June 8, 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” .
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 , 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 . Accordingly, the commission was established on the 21st of February, 1920, with representatives of the British Empire, France, Italy, and Japan , which prepared the “Report and Proposals of the Commission for the Delimitation of the Boundaries of Armenia”  dated the 24th of February, 1920, put on the agenda for discussion on the 27th of February .
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” . 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 . 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 (of the 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”.
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, which is more important, it is based on as democratic a principle as “ethnographical data”. 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.
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.
His Excellency Ara Papian was the Ambassador of Armenia to Canada (2000-2006). He is currently Head of the Modus Vivendi Centre, whose mission is to solve regional problems by peaceful means through International Law.