CHORBAJIAN: THE MEANING OF THE PROTOCOLS FOR THE FUTURE OF KARABAGH
By Levon Chorbajian

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October 10, 2009

While neither protocol mentions Nagorno-Karabagh by name, there are
provisions in the protocols with dangerous and permanent implications
for Karabagh and Armenia. Three highly problematic provisions appear
in the Protocol on the Establishment of Diplomatic Relations between
the Republic of Armenia and the Republic of Turkey.

The first reads: "Reconfirming their commitment, in their bilateral
and international relations, to respect and ensure respect for the
principles of equality, sovereignty, non-intervention in [the] internal
affairs of other states, territorial integrity, and inviolability
of frontiers…" It should be noted that self-determination is
missing. The right to self-determination is a strong black letter
law principle in international law. It is the basis on which the
people of Karabagh challenged their standing as an autonomous
region of Azerbaijan and fought for their independence, leading
to the creation of their de facto state, the Republic of Nagorno
Karabagh. The principle of self-determination is not present
anywhere in these protocols. What is present is the principle
of territorial integrity, which is also a longstanding principle
of international law. The two-self-determination and territorial
integrity-have absolutely equal weight in the law. One does not
trump the other, which is part of what makes disputes such as the
one over Karabagh difficult and often intractable. In an effort to
alter that consequence and to shift the debate and the solution in
a direction to their liking, Azerbaijan, Turkey, and their powerful
allies have sometimes falsely argued that territorial integrity has
greater power than self-determination. Here in the protocols, they
go one step further and remove self-determination from the equation
altogether. This provision and its exclusion can be used-and we
can predict will be used-to argue that the present Turkish-Armenian
frontier is legitimate and inviolable. Furthermore, the case will be
made that Karabagh should be re-integrated into Azerbaijan because
its independence is in violation of territorial integrity, which even
the Armenian government has agreed through these protocols is the sole
principle on which issues of territorial dispute should be resolved. As
it applies to Karabagh, this provision contains implications of such
toxicity that it should be cause by itself fo!

r the rej ction of the protocols.

The second reads: "Confirming the mutual recognition of the existing
border between the two countries as defined [by] relevant treaties
of international law…" The relevant treaties are the Treaties
of Alexandropol (December 1920) and Kars (October 1921). The first
granted to Turkey three-fifths of the territory of the first Republic
of Armenia, while Kars ratified that allocation and set the borders
between Armenia and Georgia, and Armenia and Azerbaijan, in addition
to Armenia and Turkey. There are several factors that call the
legitimacy of these treaties into question, not the least of which
is that Alexandropol was signed by Armenian delegates under extreme
duress who were not in power at the time, having shortly before been
expelled by the Bolsheviks. As pertains to Karabagh, the Caucasian
Bureau of the Bolshevik Party had allocated Karabagh to Azerbaijan
in July 1921. The protocol provision above would have the effect of
legitimizing Azerbaijan’s claim to Karabagh by drawing on the Treaty
of Kars despite its weak legal foundation.

The third reads: "Supporting the promotion of the cooperation between
the two countries, in the international and regional organizations,
especially within the framework of the UN, the OSCE, the Council of
Europe, the Euro-Atlantic Partnership Council, and the BSCE…" Enter
the Madrid Principles, which clearly fall "…within the framework
of…" When Obama, Medvedev, and Sarkozy issued their joint declaration
on Karabagh in July 2009, they relied on the Madrid Principles as the
basis for peace, but in fact enforcement of the Madrid Principles would
lead to great instability and the possibility of war. These Principles
call for the withdrawal of Armenian and Karabagh forces from occupied
territories adjacent to Karabagh, the return of displaced persons,
and the status of Karabagh to be determined at a later date. It
may appear to be a reasonable program to the uninitiated but when
it is examined, this plan reveals itself to be highly detrimental
to Armenian interests. The only leverage the Armenians have in the
negotiations over the future of Karabagh is the occupied territories
(a term, by the way, universally rejected in Karabagh in favor of
"liberated" territories). Armenia and Karabagh are asked to surrender
their most powerful trump card for nothing in return. By returning the
territories, Armenia and Karabagh will create an impossible security
problem for themselves. With currently Armenian-held territories in
Azerbaijani hands, Armenians will have to patrol and secure many
times the length of the border they currently have to secure. An
impossible task.

There is simply not the manpower for it. With the territories between
Armenia and Karabagh in Azerbaijani hands, Karabagh will be surrounded
on four sides by an armed and hostile Azerbaijan. Armenia itself will
have a border with Azerbaijan that is much closer to Armenia than is
currently the case, and render its entire eastern front, and possibly
Yerevan itself, subject to artillery bombardment and missile attack.

There are other problems with the Madrid Principles. Security concerns
are to be assuaged through the deployment of peacekeeping forces. Yet
peacekeeping forces can offer little comfort because their history
throughout the world has largely been one of failure attributable to
poor funding, inadequate numbers, inadequate periods of deployment,
unclear mandates, poor leadership, and various forms of corruption.

Second, the return of displaced persons is generally taken to mean the
return of Azerbaijanis to Karabagh and surrounding territories. It does
not refer to Armenians forced out of Baku and the rest of Azerbaijan.

There is no provision for them to return to their homes, or one
that guarantees their safety or monetary compensation for their
losses. Lastly, Karabagh’s final status is to be determined by
a vote. But who is to vote? Karabagh Armenians, all residents of
Karabagh, residents of the returned territories, all of Azerbaijan? The
answer is yet to be determined, and in light of past history, it
would not be wise to make reasonable assumptions.

In conclusion, the resolution of territorial disputes based on the
principle of self-determination have historically been made on the
basis of three criteria: The first is who has lived there in the
past, the second is who lives there now, and the third is what do
the people who live there now want? It is actually unusual for all
three of these questions to be answered in favor of one side. For
example, a well-known, anti-colonial struggle is that of Catholics
in Northern Ireland. Yet, while their case is strong, Catholics in
Northern Ireland have not been in the majority since 1920. All three
of the above questions when applied to Karabagh are answered in favor
of the people of Karabagh. Karabagh presents perhaps the strongest
case for self-determination anywhere in the world. That should never
be forgotten, and it should be the foundation for any resolution of
the Karabagh Question-not the protocols or the Madrid Principles.