees from Azerbaijan is not clarified, since the edition clearly defined the procedure for granting this status and those people did come up under the provisions of this law. They did not even apply for grating a status. The leadership of FMS decided that it wouldn’t hurt to undertake something that would allow them throwing off the heavy burden of responsibility off FMS. There were even talks about sending them back to Azerbaijan. We started acting vigorously, got information from UNHCR about Azerbaijan as a country of exodus. UNHCR clearly defended our position that the refuges should not return to Azerbaijan ”. The uncertainty of the position of Russian authorities on many issues, regarding people forced to migrate from the former Soviet republic and till now having no clear status in their country of habitual residence is apparent. Other experts in the field also point out this uncertainty, characterizing the legal positions of the Russian Federation regarding IDP. They emphasize that “in Russian legislation the concept of “internally displaced persons” is absent in the same meaning as it has in the Preamble of Guiding Principles. The term “forced migrant” which is circulated in the Russian legislation and the definition of which is provided by Article 1 of the RF law on forced migrants (ratified in 19.02.1993. Currently it is executed in conformity with the edition of this law in 20.11.1995)” has only linguistic resemblance with IDP, as defined in Guiding Principles. If speaking of content criteria, according to definition, forced migrant is the citizen of Russian Federation, who has been forced to leave his place of residence as a result of aggressions and persecutions in any form aimed at him/her or members of his family.” Obviously, the definition of a forced migrant is based on the model definition of a refugee in the Convention relating to the Status of Refugees adopted in 1951, and similarly in order to recognize somebody as a forced migrant he/she should go through a certain procedure analogous to the procedure necessary to grant a status of one seeking for a political asylum. Thus, a forced migrant is a separate legal status of a person and it is “the basis for providing him/her with guarantees in conformity with the mentioned law, federal laws and other normative legal acts of Russian Federation as well as in conformity with laws and other normative legal acts of the subjects of Russian Federation” (Paragraph 2, Article 5). In other words, given the absence of the concrete concept of a forced migrant, the person internally displaced within the boundaries of his/her country, cannot use the rights and guarantees securing him/her a protection and assistance of the state. Meanwhile, in contrast with refugees, who need a special status, since they have lost the protection of their own country and need to seek it on the territory of another one, IDP does not need this status, since they remain the citizens of that country and should enjoy the very rights that other citizens have. They only need additional guarantees facilitating the realization of these rights and the resettlement in case of forced migration. ”
Thus, the significant part of Armenian population of the former Azerbaijani SSR that has directly migrated to the Russia Federation and has one or another official status has already got a permanent status of a RF citizen or goes under the status of a refugee, but not that of IDP, since such a status is exclusive to a RF citizen only.
A larger group of people after deportations resided on the territory of Armenian SSR, stayed there for a prolonged period of time and only then moved from the Republic of Armenia to RF. It appears that these people have crossed internationally recognized borders, and thus, cannot be regarded as IDP. De facto, many among this group are persons without citizenship (stateless person), since the last status they have hold was that of a citizen of the former Azerbaijani SSR and through it of a citizen of the former USSR. Later they did not get either citizenship of the Republic of Armenia or RF and with time they lost their status of a refugee, which is granted for a strictly limited period (according to Article 7 of the RA Law on Refugees the period of granting the status of a refugee is up to 3 years). The Convention relating to the Status of Stateless Persons adopted in 1954 defined the term “stateless person” as “a person who is not considered as a national by any State under the operation of its law.” According to Article 12 of this Convention, “the personal status of a stateless person shall be governed by the law of the country of his domicile (i.e. the legal formulation of his/her residence – authors’ annotation) or, if he has no domicile, by the law of the country of his residence”. In addition Article 32 specifies that “The Contracting States shall as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”
In 1961 the Convention on the Reduction of Statelessness was adopted, the major provision of which is the desirability that the contracting states will grant their nationality to those persons who otherwise have no any other option to get it.
A legitimate question arises: which of the three states is able and willing to take the responsibility for recognition, execution, provision, protection and guarantee of a permanent legal status for people who have largely suffered from the conflict? In other words, which of the three countries has the capacity, legitimate right, and a strong willingness of central authorities to provide citizenship to people whose rights and freedoms are restricted and who at the moment have unclear legal status? And the third question, closely connected with the last two: to which of the three countries these people want to tie their fate and consequently get the corresponding citizenship?
Equivalence of these questions and the fact that they are already very urgent are implied from the position discussed earlier in the paper, namely, equal rights of humans and states within the framework of protection of human rights and freedoms and provision of collective human rights through protection of collective and state interests.
