The Nagorno Karabagh Crisis:
A Blueprint for Resolution

 

A Memorandum Prepared by the

Public International Law and Policy Group

 

 

May 2000

Table of Contents

 

I.          Introduction

II.         Background

            A.        Brief History of the Conflict

                        1.         Before Sovietization

                        2.         Nagorno Karabagh Under Soviet Azerbaijani Rule: 1920-1988

                        3.         1988 to the Present

            B.         The Peace Process

                        1.         Mediation by the Russian Federation and the Commonwealth of Independent States

                        2.         Actions Taken by the United Nations Security Council

                        3.         OSCE Mediation Efforts

            C.        Identification of Strategic Interests

                        1.         Russia

                        2.         United States

                        3.         Turkey

                        4.         Iran

                        5.         Western oil companies

            D.        US Congressional Actions

III.       The Right of Self-Determination

            A.        The Meaning of Self-Determination

                        1.         International Recognition of the Principle of Self-Determination

                        2.         Who is Entitled to Self-Determination?

                        3.         Self-Determination and the Right to Independence

                        4.         The Process for Exercising the Right of Self-Determination

            B.         Nagorno Karabagh's Legal Entitlement to Self-Determination

                        1.         The Armenians of Nagorno Karabagh are a Group Entitled to Self- Determination

                        2.         Nagorno Karabagh's Right to Self-Determination includes the right to independence

IV.       A Proposed Framework for Nagorno Karabagh's Independence

A.        Phase One: Intermediate Sovereignty

            1.         Managing the Interim Arrangement and Preparing for Independence

a.         Establishing Mechanisms for Mutual Cooperation and Interaction

b.         Right to Enter into Relationships with Neighboring States and Participate in International Organizations

                                    c.         Return and Exchange of Territory

2.         Confidence Building Measures

a.         Ensuring the Right of Return for Refugees and Displaced Persons

b.         Creating a Process for Property Restitution and Exchange

c.         Adopting Laws and International Conventions Governing Respect for Minority Rights

d.         Creating Special Mechanisms to Protect Minority Rights and Free Expression of Culture

e.         Committing to Non-Violence in Resolving Disputes

3.  Third-Party Oversight and Policing

            B.  Phase Two: Earned Recognition

 

ANNEXES

            A.        About the Public International Law & Policy Group

            B.         List of Contributing Attorneys

I.  Introduction

 

            The current struggle over Nagorno Karabagh began in February of 1988 when its governing council, encouraged by perestroika and glasnost, requested to be free from the  administration of Azerbaijan.  What began as massacres of ethnic Armenians in Sumgait, became a military conflict initiated by Azerbaijan to crush Karabagh's independence movement. The result has been many thousand deaths and over 1 million refugees and displaced persons.  A cease-fire was negotiated on 12 May 1994.  Since the cease-fire, there have been no major outbreaks of violence, yet there has also been no significant movement towards creating a basis for a lasting peace.  As a consequence of the conflict, Azerbaijan and Turkey maintain a complete blockade on Armenia and Nagorno Karabagh, few refugees or displaced persons have returned to their homes, and economic and social development has remained static.  In response, the United States has limited direct governmental assistance to Azerbaijan.

 

            In an effort to make meaningful progress toward final settlement of the conflict, the OSCE reinforced a Russian mediated cease-fire and has created the Minsk peace process presently co-chaired by the United States, France and Russia, which recently put forward a proposal for a Common State -- the details of which remain confidential.  Nagorno Karabagh and Armenia accepted the Common State proposal as a basis for negotiations, while Azerbaijan has rejected the proposal.  Recently, representatives of Azerbaijan and Armenia have engaged in a number of informal meetings on the margins of OSCE and other international fora, and have indicated a willingness to engage in renewed negotiations, although the parties remain deadlocked over the precise nature of any final settlement.  Throughout this process Azerbaijan has rejected trilateral negotiations which would include representatives of Nagorno Karabagh despite the fact that the previous rounds of formal negotiations in the mid 1990's included representatives of Nagorno Karabagh.  Azerbaijan has apparently refused inclusion of Nagorno Karabagh into the talks out of concern that such participation might imply some degree of de facto status for Nagorno Karabagh.

