LONGSTANDING INTERNATIONAL DECISION ON ARMENIAN-AZERBAIJANI BORDERS AS A BASIS FOR A CONFLICT RESOLUTION
BY ARA PAPIAN
JUNE 14, 2012
Various ways have been proposed to resolve the Nagorno-Karabakh
conflict over the years. Lately, on the 5th of June, 2012,
a discussion was held at the Woodrow Wilson Center in Washington
with the participation of four experts entitled, “Nagorno-Karabagh:
Will the Frozen Conflict Turn Hot?” It is worth noting, by the way,
the coincidence of the event’s date and content with the attacks
carried out by Azerbaijan on the Republic of Armenia on the night of
the 4th-5th of June. However, let us turn to the actual matter at hand.
Unfortunately, I was not present at that discussion and am not familiar
with its details. Regardless, one point in particular among the issues
raised drew my attention, and I would like to turn to it.
Wayne Merry, a senior fellow at the American Foreign Policy Council,
Washington, spoke of resolving the Nagorno-Karabakh conflict through
“forceful arbitration”. According to news sources, he said, “Mediators
don’t negotiate: both sides – Azerbaijan and Armenia don’t let their
job work. Now, in this case, it’s time to move from mediation to
forceful arbitration”.[1]
This idea differs in essence from other ones that have been expressed
with regards to resolving the Nagorno-Karabakh conflict until now.
Whereas the basic principle till today was that the parties to the
conflict must themselves arrive at a mutually-acceptable conclusion,
and the mediator states – in this case, the Minks Group and its three
co-chairs – would assist in that process and serve as the guarantors
of the implementation of any agreement, now for the first time the
idea has been expressed of a resolution without the agreement of the
parties, and perhaps even one that could go against their will.
Considering the fact that American foreign policy is customarily
developed first at the level of experts who express the ideas and
get them into circulation, after which, given some circumstances,
they get carried out as real policy, this idea is worth analysing
in some detail, even more so given that the organisation Wayne Merry
represents, the American Foreign Policy Council, has great influence
on new approaches being developed in US policy. Wayne Merry himself
is a seasoned diplomat, with a decades-long career spanning the
State Department and the Department of Defense. It is important to
emphasise that any enforcement – and, in this case, that applies to the
implementation of a forceful arbitration in a war zone – will require
the presence of a large number of “peacekeepers”. It is also clear
that many states would have interest in placing a large number of
“peacekeepers” in Nagorno-Karabakh, that is, on the northern border
of Iran.
Now let us take a look at just how new this innovative-sounding
idea by Wayne Merry is. When it comes down to it, this idea is not
new at all. In principle, the arbitration as a resolution to this
conflict was first adopted by the Paris Peace Conference (1919-1920),
and then by the League of Nations that arose from it and followed it
(1920-1946), and, naturally, it was passed on to the legal successor
of the latter, the United Nations.
Diplomats, politicians and other public figures, and experts often
refer to the Nagorno-Karabakh issue as a “frozen conflict”. This
is an absolutely accurate characterisation, but the main mistake is
that many of them measure the “freezing” from the 1990s. That is not
the case at all in reality. The conflict arose from that time when,
in 1918, the Azerbaijani Republic, such an entity being established
for the first time in history, claimed the entirety of the Baku and
Elizavetpol administrative units of the former Russian Empire without
any legal or other basis and without considering the demographics of
either of those territories. Of course, this approach was unacceptable
for the Great Powers at the Paris Peace Conference – the United States,
the British Empire, France, Italy, and Japan, as the creation of new
states and their frontiers were not to be based on the administrative
divisions of former states, but on the principle of self-determination
of peoples as brought forth by US President Woodrow Wilson.
And so, when during the first London conference of the Paris Peace
Conference (12 February to 10 April, 1920), the issue of the borders
of the Republic of Armenia was once again taken up in detail on the
16th of February,[2] it was decided to create a commission “on the
boundaries of a new independent State of Armenia” comprised of one
member each of the Great Powers.[3] Accordingly, the commission was
established on the 21st of February, 1920, with representatives of
the British Empire, France, Italy, and Japan,[4] which prepared the
“Report and Proposals of the Commission for the Delimitation of the
Boundaries of Armenia” [5] dated the 24th of February, 1920, put on
the agenda for discussion on the 27th of February.[6]
The president of that session, the Foreign Secretary of the British
Empire, Lord Curzon, in speaking of the territorial issues between
the republics of Armenia and Azerbaijan, said that, “the regions of
Karabagh, Zangezur and Nakhitchevan were in dispute. The population
there was chiefly Armenian, except for a part which was almost
wholly Tartar”.[7] I find it necessary to stress that this part
does not refer to Nagorno-Karabakh (Mountainous Karabakh), nor even
to that territory created out of a part of it later, known as the
Nagorno-Karabakh Autonomous Oblast, but to Karabakh itself, which
includes the Karabakh Plains.