Azerbaijani Republic does not possess any of the elements from the above-mentioned trio (ability, legal right and willingness) and more importantly, people under discussion do not have a slightest desire to connect their destinies with a state that has not yet renounced what has happened and still continues its aggression towards this group. Moreover, with increasing anti-Armenian hysteria, xenophobia and racism in modern Azerbaijan, talking about a realistic possibility of peaceful co-existence of Armenians and Azeri is simply absurd in the foreseeable future .
The Republic of Armenia has a legitimate right, since chronologically the last status grated to these people after their status of a citizen of Azerbaijani SSR was the status of a refugee, which Armenia granted them already after the formation of the Republic of Azerbaijan and the Republic of Armenia, i.e. after the recognition of their borders proper by international society. Whether with or without the status of a refugee, people were leaving the Republic of Armenia for RF, and it was on the territory of the last that they got neither temporary nor permanent status. Based on all the above-mentioned, it can be claimed that the Republic of Armenia has the legal basis for grating these people with its nationality, since first, the Republic of Armenia is the legal successor of Armenian SSR, thus all the rights and responsibilities regarding this issue were transferred to the modern Republic of Armenia and second, the last status of these people, though a temporary one, was that of a refugee granted and recognized by the government of the Republic of Armenia, and it can be renewed and later transformed into the status of a citizen of the Republic of Armenia. In this context we need to emphasize that people were leaving the country for RF because of socio-economic reasons, however, under the operation of the second point of Article 2 of the federal law of RF on refugees adopted in 1993 (edition of the federal law dated 28.06.1997 No. 95-F3 and 21.07.1998 No. 117-F3) this law is not applied to foreign citizens and stateless persons, who have left their countries of nationality (country of their previous residence) for economic reasons. It is also worth to note that one of the foundations for refusing to consider the application for a status, according to Article 5 F3, is the fact that the person from a foreign country has arrived from a state where he/she had a chance to be recognized as a refugee.
However, the Republic of Armenia does not have the necessary economic resources for adequately accepting these people back in case of providing them with citizenship. Besides, it has already provided citizenship to several thousand former citizens of Azerbaijani SSR and has provided with minimal resources to an extent that was possible given its difficult socio-economic situation. And the most important, these people, particularly those on the territory of RF, are not very willing to return to the territory of the state where their socio-economic rights and freedoms have a very limited chance of realization. The lack of knowledge in the state language, which can limit their opportunities of education and employment; small lands of Armenia and in this regard the issue of employment for people the majority of whom were engaged in agricultural sector, etc are only some of the issues.
On the other hand, RF has almost everything: opportunities, which though somewhat limited, are still there, and legal right, since RF is the legal successor of the former Soviet Union. In addition, a significant part of former Azerbaijani SSR citizens found shelter in RF and has either got the status of the RF citizen or are in a legal position conducive to getting it. These people are willing to connect their destinies with the state that has provided them with a shelter, especially if compared with other former soviet republics in question. However, in case of RF there is a lack of political will to be demonstrated both by central authorities and more specifically by regional authorities and those of separate subjects of the Federation. The absence of political will results in total absence of political rights and freedoms for these category of people, which are secured by the status of citizenship, as well as significant limitation of their socio-economic freedoms and Infringement of individual rights. This is particularly unacceptable, since these people should not be in constant fear for their lives and lives of their families and friends; they cannot be repressed forever, for already more than 15 years in their most important inherent rights.
All this shows the necessity of coming up with a qualitatively different formulation on the current status of the category of people in discussion and on this basis, promotion of the concept of immediate recognition, execution, protection and guarantee of their rights and freedoms. Only such a concept can provide answers to some open questions:
1. Which state should take the responsibility for providing the whole complex of rights and freedoms of the above-mentioned people?
2. How can this help overcome the major injustice, i.e. the infringement of rights and freedoms of these people and how can this contribute to the settlement of disputes regarding the Karabakh conflict?
