Ar­me­nia is sim­ply wrong: This is what law and history say

Daily Sabah (Turkey) - - Opinion - FERHAT KÜÇÜK* * Istanbul-based lawyer, Ph.D. stu­dent in con­sti­tu­tional law at Mar­mara Univer­sity

The Nagorno-Karabakh con­flict re­cently flared up again be­tween Ar­me­nia and Azer­bai­jan when Ar­me­nia killed Azer­bai­jani sol­diers and tar­geted civil­ians. Azer­bai­jani peo­ple took to the streets to protest the at­tacks of Ar­me­nia. The on­go­ing Nagorno-Karabakh con­flict be­tween the two coun­tries for three decades, lead­ing to clashes at times, is yet to be re­solved. So, what ex­actly is the Nagorno-Karabakh con­flict about?

While the Ot­toman Em­pire, which was in the Cen­tral Pow­ers that lost World War I, with­drew from Baku, the Bri­tish armies en­tered the city in Novem­ber 1918. The then-Bri­tish Army Com­man­der-in-Chief Gen­eral Thom­son, the rep­re­sen­ta­tive of the Al­lied pow­ers, stated that the moun­tain­ous parts of Nagorno-Karabakh should be left to Azer­bai­jan after a series of ne­go­ti­a­tions with the Azer­bai­jani govern­ment.

Founded by the Azer­bai­jan Demo­cratic Re­pub­lic in Jan­uary 1919 and con­sist­ing of the uyezds (ad­min­is­tra­tive-re­gional units of Tsarist Rus­sia) of Shusha, Ja­van­shir, Jabrayil and Zangezur, the pro­vi­sional Nagorno-Karabakh gov­er­norate was rec­og­nized by the Al­lied pow­ers, rep­re­sented by Gen. Thom­son, in April 1919.

Khos­rov bey Sul­tanov was ap­pointed Gu­ber­na­tor (Gov­er­nor) of Nagorno-Karabakh in Jan­uary 1919 and took of­fice in Fe­bru­ary 1919. Ar­me­ni­ans liv­ing in the re­gion de­clared their recog­ni­tion of the Azer­bai­jani govern­ment after the sev­enth congress of the Ar­me­ni­ans of NagornoKar­abakh, held on Aug. 26, 1919.

Another le­gal claim of the Ar­me­nian side re­gards the prin­ci­ple of “the self-de­ter­mi­na­tion of the peo­ple” of in­ter­na­tional law and the Union of Soviet So­cial­ist Re­publics (USSR) law dated April 3, 1990, on “Is­sues Re­gard­ing the Se­ces­sion of the Union Re­publics from the USSR.” As we men­tioned at the begin­ning, the de­ci­sion made by the 110 mem­bers of the Nagorno-Karabakh Au­ton­o­mous Oblast (NKAO) lo­cal council af­fil­i­ated with Azer­bai­jan on Feb. 20, 1988, was about se­ces­sion from the Azer­bai­jani Soviet So­cial­ist Re­pub­lic and uni­fi­ca­tion with the Ar­me­nian Soviet So­cial­ist Re­pub­lic.

How­ever, the Supreme Council and the Pres­i­den­tial Tri­bunal of the USSR an­nounced that the sep­a­ra­tion of the NKAO from the Azer­bai­jani SSR and uni­fi­ca­tion of it with the Ar­me­nian SSR was un­ac­cept­able in ac­cor­dance with Ar­ti­cle 78 of the Con­sti­tu­tion of the USSR and Ar­ti­cle 70 of the Con­sti­tu­tion of the Azer­bai­jani SSR.

As per Ar­ti­cle 78 of the Con­sti­tu­tion of the USSR, the bor­ders of the union re­publics can­not be changed with­out the con­sent of that same re­pub­lic. Chang­ing the bor­ders be­tween the union re­publics is pos­si­ble only with the con­sent of the re­publics in ques­tion and the ap­proval of the USSR. This prin­ci­ple is also present in the re­spec­tive con­sti­tu­tions of Azer­bai­jani SSR and Ar­me­nian SSR.