           

            This memorandum seeks to propose a solution based upon international law and the recent precedent established in a number of other peace processes, including Bosnia, Northern Ireland, East Timor, the Middle East, and Kosovo.  In its essence, this paper proposes that the process for resolving the crisis should consist of two phases.  The first phase -- a period of three to five years, would provide Nagorno Karabagh with a level of intermediate sovereignty and require Nagorno Karabagh and Azerbaijan to comply with a number of obligations concerning the right of refugees to return and the protection of minority rights.  Nagorno Karabagh and Azerbaijan would also be obligated to engage in a number of mutual confidence building measures.  After the expiry of the interim period, an international mechanism would determine whether Nagorno Karabagh had earned international recognition based upon its performance during the interim period of de facto independence with respect to the obligations concerning respect for fundamental principles of international law, including those relating to the protection of minority rights, democratic processes of governance and economic organization, and the protection of human rights.  The interest of the people of Nagorno Karabagh in independence would be reconfirmed by a referendum.

 

            The intermediate sovereignty/earned recognition proposal is designed to produce a phased resolution of the crisis with clear benchmarks for measuring compliance by the parties.  If adopted and properly implemented, the proposal should lead to a final settlement that promotes peaceful relations between Azerbaijan, Nagorno Karabagh and Armenia.  A peaceful final settlement should also lead to the lifting of the Azerbaijani and Turkish economic embargo against Armenia and Nagorno Karabagh and the lifting of United States restrictions on assistance for Azerbaijan, and it could ensure the stability necessary for continued economic development by American and European interests in Azerbaijan, Armenia, and Nagorno Karabagh, particularly in the oil sector.  Resolution of the conflict would provide a basis for improved relations between Armenia and Turkey, which would be in the strategic interests of the United States and its European allies.

 

            The following sections of the memorandum include a brief description of the history of the conflict and the efforts of the international community to resolve the conflict, the articulation of the international legal principles governing disputes of this nature, and a detailed proposal for a process of intermediate sovereignty/earned recognition with reference to comparable precedents.

II.  Background

 

A.  Brief History of the Conflict

 

            1.  Before Sovietization

 

            Nagorno Karabagh is historic Armenian territory which, in different eras, has formed part of Armenia.  Its Armenian roots reach back to before the first millennium BC.  Armenian princely dynasties successively presided over Karabagh, guaranteeing its sovereignty through treaty arrangements with neighboring powers.

 

            The Russian Empire, expanding southwards in the Transcaucasus, annexed Karabagh in 1805.  This action was officially recognized by Persia in the Treaty of Gulistan in 1813.  After the 1917 Russian revolutions and the collapse of Tsarist rule, there emerged in 1918 the briefly independent Republics of Armenia and Azerbaijan.  The dispute over Nagorno Karabagh between the Karabagh Armenians and Azerbaijan, on whose side the Ottoman Turkish army intervened, dates from this period.

 

            In July 1918, the First Armenian Assembly of Nagorno Karabagh declared the region self-governing and created a National Council and government. The size of Nagorno Karabagh was then significantly greater than the portion that subsequently became the Nagorno Karabagh Autonomous Oblast.  In August 1919, the Karabagh National Council entered into a provisional treaty agreement with the Azerbaijani government. Despite signing the Agreement, the Azerbaijani government continuously violated the terms of the treaty.  This culminated in March 1920 with the Azerbaijanis' massacre of Armenians in Karabagh's former capital, Shushi, in which it is estimated that more than 20,000 Armenians were killed.  In this light, the Ninth Karabagh Assembly nullified the treaty in whole and pronounced union with Armenia.

 

            From 1918 to 1920 Nagorno Karabagh possessed all necessary attributes of statehood, including an army and legitimate authorities.  The League of Nations and the leading world powers recognized the disputed status of Nagorno Karabagh.  The League of Nations neither recognized the sovereignty of the Azerbaijan Republic over Karabagh nor accepted the Azerbaijan Republic as its member-state.

 

            In 1918, 330,000 Armenian people lived within the then-existing borders of Nagorno Karabagh.  They made up 95 percent of its population, with 3 percent Azerbaijanis and 2 percent others.  As a result of the Turkish-Azerbaijani aggression in 1918-1920 aimed at total cleansing of the Armenians of Nagorno Karabagh, an estimated 20 percent of all Armenians were killed.

