- As contra-arguments Azerbaijan underlies the followings:

• Nagorno-Karabakh in the context of consideration of a question regarding the admission of Azerbaijan and Armenia to the League of Nations

• Nagorny Karabakh within the Azerbaijan SSR

• State succession in respect of territory and boundaries in the context of restoration of the state independence of the Republic of Azerbaijan

1. Nagorno-Karabakh in the context of consideration of a question regarding the admission of Azerbaijan and Armenia to the League of Nations

• Following the entry of the British forces into Baku in 1918, general V.Thomson, who represented the Allied Powers, recognized Nagorno-Karabakh together with the neighboring Zangezur uyezd under the administration of Azerbaijan. He confirmed the appointment by the Government of Azerbaijan of Khosrov Sultanov as a Governor of the Karabakh General-Governorship, of which these two regions were part. In 1919 the Armenian Assembly of Nagorno-Karabakh recognized officially the authority of Azerbaijan.

• In 1918-1920 the Republic of Azerbaijan had diplomatic relations with a number of states. Agreements on the principles of mutual relations were signed with some of them; sixteen states established their missions in Baku.

• On 12 January 1920 at the Paris Peace Conference the Supreme Council of the Allied Powers de-facto recognized the independence of the Republic of Azerbaijan.

• The head of the Azerbaijani Delegation at the Conference by a letter of 1 November 1920 requested the Secretary-General of the League of Nations to submit to the Assembly of the League an application for the admission of the Republic of Azerbaijan to the Organization.

• The Secretary-General pointed out in his Memorandum of 24 November 1920 that the mandate of the Azerbaijani Delegation attending at the Paris Peace Conference derived from the Government which had been in power at Baku until April 1920. Thus, the attention in the Memorandum is distinctly paid to the fact that at the time of submission by the Azerbaijani Delegation of the application (1 November 1920) and the publication date of the Memorandum (24 November 1920) the Government of the Republic of Azerbaijan, which issued the credentials to the Delegation, was not actually in power since April 1920. It was further noted in the Memorandum that this Government did not exercise the authority over the whole territory of the country.

• In this context, the most important part of the mentioned Memorandum of the Secretary-General of the League of Nations relates to "Juristic observations", which reminds of the conditions governing the admission of new Members to the Organization contained in Article 1 of the Covenant of the League of Nations, including the requirement to be a fully self-governing state.

• The relevant documents of the League of Nations completely disprove the statements of the Armenian side claiming that the League of Nations did not admit Azerbaijan because of its alleged territorial claims to the so-called Armenian-populated territories and the refusal to recognize the control of Azerbaijan over Nagorno-Karabakh. It is obvious actually that the state, considerable part of the territory of which was occupied by the time of consideration of its application in the League of Nations, and yet the Government that submitted this application was overthrown, could not be regarded as fully self-governing in terms of Article 1 of the Covenant of the League of Nations. Thus, these were just those conditions that prevented Azerbaijan from being admitted to the League of Nations.

• At the same time, the League of Nations did not consider Armenia itself as a state and proceeded from the fact that this entity had no clear and recognized borders, neither status nor constitution, and its Government was unstable. As a result, the admission of Armenia to the League of Nations was voted down on 16 December 1920.

2. Nagorno-Karabakh within the Azerbaijan SSR

• Along with the above-mentioned facts on the recognition by the Allied Powers of the authority of Azerbaijan over Nagorno-Karabakh, a proposition that Karabakh was not under the jurisdiction of independent Azerbaijan when it became part of the Soviet Union refuted also by the decision of the Caucasian Bureau of the Central Committee of the Russian Communist Party (Bolsheviks), which owing to the territorial claims of Armenia did take up the problem several times and, at the meeting held on 5 July 1921, decided to retain Nagorno-Karabakh within the Azerbaijan SSR. At the same time, the Azerbaijan SSR was recommended to confer Nagorno-Karabakh a broader autonomy.

• On 13 October 1921 the Treaty of Friendship between the Armenia SSR, Azerbaijan SSR and Georgia SSR, on the one hand, and Turkey, on the other, was concluded in Kars with the participation of the RSFSR. In Article 5 of the Treaty the Governments of Turkey, Armenia and Azerbaijan expressed their consent that "the Nakhchivan oblast … forms an autonomous territory under the protection of Azerbaijan".

• Transcaucasian Socialist Federal Soviet Republic (TSFSR) was established on 13 December 1922. The Constitution of the TSFSR confirmed that the Republic of Nakhichevan was an inseparable and constituent part of Azerbaijan in form of an autonomous unit. According to this Constitution, the status of autonomous republics and oblasts (Abkhazia, Ajaristan and South Ossetia) remained unchangeable.