After this process, the congress of the ex­ec­u­tive del­e­gates of the peo­ple of NKAO an­nounced that they re­fused to rec­og­nize the au­ton­omy of the Azer­bai­jani SSR with the ini­tia­tives of the Ar­me­nian SSR, and then de­clared an “In­de­pen­dent Union Ter­ri­tory” where the con­sti­tu­tion of the Azer­bai­jan SSR was deemed void. There were many un­con­sti­tu­tional de­ci­sions is­sued at that time by the supreme leg­isla­tive body of the Ar­me­nian SSR, but the most im­por­tant of them is the de­ci­sion re­gard­ing the uni­fi­ca­tion of the Ar­me­nian SSR with the Nagorno-Karabakh on Dec. 1, 1989. The fact that Ar­me­nia men­tions six prov­inces in the east of Tur­key as “Western Ar­me­nia” in the Dec­la­ra­tion of In­de­pen­dence in its cur­rent con­sti­tu­tion is proof that an ir­re­den­tist un­der­stand­ing still per­sists.

In all the de­ci­sions made by the au­tho­rized in­sti­tu­tions of the USSR (es­pe­cially the de­ci­sions dated Jan. 10, 1990 and March 3, 1990), it was clearly stated that the border be­tween the Azer­bai­jani SSR and the Ar­me­nian SSR could not be changed in any way. After the dis­so­lu­tion of the USSR and the in­de­pen­dence of Azer­bai­jani and Ar­me­nian SSRs, the prob­lem is now the sub­ject of in­ter­na­tional law and in­ter­na­tional in­sti­tu­tions.

The re­gion cov­ered by the NKAO re­mained a part of Azer­bai­jan un­til Nov. 26, 1991, when Azer­bai­jan de­clared its full in­de­pen­dence. After the dis­so­lu­tion of the USSR, in ac­cor­dance with the prin­ci­ple of “uti pos­side­tis ju­ris” (re­spect for ter­ri­to­rial in­tegrity) of in­ter­na­tional law, with the dec­la­ra­tion of in­de­pen­dence of the Re­pub­lic of Azer­bai­jan and its recog­ni­tion in the in­ter­na­tional arena, Nagorno-Karabakh and its sur­round­ing re­gions were ac­cepted within the bor­ders of the Azer­bai­jan Re­pub­lic.

THE QUES­TION IN THE U.N.

After the Re­pub­lic of Azer­bai­jan gained its in­de­pen­dence, it was ad­mit­ted as a mem­ber of the United Na­tions on March 2, 1992. The U.N. treaty de­fines one of the main tasks of the U.N. in Clause 1 of Ar­ti­cle 1 as fol­lows: “To pro­tect in­ter­na­tional peace and se­cu­rity, and for this pur­pose, to pre­vent and void the threats to peace, to take ef­fec­tive joint mea­sures to sup­press acts of ag­gres­sion or other dis­tur­bance of peace, and to cor­rect or set­tle in­ter­na­tional con­flicts or sit­u­a­tions that may lead to the break­down of peace through peace­ful means, and in ac­cor­dance with jus­tice and the prin­ci­ples of in­ter­na­tional law.”

The U.N. Se­cu­rity Council (UNSC) can in­ves­ti­gate prob­lems only in the fol­low­ing cases: When the prob­lem­atic states them­selves or other states ap­ply for the so­lu­tion for the prob­lem, when the Gen­eral Assem­bly rec­om­mends an in­ves­ti­ga­tion, when the council it­self de­cides and when the U.N. sec­re­tary-gen­eral ap­plies for one.

