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By Murad Gassanly

The focus of much of the debate on the current state of the Karabakh peace process is firmly centred on what is known as Madrid Principles – a set of proposals put forward by international mediators which are hoped to provide a firm basis for a final agreement in the on-going Armenian-Azerbaijani conflict over the disputed territory of Nagorno Karabakh. This debate proceeds despite the fact that the Principles have not been officially disclosed or published.

This is not surprising. The peace process led by the OSCE Minsk Group for the past 16 years has been characterised by an almost pathological secrecy, non-transparency and total lack of democratic public scrutiny. The people of Armenia and Azerbaijan have been left totally excluded from the process, whilst negotiations were carried out by an ever-changing cast of international mediators from Russia, USA and France (the OSCE Minsk Group co-chairs), behind closed doors and in the back-rooms and corridors, during major summits and leaders’ gatherings. This approach betrays a rather condescending and patronising attitude of elites in both Azerbaijan and Armenia and their international counterparts, who view the people as a problem rather than a solution. More ominously, by excluding the societies in warring states, the Minsk Group engendered much cynicism and mistrust of the peace process in both countries, making solution more difficult in the long run.

When they were leaked to the public more than two years ago, Madrid Principles, not surprisingly, were received ambiguously by populations long accustomed to announcements of “historic breakthroughs” and “major agreements” which never come to fruition. Yet, unlike previous initiatives, Madrid Principles continue to receive much attention and the document is increasingly seen both domestically and internationally as the best chance for a final deal on Karabakh. Secretary of State Hilary Clinton on her visit to Azerbaijan and Armenia earlier this month once again reiterated US support for Madrid Principles.

Whilst most of the details remain unknown what is known is that Madrid Principles is the only document to emerge from 16 years of negotiations and is based on the provisions of Helsinki Final Act of 1975 (hereafter HFA) – the governing legal document of the OSCE, the organisation in charge of the peace process and of which both Armenia and Azerbaijan are member-states.

Non-use of force, territorial integrity and self-determination of peoples are the three key elements of Madrid Principles and these correspond respectively to Article II of HFA (Refraining from the threat or use of force), Article IV (Territorial integrity of States) and Article VIII (Equal rights and self-determination of peoples). The Helsinki Final Act is a major piece of international law that served as a basis for many treaties and agreements, including the Dayton Peace Accords and the recent Armenian-Turkish Protocols. There are ten Articles constituting the HFA and the choice of this or that article essentially sets a framework within which proposed agreements or treaty may be interpreted and establishes parameters for the implementation of any such deal.

What is striking about discussions around Madrid Principles is the total lack of legal argument. Much of the debate is intensely political, with Baku and Yerevan choosing to concentrate on possible political outcomes of the Madrid Principles, rather than their legal implications. Yet the Principles are essentially a legal document and provide a rule-based framework for the settlement of the Karabakh conflict.

This is happening chiefly for political reasons. The governments of Robert Kocharian and Ilham Aliev, having excluded their populations from the peace process for many years are forced to operate in a highly charged atmosphere of mistrust and fear being accused of “selling Karabakh out”. Thus, as far as supporters of Madrid Principles in Baku are concerned, inclusion of the principle of territorial integrity means that Karabakh will never be independent, whilst those in Armenia point to the right of self-determination as a guarantee of future Karabakh independence. Inclusion of the principle of non-use of force is seen in Yerevan as a permanent block on Azerbaijan capacity to militarily threaten Armenian control of Karabakh.

The conventional narrative that emerged out of debates around the Madrid Principles goes something like this. Armenians in Karabakh would receive security guarantees through the deployment of international peacekeepers, which will ensure implementation of the commitment on non-use of force. There would be withdrawal of Armenian and Nagorno-Karabakh Armenian forces from all occupied territories adjacent to Nagorno-Karabakh, with special provisions for Kelbajar and Lachin – restoration of Azerbaijani territorial integrity. There would be return of all displaced persons to liberated Azerbaijani territories including Karabakh. Nagorno-Karabakh’s final status would be determined at a later and unspecified date by a vote, with an interim status to be settled on until that time (exercise of the right to self-determination).