This document that expressed the joint view of Britain, France, Italy,
and Japan on the borders in the southern Caucasus, called for a period
of waiting so that the parties would themselves come to an agreement,
only arbitrating on the bondaries in case of a failure of the parties
to do so:
As regards the boundary between the State of Armenia and Georgia
and Azerbaijan, the Commission considers that, it is advisable for
the present to await the results of the agreement, provided for in
the treaties existing between the three Republics, in regard to the
delimitation of their respective frontiers by the States themselves.
In the event of these Republics not arriving at an agreement respecting
their frontiers, resort must be had to arbitration by the League of
Nations, which would appoint an interallied Commission to settle
on the spot the frontiers referred to above, taking into account,
in principle, ethnographical data.
As is clear from the above, the principle of resolving by
arbitration the issue of the Armenia-Azerbaijan border, as well as the
Armenia-Georgia on, was proposed and adopted as early as the 24th of
February, 1920, by this joint document of the Great Powers. Moreover
and most importantly, the principle of delimitation was made clear:
“taking into account, in principle, ethnographical data”.
Accordingly, then, the report had a map annexed to it.[8] According to
that document, taking the demographic make-up of the South Caucasus of
1920 into account, not only was Nagorno-Karabakh (Mountainous Karabakh)
considered part of the Republic of Armenia, but so was also a large
part of the Karabakh Plains.
It is also of great importance that this document was included as
well in the Full Report of the Arbitral Award of US President Woodrow
Wilson of the 22nd of November, 1920, as document No. 2 in Annex I,
indicating that the US accepted the arbitration, the arbitral nature
and legality of this document. Those clauses were also included in
the Treaty of Sèvres (10th of August, 1920), as Article 92:
The frontiers between Armenia and Azerbaijan and Georgia respectively
will be determined by direct agreement between the states concerned.
In the either case the States concerned have failed to determine
the frontier by agreement at the date of the decision referred to in
Article 89, the frontier line in question will be determined by the
Principal Allied Powers, who will also provide for its being traced
on the spot.
map-1
map-2
In sum, one can draw the following conclusion. The proposal by Wayne
Merry to resolve the Nagorno-Karabakh conflict by arbitration is
completely acceptable and realistic, as it not only expresses the
decision already codified by Britain, France, Italy, and Japan, but
also, more importantly, is based on “ethnographical data” as democratic
a principle. Naturally, a basis for the arbitration can only be found
on the ethnographic data of 1920, because whatever happened since 1920
– the forcible occupation of the independent republics of Azerbaijan
and Armenia by the armed forces of a foreign state, the 11th Red Army,
followed by their annexation to Soviet Russia in its new veneer of
the Soviet Union – was in utter violation of international law, and,
as goes the maxim in international law, ex injuria jus non oritur –
law does not arise from injustice.
Consequently, I believe that the international community and, first
and foremost, the United States, must follow up on the proposal by
the American expert Wayne Merry and implement the decision of the
international document that already exists based on the principle of
arbitration; that is, they must compel the Republic of Azerbaijan to
withdraw its forces from the territory that belongs to the Republic of
Armenia – the Karabakh Plains and Nakhichevan (by my rough estimation,
14.000 sq.km and 5.400 sq.km, respectively).
As long as the Republic of Azerbaijan maintains its occupation of not
just 19.400 sq.km of territory of the Republic of Armenia, but also
continues to demonstrate claims towards territory of the Republic of
Armenia currently liberated from Azerbaijani occupation, there will
not be stability in the region.
Great Britain, France, Italy, and Japan, as well as the United States
of America, must not spare any efforts in implementing their very
decision as soon as possible.
Notes
1.
7c 2. Documents on British Foreign Policy 1919-1939, (ed. by R. Butler
and J. Bury) First Series, v. VII, London, 1958, pp. 81-86.
Document # 10: Consideration of the future boundaries of Armenia:
decision to appoint an Allied commission to report thereupon, Feb. 16,
1920. [hereafter, DBFP] 3. Ibid, p. 86.
4. Ibid, Document #20: Decisions of parts III and IV of the draft
synopsis of the Turkish treaty (political clauses), p. 178.
5. The entire document is available in Arbitral Award of the
President of the United States of America Woodrow Wilson: Full
Report of the Committee upon the Arbitration of the Boundary between
Turkey and Armenia, Washington, November 22, 1920, (prepared by Ara
Papian). Yerevan, 2011, pp. 98-112.
6. DBFP, Document # 34, p. 280.
7. Ibid, p. 281.
8. The map is kept in the National Archives and Records Administration
and is published in Arbitral Award of the President of the United
States of America Woodrow Wilson: Full Report of the Committee upon
the Arbitration of the Boundary between Turkey and Armenia, Washington,
November 22, 1920, (prepared by Ara Papian). Yerevan, 2011, p. 328.
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