The UNSC may re­quest the par­ties to re­solve the is­sue peace­fully (Ar­ti­cle 33). Apart from this, the council has the right to con­duct re­search in­de­pen­dently on is­sues that threaten in­ter­na­tional peace and se­cu­rity (Ar­ti­cle 34). If the par­ties can solve this prob­lem them­selves after the prob­lem is sub­mit­ted to the UNSC for res­o­lu­tion, the council closes the rel­e­vant file. Ac­cord­ing to Ar­ti­cle 39 of the U.N. Con­sti­tu­tion, the UNSC de­ter­mines whether peace is threat­ened, bro­ken or there is an act of ag­gres­sion and makes rec­om­men­da­tions for the pro­tec­tion or reestab­lish­ment of in­ter­na­tional peace and se­cu­rity or de­cides what mea­sures will be taken in ac­cor­dance with Ar­ti­cles 41 and 42. The UNSC may ad­vise the states that are par­ties to the con­flict that may jeop­ar­dize in­ter­na­tional peace, but if the states ap­ply to the U.N. for the res­o­lu­tion of the prob­lem, the nec­es­sary mea­sures can be im­ple­mented.

If the par­ties can­not solve their own prob­lems de­spite the rec­om­men­da­tions of the UNSC and if this poses a danger to in­ter­na­tional peace and se­cu­rity, com­pul­sory mea­sures can also be taken.

In ac­cor­dance with the U.N. Char­ter, the UNSC has am­ple fa­cil­i­ties to re­solve prob­lems peace­fully. In this con­text, tak­ing into ac­count that Ar­me­nia openly con­tin­ues its oc­cu­pa­tion of the Azer­bai­jani ter­ri­to­ries, Azer­bai­jan ap­plied to the U.N. Sec­re­tary-Gen­eral and the UNSC pres­i­dency, ask­ing for help to stop Ar­me­nia’s overt en­croach­ment of Azer­bai­jan, to pre­vent the ex­plicit breach of in­ter­na­tional law and the rel­e­vant ar­ti­cles of the U.N. Con­sti­tu­tion, and to re­solve the prob­lem peace­fully.

The U.N. sec­re­tary-gen­eral de­cided to send an ob­server group to check the sit­u­a­tion in the re­gion. For this pur­pose, in March 1992, a del­e­ga­tion headed by Cyrus Vance, the spe­cial en­voy of the U.N. sec­re­tary-gen­eral, vis­ited Baku, Nagorno-Karabakh and Yere­van and in­formed the UNSC of the re­sults of this visit.

Nagorno-Karabakh re­mains one of the im­por­tant is­sues of the Cau­ca­sus and to some ex­tent the world to­day. At­tempts to re­solve the is­sue con­tinue within the frame­work of the Or­ga­ni­za­tion for Se­cu­rity and Co-oper­a­tion in Europe’s (OSCE) Minsk Group and in other plat­forms.

In order for the at­tempts to re­solve the prob­lem to be suc­cess­ful and to find a per­ma­nent so­lu­tion, it is nec­es­sary to know in de­tail the history of the prob­lem and the at­tempts made to re­solve it so far and to re­veal the true na­ture of the is­sue.

THE ROOTS OF THE CRI­SIS

Look­ing at the history of the prob­lem, we can see that its roots are based on the poli­cies of the great pow­ers re­gard­ing the re­gion and eth­nic mi­gra­tions in the re­gion within this frame­work.

There were Ar­me­nian and Azer­bai­jani (also re­ferred to as Azer­bai­jani Turks or Mus­lims) pop­u­la­tions in the state struc­tures that ex­isted in the re­gion in pre­vi­ous pe­ri­ods, but there were no eth­nic wars. The agree­ments signed by Rus­sia as a re­sult of its wars with the Ot­tomans and Iran in the first half of the 19th cen­tury formed im­por­tant stages in chang­ing the eth­nic struc­ture of the re­gion. The Treaty of Turk­men­chay of 1828, signed be­tween Rus­sia and Iran, stip­u­lated the mi­gra­tion of hundreds of thou­sands of Ar­me­ni­ans liv­ing in Ira­nian ter­ri­tory to the NagornoKar­abakh re­gion, which would come un­der Rus­sia’s con­trol, and to present-day Ar­me­nia.

As part of the Treaty of Adri­anople, signed be­tween the Ot­tomans and Rus­sians in 1829, about 84,000 Ar­me­ni­ans were brought to the NagornoKar­abakh re­gion. Ac­cord­ing to a pro­posal by Rus­sian his­to­ri­ans, which is now con­sid­ered the most reli­able source on th­ese pe­ri­ods, around a mil­lion Ar­me­ni­ans were re­set­tled in the ter­ri­tory of present-day Ar­me­nia and the Nagorno-Karabakh re­gion by the mid-1800s.

