By Levon Chorbajian

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 for the rejection 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.