 

            2.  Nagorno Karabagh Under Soviet Azerbaijani Rule: 1920-1988

 

            The violent conflict in the Caucasus ended with the Sovietization of the Caucasian republics.  On November 30, 1920 the Sovietized government of Azerbaijan recognized Nagorno Karabagh as a part of Armenia, but then reversed this decision several days later.

 

            On March 16, 1921, a treaty between republican Turkey and Soviet Russia determined that Nagorno Karabagh and Nakhichevan were to be under the authority of the Soviet Azerbaijan.  On June 12, 1921 the government of Soviet Armenia declared Nagorno Karabagh as its integral part on the basis of the repeatedly expressed will of its population.

 

            On July 5, 1921 the Caucasus Bureau of the Russian Communist Party adopted a political decision to annex Armenian-populated Nagorno Karabagh to Soviet Azerbaijan, thus laying the foundation for the Stalinist practice of gerrymandering in Transcaucasia.  Stalin decided that Nagorno Karabagh should be included as an autonomous region within the boundaries of the Soviet Republic of Azerbaijan, in consideration of the necessity of national harmony between Muslims and Armenians, of the economic tie between Upper and Lower Karabagh, and its permanent relationship with Azerbaijan.

 

            In 1923, Nagorno Karabagh had a population of almost 158,000, 95 percent of which were Armenians.  On July 7, 1923, Soviet Azerbaijan's Revolutionary Committee resolved to dismember Karabagh and to create on part of its territory the Autonomous Region (oblast) of Nagorno Karabagh.  From 1924 to 1929, an uncertain jurisdiction called "Red Kurdistan" was established, with the intent of effectively separating Nagorno Karabagh from Armenia.  In 1930, the Kurdish autonomous area was abolished, but the artificial buffer between Armenia and Karabagh, the Lachin and Kelbajar districts (regions), was retained.  Stalin's 1936 Constitution sealed this territorial arrangement.

 

            This separation became a subject of continual protest -- from both Nagorno Karabagh and Armenia -- which was expressed periodically in the form of petitions to Moscow.  Furthermore, in September 1966, the Soviet Armenian leadership petitioned the central authorities to examine the question of returning Karabagh to Armenia.  In addition to the petitions, by the late 1960s there were mass protests held in Karabagh, which led to a large scale crackdown on Armenian activists.

 

            3.  1988 to the Present

 

            The current struggle over Nagorno Karabagh began in February of 1988 when the Karabagh Armenians, encouraged by perestroika and glasnost, began to take steps to break free of Azerbaijani control.  On February 20, 1988, the Decision of the Nagorno Karabagh Autonomous Oblast (NKAO) Regional Soviet of People's Deputies, which was addressed to the highest legislative bodies of the Supreme Soviets of Armenia, Azerbaijan and the USSR, contained the official request to consider and resolve positively "the question of handing over the NKAO from the Soviet Azerbaijan to the Soviet Armenia."

 

            The response within Azerbaijan was brutal acts of violence organized by Azerbaijani nationalists with the tacit support of the secret police directed against the Armenian civilian population.  On February 26, 1988, the international community witnessed the massacre of Armenians in Sumgait, the third largest city of Azerbaijan and its second largest industrial center.  Individual Armenians were attacked in their homes, at their businesses and on the streets.  Azerbaijani authorities exerted no effort to apprehend or prosecute the perpetrators.

 

            On June 13, 1988, the Supreme Soviet of the Azerbaijani SSR denied the application of the Karabagh Assembly.  This was counterbalanced on June 15 by Armenia's Supreme Soviet, which approved Karabagh's proposal and appealed to the Soviet government to resolve the matter.

 

            On July 18, 1988, the USSR Supreme Soviet, relying on Article 78 of the Soviet Constitution, which prohibited any territorial changes to a Union republic without its consent, decided to leave Nagorno Karabagh within the structure of Soviet Azerbaijan.  However, by the March 24, 1988, resolution of the Central Committee of the Communist Party of the Soviet Union Arkadi Volsky was appointed Moscow's authorized representative in the territory.  Beginning on January 20, 1989, the Supreme Soviet established a special authority in Nagorno Karabagh, headed by Volsky, which was directly subject to the USSR government.  In the summer of 1989 a legislative body, named the National Council was formed which represented all strata of the Nagorno Karabagh population.