After the cre­ation of re­gions mostly pop­u­lated by Ar­me­ni­ans in the Cau­ca­sus, an Ar­me­nian state was es­tab­lished in the early 1900s as a se­cond phase. The early 1990s were no­table for two things in terms of this sub­ject mat­ter.

Due to the fact that the ex­ist­ing ad­min­is­tra­tions in Azer­bai­jan were ill-dis­posed to found­ing a na­tional army, although Ar­me­nia had a na­tional army, Ar­me­nian troops oc­cu­pied about 5% of the Azer­bai­jani ter­ri­tory.

In this process, the mas­sacre car­ried out by the Ar­me­nian forces in the Kho­jaly re­gion of Azer­bai­jan on Feb. 25-26, 1992, with the sup­port of the Rus­sian mil­i­tary unit No. 366 in the re­gion caused a strong re­ac­tion from many for­eign states and in­ter­na­tional or­ga­ni­za­tions, but no ac­tion was taken against those who com­mit­ted this mas­sacre.

As a re­sult, un­til the end of 1993, Ar­me­nia con­tin­ued to in­vade Azer­bai­jani ter­ri­to­ries, and the UNSC con­tin­ued to take res­o­lu­tions de­mand­ing an end to th­ese oc­cu­pa­tions. Mean­while, at­tempts to re­solve the prob­lem have con­tin­ued at the level of var­i­ous in­ter­na­tional or­ga­ni­za­tions.

The OSCE Minsk Group was founded as the most au­thor­i­ta­tive body in this re­gard. As a re­sult of the spe­cial ini­tia­tives of the Minsk Group and Rus­sia, a series of agree­ments were signed be­tween Azer­bai­jan and Ar­me­nia in May 1994, stip­u­lat­ing a cease-fire. From May 1994 to the present, this cease-fire has been main­tained, although it has been vi­o­lated oc­ca­sion­ally.

At­tempts to re­solve the prob­lem through the cease-fire have been car­ried out through var­i­ous in­ter­na­tional or­ga­ni­za­tions and var­i­ous states, in­clud­ing the Minsk Group.

Among th­ese ef­forts, the most im­por­tant were the three peace plan pro­pos­als of­fered by the OSCE Minsk Group to the par­ties. Con­sid­er­ing that the per­spec­tives of the Azer­bai­jani and Ar­me­nian public on the prob­lem are com­pletely op­po­site to­day, the dif­fi­culty of find­ing a so­lu­tion to the is­sue is un­der­stood bet­ter.

When we look at the at­tempts of in­ter­na­tional or­ga­ni­za­tions to re­solve the prob­lem, we see an or­ga­ni­za­tion that strives to struc­ture the world order in ac­cor­dance with the rules of in­ter­na­tional law, but in fact, can­not make in­de­pen­dent de­ci­sions, con­ducts the af­fairs of big states and acts in line with the in­ter­ests of big states.

Among in­ter­na­tional or­ga­ni­za­tions, the Or­gan­i­sa­tion of Is­lamic Co­op­er­a­tion (OIC) is the only or­ga­ni­za­tion that un­con­di­tion­ally rec­og­nizes the Re­pub­lic of Ar­me­nia as an ag­gres­sive state in all its de­ci­sions and upholds the ter­ri­to­rial in­tegrity of Azer­bai­jan in the same de­ci­sions.