• Insofar as the mountainous part of Karabakh was officially recognized as an inseparable part of Azerbaijan, including by the Armenia SSR, neither the Treaty of Kars nor the Constitution of the TSFSR contained any reference to it.

• The next day after the adoption on 7 July 1923 of the first Constitution of the USSR, the Central Executive Committee of the Azerbaijan SSR issued a Decree "On the Formation of the Autonomous Oblast of Nagorny Karabakh".

• The status of Nagorno-Karabakh as an autonomous oblast within the Azerbaijan SSR was stipulated in the Constitutions of the USSR of 1936 and 1977.

• In accordance with the Constitutions of the USSR and the Azerbaijan SSR, the legal status of NKAO was governed by the Law "On the Nagorno-Karabakh Autonomous Oblast", which had been adopted by the Supreme Soviet of Azerbaijan SSR on 16 June 1981.

• Under Article 78 of the USSR Constitution, the territory of a Union republic could not be altered without its consent. The borders between Union republics could be altered by mutual agreement of the Republics concerned, subject to approval by the USSR. This provision was also incorporated in the Constitutions of the Azerbaijan SSR and the Armenia SSR.

• In connection with the adoption in the late 1980-s of the illegal decisions aimed at the secession of NKAO from the Azerbaijan SSR and annexation of the region to the Armenia SSR, the Supreme Soviet of the USSR and its Presidium considered on several occasions the situation with respect to the crisis in Nagorno-Karabakh. All decisions adopted by the superior state body of the former USSR unequivocally recognize the inadmissibility of changing borders and the constitutionally established national-territorial division of the Azerbaijan SSR and the Armenia SSR.

• Thus, the whole process of separation of Nagorno-Karabakh from the Azerbaijan SSR in favor of the Armenia SSR, formally started on 20 February 1988, was accompanied by the apparent violation of the USSR Constitution, and, therefore, caused no legal consequences whatsoever.

• The correctness of this appraisal is circumstantially evidenced by the next attempt of the Armenian side to legalize the secession of Nagorno-Karabakh, which was made on 2 September 1991. Unlike all previous decisions, the proclamation that day of the "Republic of Nagorno-Karabakh" was grounded by the Law of the USSR "On the Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR" of 3 April 1990.

• It is necessary first to note that the purpose of this Law was to regulate mutual relations within the framework of the USSR by establishing a specific procedure to be followed by Union republics in the event of their secession from the USSR. A decision by a Union republic to secede had to be based on the will of the people of the Republic freely expressed through a referendum, subject to authorization by the Supreme Soviet of the Union republic.

• At the same time, according to this Law, in a Union republic containing autonomous republics, autonomous provinces and autonomous regions, the referendum had to be held separately in each autonomous unit, the people of which retained the right to decide independently the question of staying in the USSR or in the seceding Union republic, as well as to raise the question of their own state-legal status.

• It is important to emphasize that the secession of a Union republic from the USSR could be regarded valid only after the fulfillment of complicated and multi-staged procedure and, finally, the adoption of the relevant decision by the Congress of the USSR People's Deputies.

• However, until the Soviet Union ceased to exist as international person the mentioned Law was without legal effect, since no Union republic, including Azerbaijan and Armenia, had used the procedure for secession stipulated in it.

• Until the Republic of Azerbaijan attained full independence and was recognized by the international community, the territory, on which the NKAO of the Azerbaijan SSR existed before 26 November 1991, had remained part of Azerbaijan.

  3. State succession in respect of territory and boundaries in the context of restoration of the state independence of the Republic of Azerbaijan

• After the collapse of the USSR, the international legal doctrine of uti possidetis juris underlay the international, regional and national legitimation of boundaries of the newly independent states.

• According to the doctrine of uti possidetis juris, from the time of attainment by the Republic of Azerbaijan of its independence, the former administrative borders of the Azerbaijan SSR, which included also the NKAO, are recognized as international and protected by international law. This understanding is also confirmed in the known resolutions of the UN Security Council on the Nagorny Karabakh conflict.

• Regarding the proposition of the Armenian side that by proclaiming the restoration of the state independence of 1918-1920 and thus becoming the successor of the then ADR Azerbaijan allegedly forfeited a right to pretend to the borders of the Soviet period, the attention should be drawn to Article 11 of the Vienna Convention on Succession of States in Respect of Treaties, according to which "[a] succession of States does not as such affect: (a) a boundary established by a treaty….". In other words, though this provision directly applies only to external boundaries of the former USSR established by international treaties, to which it was a party, it actually represents a conceptual international legal approach provided that an existing boundary continues to exist notwithstanding the succession, so that the change of sovereignty is powerless to undermine such boundaries which achieve permanence.