 

            The USSR Supreme Soviet's resolution of November 28, 1989, liquidated the "Volsky Committee."  Three days later, on December 1, 1989, at the joint session of Parliaments of Armenia and Nagorno Karabagh the reunification was accepted.  Soon after, the NKAO legislative body voted in favor of secession from Azerbaijan.  The Supreme Soviet of Azerbaijan quickly rejected the decision as illegal, and the Presidium of the Supreme Soviet of the Union declared it null and void.

 

            In 1989, according to the official USSR census, Nagorno Karabagh had 189,000 inhabitants, of whom 76.9 percent were Armenians and 21.5 percent were Azerbaijanis.

 

            On January 15, 1990, a USSR Supreme Soviet decision installed Soviet Azerbaijan's "Republic Organizational Committee" (Orgkom).  The stated purpose of this body was to reestablish the erstwhile local "soviets" of Nagorno Karabagh.  In reality, though, the Committee, under the direction of Azerbaijani Communist Party deputy leader Viktor Polianichko, schemed to do away with Karabagh's autonomy.  Polianichko aimed to resolve the issue by ridding Karabagh of its Armenian majority.  Therefore, he artificially increased the size of the Azerbaijani community in Nagorno Karabagh.  This was combined with concerted military actions.  From January to May 1991, the inhabitants of 24 Armenian villages in Nagorno Karabagh were forcibly driven from their homes.  As a consequence Soviet Azerbaijan placed more than half of Nagorno Karabagh's territory under military occupation.

 

            On August 30, 1991, Soviet Azerbaijan's Supreme Soviet adopted its "Declaration on re-establishment of the national independence of the Azerbaijani Republic."  Four days later Nagorno Karabagh initiated the same process through the joint adoption of the "Declaration of the Republic of Nagorno Karabagh" by the local legislative councils of Nagorno Karabagh and the bordering Armenian-populated Shahumian district.  The only difference was that, for Karabagh, independence was declared not from the Soviet Union but from Azerbaijan.  This act fully complied with existing law.  Indeed, the 1990 Soviet law titled "Law of the USSR Concerning the Procedure of Secession of a Soviet Republic from the USSR," provides that the secession of a Soviet republic from the body of the USSR allows an autonomous region and compactly settled minority regions in the same republic's territory also to trigger its own process of independence.[1]

 

            On October 18, 1991, the Azerbaijani Republic confirmed its own independence by adoption of its "Constitutional Act" on national independence, and in November the Supreme Soviet of Azerbaijan adopted a resolution on the "Abolition of the Nagorno Karabagh Autonomous Oblast."  Azerbaijani President A. Mutalibov then signed the law on dissolution of the Nagorno Karabagh Autonomous Region on November 23, 1991.  Following the adoption of this resolution, the Azerbaijani parliament redrew Nagorno Karabagh's borders in favor of neighboring Azerbaijani districts, and changed the names of its cities and villages.  In so doing, Baku flouted Articles 86 and 87 of the Soviet Constitution, which codified autonomous region status for Nagorno Karabagh and prohibited any change therein without its consent, and also violated its own law.  This decision was designed to prevent Nagorno Karabagh from using the relevant articles of Soviet law to legally separate from Azerbaijan, as well as a way to more directly manipulate Karabagh's demography through territorial gerrymandering, forced depopulation and resettlement.

 

            On November 27, 1991, the USSR Constitutional Oversight Committee's resolution deemed unconstitutional the Orgkom created by the Supreme Soviet decision of January 15, 1990, as well as the November 23, 1991 Azerbaijani decision abolishing Karabagh's autonomy.  It also revoked the December 1, 1989, Armenian resolution on reunification. 

 

            The actions of the USSR Constitutional Oversight Committee did not, however, annul the joint decision of the NKAO and Shahumian district to declare the establishment of the Nagorno Karabagh Republic on September 2, 1991, since that declaration was deemed in compliance with the then existing law. ( The April 3, 1990 "Law of the USSR Concerning the Procedure of Secession of a Soviet Republic from the USSR," provides autonomous entities and compactly settled ethnic minorities living in a seceding republic's territory with the right of self determination, to be confirmed with a referendum.  The Nagorno Karabagh Republic was proclaimed on the basis of the referendum provided under this law by the NKAO and Shahumian district after the announcement of Azerbaijan's independence on August 30, 1991.)