How­ever, since the OIC does not have any au­thor­ity to im­ple­ment th­ese de­ci­sions, it could only pro­vide po­lit­i­cal and fi­nan­cial sup­port to Azer­bai­jan. Res­o­lu­tions 822, 853, 874 and 884 adopted by the UNSC were res­o­lu­tions that could be key to solv­ing the prob­lem. Although th­ese res­o­lu­tions did not in­clude sen­tences stat­ing that Ar­me­nia had en­tered Nagorno-Karabakh, the ter­ri­to­rial in­tegrity of Azer­bai­jan was rec­og­nized and the mil­i­tary units oc­cu­py­ing Nagorno-Karabakh were re­quested to leave th­ese ter­ri­to­ries. Although it had enough sanc­tion power for the im­ple­men­ta­tion of th­ese res­o­lu­tions, the UNSC re­mained si­lent in the face of Ar­me­nia’s im­ple­men­ta­tion of th­ese res­o­lu­tions.

Mean­while, the OSCE, de­spite sign­ing many so­lu­tion plans to re­solve the Nagorno-Karabakh con­flict, failed; and although it pre­vi­ously did promis­ing work, it came out with its fail­ures and con­tin­ues to fail. Two of the three de­ci­sions pre­pared by the OSCE Minsk Group and of­fered to the par­ties were not ac­cepted by Ar­me­nia and only one was ac­cepted by Azer­bai­jan.

Given ev­ery­thing done to pre­pare plans that were not ac­cepted and to pro­pose in­con­clu­sive opin­ions, it would mean des­per­ately wait­ing for a failed re­sult to rely on the OSCE for the so­lu­tion of the prob­lem. As men­tioned in the in­tro­duc­tion, the Nagorno-Karabakh con­flict can only be re­solved at the re­quest of ma­jor states. In­ter­na­tional or­ga­ni­za­tions are in­ef­fec­tive in the face of the poli­cies of the great pow­ers that are striv­ing to have a say in the re­gion.

WHAT’S THE RE­SULT?

Based on this new but lim­ited ap­proach of the U.N. treaty, the is­sues of self-de­ter­mi­na­tion and the end of colo­nial­ism have been con­stantly dis­cussed in the bod­ies of the or­ga­ni­za­tion, as well as ef­forts made to clar­ify the pro­vi­sions of the treaty. The or­ga­ni­za­tion has taken both gen­eral de­ci­sions in­ter­pret­ing the pro­vi­sions of the treaty and adopted an at­ti­tude and be­hav­ior that ex­plic­itly aimed at end­ing colo­nial­ism in the face of in­di­vid­ual events. The U.N. im­ple­men­ta­tion was in line with the recog­ni­tion of self-de­ter­mi­na­tion as a rule stip­u­lat­ing rights and li­a­bil­ity. This prin­ci­ple was turned into a right with the uni­form de­ci­sions made by the Gen­eral Assem­bly after the de­col­o­niza­tion move­ments of the U.N. since the late 1950s. Ac­cord­ing to the U.N.’s Dec­la­ra­tion on the Grant­ing of In­de­pen­dence to Colo­nial Coun­tries and Peo­ples, all the peo­ple have the right to self-de­ter­mi­na­tion and, thanks to this right, they freely de­ter­mine their po­lit­i­cal sta­tus and freely try to achieve their own eco­nomic, so­cial and cul­tural de­vel­op­ment. This ar­ti­cle rec­og­nizes self-de­ter­mi­na­tion for all peo­ples.

Ar­ti­cle 1 em­pha­sizes that the sub­jec­tion of peo­ples to for­eign op­pres­sion, sovereignt­y and ex­ploita­tion is against fun­da­men­tal hu­man rights, the U.N. treaty and in­ter­na­tional peace and co­op­er­a­tion, and it lim­its the sub­ject of self­de­ter­mi­na­tion to the colo­nial peo­ples.

Ar­ti­cle 6 of the dec­la­ra­tion states that any at­tempt to par­tially or com­pletely dis­rupt the na­tional unity and in­tegrity is against the U.N. treaty. In this frame­work, ac­cord­ing to Ar­ti­cle 2, the user of the right to self-de­ter­mi­na­tion, de­fined as the right for peo­ple to “freely de­ter­mine their po­lit­i­cal sta­tus and freely achieve their own eco­nomic, so­cial and cul­tural de­vel­op­ment,” is that of all the peo­ple of the colo­nial coun­try, and the bor­ders of the colo­nial coun­try are the bor­ders of the in­de­pen­dent state founded.

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