Considering at least its own moral obligation in regard with these people, The Nagorno Karabakh Republic (NKR) should recognize their right for getting NKR citizenship through a possibly simple procedure. In addition, the Nagorno Karabakh Republic can provide these people with an opportunity to resettle on the territories that are under its control, since first, these people have suffered from this conflict in both moral and material terms and secondly, up to the time of their forced migration, which was characterized with genocide and ethnic cleansings, they were citizens of Azerbaijani SSR and USSR (Article 33 of the Constitution of USSR adopted in 1977: “Uniform federal citizenship is established for the USSR. Every citizen of a Union Republic is a citizen of the USSR. The grounds and procedure for acquiring or forfeiting Soviet citizenship are defined by the Law on Citizenship of the USSR.) This means that before their deportation they were in a consistent legal-political relation with Azerbaijani SSR and through it with USSR. Therefore, they have the right to resettle on the territory of the former Azerbaijani SSR, since at the moment they have the status of a refugee, which is of temporary nature and grants them with an opportunity to return to the territory of their former citizenship. The territories controlled by the Nagorno Karabakh Republic, namely the Lower Karabakh, are considered such and currently, the armed forces of NKR can ensure safe residence and development for these people. Lower Karabakh, unlike other territories under the jurisdiction of the Nagorno Karabakh Republic, has more opportunities suggestive for allocation and provision of adequate conditions for effective functionality of the people in this category, than those regions of the Republic that were repressively restricted within the borders of former Nagorno Karabakh Autonomous Region (NKAR) during the soviet times. To compare, one needs to remember that during soviet times the number of Armenians originally from NKAR but residing in other regions of Azerbaijani SSR exceeded the Armenian population of NKAR, though this was due not only to the objective social-economic reasons and limited natural and material resources, but also due to the explicit policy of resettling Armenians from NKAR exercised by the authorities of Soviet Azerbaijan, which resulted in the fact that by the end of 1980s about 80% of the Armenian population of NKAR had left the region. However, the mentioned territories of Lower Karabakh are not sufficient reparation for the former citizens of Azerbaijan SSR, who left this republic in 1988-90 as a result of mass persecutions and genocide. The quantitative analysis of the immoveable of Armenian residents of Baku, Kirovobad, Sumgait and other cities, shows that there are about 100-110 thousands of apartments and private mansions left deserted as a result of deportation. Considering the fact that Armenians of Azerbaijani SSR had a certain professional stance, for instance, traditionally they comprised the majority of leading specialists in oil industry of Azerbaijani SSR, and high level of education, they were socially and economically much better off than the rest of the population of Azerbaijani SSR, including the Azeri resettling on the territory of Lower Karabakh at the end of 1980s. For example, some of them had 2-3 apartments. Thus, the above-mentioned remuneration is not sufficient for their losses. At the same time, there can’t be any talk of them returning to their former places of residence, since there is a permanent practice of committing large and small genocides against the Armenian population by various authorities of Azerbaijan throughout the whole last century. Even if the existence of central authorities during soviet times which had a considerable control over authorities of various instances, was not enough to prevent perpetual repressions and discriminations of Armenian population in Azerbaijan, which eventually resulted in genocidal actions against Armenians in 1988 in Sumgait and later in 1990 in Baku and other Armenian-populated areas of Azerbaijan, how can the modern Azerbaijan where armenophobia and misanthropy are promoted in state politics, secure the safety and normal residence of former Azerbaijani citizens? Thus, the only way out of this deadlock is the ethnic demarcation and the only territories, where the previously repressed citizens of former Azerbaijani SSR can enjoy safe residence are the territories of Lower Karabakh, which are under the jurisdiction of the Nagorno Karabakh Republic.
In addition, considering that the Nagorno Karabakh Republic can guarantee their safety and thus, take these people under its state protection, there appears a need for formulating political-legal relation between these people and NKR in the form of their citizenship to this country.
The category of people who have left their former country of nationality, i.e. Azerbaijani SSR and consequently, USSR, has a right to get citizenship of NKR based at least on the fact that once NKAR was a part of Azerbaijani SSR (at least formally. Let’s leave aside the legitimacy of such an inclusion ) and thus, to some extent, is the legal successor of Azerbaijani SSR, since:
1. The modern Azerbaijani Republic has refused to be the legal successor of Azerbaijani SSR and adopting the Declaration of Independence on August 30th, 1991, declared that the Azerbaijani Republic that existed in 1918-1920 is its legal predecessor;
2. Armenians, along with the Azeri, were a state-constituent nation, established in 1920 as Azerbaijani SSR and this is based on a sole fact that they were the only organized national entity on the territory of Azerbaijan and remained the only state entity that carried responsibility for all Armenians living on the territory of Azerbaijani SSR prior to August 30th. Therefore, Armenian refugees admittedly have the right to get the citizenship of the Nagorno Karabakh Republic.
The majority of the Azeri population of NKAR left their places of residence, e.g. certain districts of Shusha, after the Declaration on Proclamation of the Nagorno Karabakh Republic on September 2nd, 1991 and Referendum for independence on the 10th of December of the same year. Incidentally, they had a chance to participate in the referendum: nobody prohibited them to do so. However, they ignored it. Notwithstanding the active opposition of these people against the legal right of the majority of the population of NKR to form an independent state, NKR has to ensure the return and reintegration of this category of people into the civil society of Karabakh as citizens enjoying full rights.