 

            On December 10, 1991, the Nagorno Karabagh Republic held its own referendum on independence in the presence of international observers.  The vote overwhelmingly approved Karabagh's sovereignty.  This action of Nagorno Karabagh, which at that time was part of a still existent and internationally recognized Soviet Union, corresponded fully with the relevant Soviet law pertaining to leaving the USSR.  As an initial step along the path to full sovereignty, the newly independent Nagorno Karabagh Republic created legitimate government institutions.  On December 28, 1991, elections took place for its parliament, and on January 6, 1992, the newly convened parliament of Karabagh adopted its Declaration of Independence on the basis of the referendum results.

 

            The reaction from Azerbaijan, which physically surrounded Karabagh and its capital, Stepanakert, was to commence a campaign of indiscriminant bombardment and shelling of the Karabagh Armenians and to launch a series of ground attacks.  Azerbaijani attacks commenced in early 1991, with mass bombardment of Stepanakert and other towns and villages.  By the summer of 1992, Azerbaijan had seized and occupied about half the territory of the Nagorno Karabagh Republic and forcibly dislocated and displaced the Armenian inhabitants. 

 

            The Karabagh Armenians organized an army and undertook military operations which allowed them to seize Azerbaijani-held areas used to launch attacks on Stepanakert and nearby towns, and to break the Azerbaijani-imposed blockade of Karabagh by establishing a ground connection to Armenia.

 

            On May 8, 1992, the Karabagh Defense Forces took the strategically important town of Shushi, from which the Azerbaijanis had been shelling Stepanakert.  On May 18, they established a land link with Armenia across the Lachin region, thus breaking the blockade on Karabagh.  In the summer of 1992 Azerbaijan occupied approximately 60% of the territory of Nagorno Karabagh and displaced the population.

 

            Facing continuing efforts by the Azerbaijani forces aimed at the destruction of the Karabagh Armenians, Nagorno Karabagh reached out to the international community.  It then prepared for a limited counteroffensive to secure for its inhabitants some level of safety.  At the same time, Nagorno Karabagh moved ahead with establishing itself as the first fully functioning democracy in the region.

 

            On September 20, 1992, the Nagorno Karabagh parliament petitioned the United Nations, the Commonwealth of Independent States, and individual countries for recognition of the Nagorno Karabagh Republic.

 

            On March 27, 1993, the Karabagh Defense Forces, responding to an Azerbaijani spring offensive, launched counterattacks at two strategic Azerbaijani cities, Kelbajar and Fizuli.  The capture of Kelbajar on April 3 freed Karabagh from Azerbaijani attacks on its North and West.  From July 23 to September 4, 1993, Karabagh Defense Forces took control of Agdam, Fizuli, Jebrail, and Horadiz, in order to acquire sufficient territory to create a buffer zone for civilians against any indiscriminate attacks of the Azerbaijani army.  From December 22, 1993, to May 1994, the re-formed Azerbaijani army launched new unsuccessful attacks on Karabagh. 

 

            At this time, Azerbaijan continues to occupy all of the Shahumian district, as well as parts of the Mardakert and Martuni districts of the Nagorno Karabagh Republic, while the latter controls parts of Azerbaijan seized for defensive purposes.

 

            Following a negotiated cease-fire,  Nagorno Karabagh has continued to demonstrate to the international community its ability to maintain and promote highly developed governmental institutions, political parties, and free local and parliamentary elections.  On December 28, 1994, the Nagorno Karabagh Parliament adopted a resolution establishing the post of President of the republic.  In the presence of international observers the legislature elected Robert Kocharian president pro tempore.  Two years later, on November 24, 1996, national elections were held and Robert Kocharian was reelected president by popular vote, with the presence of international observers.  After Robert Kocharian accepted the position of Prime Minister of Armenia, new Presidential elections were held in August 1997, with former Foreign Minister Arkady Ghoukasian elected for a five year term.

 

B.  The Peace Process

 

            1.  Mediation by the Russian Federation and the Commonwealth of Independent States

 

            In late 1991, Russia offered to mediate the dispute between Nagorno Karabagh and Azerbaijan.  The presidents of Russia and Kazakhstan, Boris Yeltsin and Nursultan Nazarbayev, visited Nagorno Karabagh and, thereafter, a joint declaration was signed by representatives of Armenia