Such narrative does not make sense simply because we do not have all the details of Madrid Principles. But its most interesting feature is that it is almost entirely political. Opponents and proponents of Madrid Principles in Azerbaijan and Armenia, as well as international observers, are busy discussing such issues as the make-up of the peacekeeping force, the status of Lachin and Kelbajar, the nature of the referendum that will determine Karabakh final status and so on. There is practically no discussion of the legal basis for these assumptions.

It is notable (and paradoxical) that there is greater opposition to Madrid Principles in Armenia and Armenian Diaspora in the West, than in Azerbaijan. As far as Baku is concerned the issue of territorial integrity is paramount and the Principles reflect Azerbaijan’s priorities in that respect. This is not just an erroneous interpretation of the legal situation but an extremely dangerous one.

This becomes clear when one examines the legal provisions expressed through the Madrid Principles.
First, the inclusion of Article II of HFA on non-use of force precludes any possibility of Azerbaijan exercising its right to self defence under Article 51 of the UN Charter (Self-defence) to liberate occupied territories, once an agreement is signed and it becomes clear that Azerbaijan has been hoodwinked into surrendering sovereignty over Karabakh. Because this is the crucial issue – the conflict between Armenia and Azerbaijan over Karabakh is not about territorial integrity or self-determination – it is about sovereignty over the disputed territory.

If we examine the text of Article IV of HFA (Territorial Integrity) the danger becomes apparent. The legal concept of territorial integrity as expressed in HFA has nothing to do with Karabakh (formally recognised by all, including Armenia, as a constituent part of Azerbaijan) and applies only and exclusively to member states of OSCE – Azerbaijan and Armenia. “NKR” is not a member state of OSCE – it is not even a state.

Article IV reads that, “The participating States will respect the territorial integrity of each of the participating State” and “…will likewise refrain from making each other's territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them”. That is all there is.

Politically this means that Armenia formally declares that it has no territorial claims against Azerbaijan and recognises the borders of the neighbouring state. This, in fact, has been the Armenian position since 1993 – that Karabakh conflict was an internal matter for Azerbaijan. Many in Azerbaijan erroneously interpret inclusion of the principle of territorial integrity as a firm guarantee that the right to self-determination of Karabakh Armenian population can only be exercised within the borders of Azerbaijan Republic i.e. widest form of autonomy but not independence. There is no basis for this assumption in the legal reading of the text of the Helsinki Final Act. In fact, the principle of territorial integrity refers only to relations amongst states, members of OSCE, and has no relevance to issues of secession or separatism affecting these states internally – it is simply not relevant in that context from a legal perspective. Any international lawyer would confirm that fact.

The above Azerbaijani assumption would be valid if, and only if, Madrid Principles were also based on Article I (Sovereign equality, respect for the rights inherent in sovereignty) and Article III (Inviolability of frontiers), which they are not. Article I is the most important of all for two reasons. First, it requires all to respect not just territorial integrity of another state but also “all the rights inherent in and encompassed by its sovereignty” i.e. total recognition of other states’ control of their territories. It is a failure in Baku to understand that it is possible for a state not to have real sovereignty over a territory, whilst retaining de jure its territorial integrity. Such is the flexibility of international law.

Second, Article I is the only portion of HFA that sets out conditions under which a constituent territory of an OSCE member-state can legally secede from that State. According to Article I of HFA member-state’s “frontiers can be changed, in accordance with international law, by peaceful means and by agreement”.

As stated above the choice of this or that HFA article determines political outcomes of any agreement based on the Act. Inclusion or non-inclusion of certain provisions bears significantly on what the agreement is about. Non-inclusion of Article I of HFA into Madrid Principles is crucial. It means that the issue of Azerbaijani sovereignty over Karabakh is universally and legally challenged. Moreover, it means that Azerbaijan recognises the challenge to its sovereignty and accepts that the latter would be determined by a popular vote. Moreover, it means that Azerbaijan’s agreement, should its borders be changed, is not legally required. Azerbaijan agreed to a referendum – that is enough.