The following military-political aspect needs a special emphasis: if the Declaration of September 2, 1991 and the referendum of December 10 of the same year, which confirmed the earlier Declaration, were aimed at establishment of NKR within the imposed and arbitrarily established borders of NKAR as a certain gesture of good will on the side of NKR , then later, the conflict transformed from a political-legal dimension to the dimension of open military opposition, since the official Baku refused to accept the peaceful declaration of independence of NKR within NKAR plus Shahumyan and Getashen regions. This compelled NKR to enter into the military phase of defending its legitimate right to self-determination through organization of self-defense.
The leadership of Azerbaijani Republic attempted not only to deprive the second state-forming nation of the former Azerbaijani SSR of its right to choose an independent path of political development, but tried to totally deport and eliminate it physically. Thus, the full responsibility for perpetrating military actions and consequently, for the following outcomes, including the issue of material reparation of casualties to the refugees and IDPs regardless of their nationality or current habitual residence, lies with the leadership of Azerbaijan. It was the Azerbaijani leadership with support of army forces of former Soviet Union and later Russian troops that came to substitute them, that started active military actions against the fully blockaded, enclaved population of Nagorno Karabakh, which given the existing conditions were not in a position to initiate war. It is the leadership of Azerbaijani Republic that is to blame for the use of new types of armaments and military technology throughout the course of the military actions, starting with heavy armored technology up to artillery, military choppers, and airplanes which resulted in enormous casualties, in particular within the peaceful populations. Azerbaijan, in connivance with leadership of the Ministry of defense of RF, essentially appropriated and took over the armament and military technology of the military bases of the former USSR that were deployed on its territory. This was a direct violation of the obligations that Azerbaijan complied to by joining the Treaty on Conventional Armed Forces in Europe in 1990, after it signed the Tashkent agreements on May 15, 1992, which included the principles and procedures for the implementation of the Treaty on Conventional Armed Forces in Europe and Protocol on Maximum Levels for Holdings of Conventional Armaments and Equipment .
However, as it is known, notwithstanding the overwhelming quantitative and technical superiority of the armed forces of Azerbaijan, in the result of effective military actions during the military phase of the conflict the Defense Army of NKR was able to conquer the territories of former Azerbaijani SSR, which Azeri Army used as military bases and from where the peaceful settlements of NKR were being bombarded. It should be reminded once again that these were the territories of former Azerbaijani SSR and not of modern Republic of Azerbaijan. The NKR forces stayed there and have exercised quite an effective control over these territories up to date. The dispute about these territories is ongoing and the issue of jurisdiction is still open, since during the period of active opposition which started exactly after the December 10 referendum, i.e. in 1992, the mentioned territories were taken over first by one, then by the second, i.e. the subject of control was being occasionally changed from NKR to the Republic of Azerbaijan and back. Thus, there was a high probability that the situation could have been reverse, i.e. Azerbaijani Republic could have gained control not only over the mentioned territories, but also those of former NKAR proper, where nowadays the Nagorno Karabakh Republic controls the territories of former Azerbaijani SSR.
However, from a legal perspective, the current situation is more appropriate, since the Republic of Azerbaijan is not the legal successor of the former Azerbaijani SSR, and thus, it cannot claim the territories of Azerbaijani SSR in absolute terms that do not accept any counterarguments. Such a counterargument in the legal aspect is the factor of “effective control” over those historical territories of NKR, which was never exercised either by Azerbaijani Democratic Republic of 1918-1920, or the modern Azerbaijani Republic, as well as neither of them had legitimately established or internationally recognized borders to which the current leadership of Azerbaijan claims its ownership. In particular, after the formation of Azerbaijani Democratic Republic in 1918, and the first appearance of a previously unknown state on the world map in the result of Turkish aggression in Transcaucasia, it came up with unsubstantiated territorial claims from all the neighboring states, claims on territories from Baku to Batumi. In 1919 it even presented a corresponding document to the League of Nations. However, the League did not consider this document legitimate, which in fact was also the main reason why it refused to recognize the Azerbaijani Democratic Republic de jure, and this state left the world political map without internationally recognized and legitimate borders. The Republic of Azerbaijan as declared such in 1991, basically came back to the legal realities of 1918-1920, thus becoming the legal successor of the Azerbaijani Democratic Republic, which had neither internationally recognized borders, nor any rights to the territories currently under the jurisdiction of NKR. Moreover, even the access of Azerbaijan, as well as other former Soviet republics, to the UN, OSCE and a number of other international organizations, is simply the consequence of inertia of referring to USSR as an international judicial personality. This does not necessarily suggest that these organizations recognize the borders and territories claimed by official Baku.