Absence of Article I, with its stress on “agreement”, means that Article VIII (Right to Self Determination) is the only legal element in the Madrid Principles that deals with the issue of secession and, therefore, takes precedence. Hence, independence of Karabakh, established through a referendum at some point in the future (when Azerbaijan will no longer be able to use force legally – Article II), is not just possible but inevitable. Anyone who is familiar with the history of Armenian national supremacist ideology, religious fundamentalism, militancy and territorial expansionism, will be in no doubt about the outcomes of such a referendum.

As Vafa Guluzade, former policy advisor to President Heydar Aliev, pointed out, Madrid Principles, if implemented in an agreement, can lead to “fragmentation” of Azerbaijan. He is correct. As things stand, Madrid Principles set out a blueprint for eventual independence of Karabakh and creation of a second Armenian state in South Caucasus. Those elements of the Helsinki Final Act that form the basis of Madrid Principles stipulate that:
1) Republic of Armenia recognises Azerbaijan’s territorial integrity and forfeits any claims against Azerbaijan Republic, but does not and is not required to recognise Azerbaijani sovereignty over Karabakh.
2) The International community recognises Azerbaijan’s territorial integrity but does NOT recognise Azerbaijani sovereignty over Karabakh.
3) Azerbaijan forfeits its right under international law to use force in self-defence against Armenian occupation of Karabakh and other regions.
4) Armenian security is guaranteed through deployment of international peace-keeping force not just in Karabakh but in all of the territories of Azerbaijan currently under Armenian occupation – Azerbaijan will not be allowed to deploy its own troops in regions such as Agdam or Fizuli.
5) Azerbaijani sovereignty over Karabakh is de facto and de jure negated by establishment of an interim status for Karabakh, probably under the auspices of OSCE and direct control of that organisation – similar to the interim status offered to Kosovo by UN prior to that region’s declaration of independence.
6) The final issue of sovereignty over Karabakh will NOT be decided by the warring parties, through negotiations between Baku and Yerevan, but through a referendum to be held at some point in the future – when will this be is irrelevant since legal standards will be upheld indefinitely.
A recent change in Azerbaijani constitution (adopted through a rigged referendum) has transformed a constitutional requirement for all referendums to be held on national basis – the current text of Azerbaijani constitution requires as few as 40,000 people to demand a referendum on a local issue, for it to be triggered.
7) Article VIII of HFA (The Right to Self-determination) reads that “…all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. As such there is absolutely no legal basis to claim that Armenian population of Karabakh cannot demand full independence when the referendum is eventually held.

It would have been possible to prevent the “independence option” being included into the referendum if the agreement between Azerbaijan and Armenia was to be based on Article I of HFA (Sovereignty). Azerbaijan could have then legally challenged any independence demands, since Article I require the agreement of a state for its frontiers to be changed. But as Article I is not included in the Madrid Principles there is no legal recourse for Azerbaijan – there is nothing in the three elements of Madrid Principles which would prevent Karabakh Armenians demanding independence through a referendum in accordance with Article VIII (Self-determination). As stated above, the principle of territorial integrity (Article IV) does not apply to relations within member-states of OSCE, but only to relation between such states.

The importance of Article I and the issue of sovereignty become even more apparent when comparing Madrid Principles with other legal documents and agreements based on Helsinki Final Act. For instance, both the Dayton Accords and the Armenian- Turkish Protocols are based explicitly on Article I (Sovereignty).

The question to the Aliev administration is this - why have they agreed to a legal framework that explicitly challenges Azerbaijani sovereignty over Karabakh and removes the final status issue from its traditional place as subject to bilateral negotiations between Baku and Yerevan? Azerbaijan was invaded by Armenia and our territories are occupied by that foreign power. Independence of Karabakh was not the demand when the conflict flared up in 1988 – the original demand was annexation of Karabakh by Armenia. The right to self determination was articulated only after the collapse of Soviet Union as a means to legitimise the aggression perpetrated by the Republic of Armenia. Azerbaijan always insisted that the status of Karabakh should be settled through negotiations between the governments of two warring states. To remove that precondition is to play a dangerous game with the future of Azerbaijani statehood – one that is immaterial without sovereignty over Karabakh.

The paradox of Madrid Principles is that they are opposed most forcefully by Armenians, whilst many in Azerbaijan are euphoric in their delusions about the nature of the legal principle of territorial integrity.