ISTANBUL SUMMIT MEETING

Istanbul, 18–19 November 1999
Declaration of the Istanbul Summit Meeting

20. We have received the report of the Co-Chairmen of the OSCE Minsk Group on the evolving situation and the latest developments related to the Nagorno-Karabakh conflict and positively assess their efforts. We are particularly encouraged by the intensified dialogue between the Presidents of Armenia and Azerbaijan, whose regular meetings have created conditions for injecting momentum into the process of seeking a durable and comprehensive settlement of this problem. We firmly support this dialogue and call for its continuation, hoping for the resumption of negotiations within the framework of the OSCE Minsk Group. At the same time, we reaffirm that the OSCE and its Minsk Group, which remains the most appropriate format for seeking a settlement, stand ready to assist further progress in the peace process and its future implementation, including by providing all necessary assistance to the parties.

OSCE website: http://www.osce.org/docs/russian/1990-1999/summits/istadec1999r.htm
No. 790

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THE NAGORNO-KARABAKH CRISIS
SETTLEMENT PLAN

MEMORANDUM PREPARED BY A GROUP OF EXPERTS IN INTERNATIONAL PUBLIC LAW AND POLITICS
[Excerpt]
May 2000

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III. The Right of Nagorno-Karabakh to Independence

Nagorno-Karabakh has the right to self-determination, including independence, in accordance with the criterion recognized by international law, as outlined above.

1. The Armenians of Nagorno-Karabakh constitute a group entitled to self-determination.
   The Armenians of Nagorno-Karabakh possess both the objective and subjective factors necessary for a group entitled to self-determination. Objectively, the Armenians of Nagorno-Karabakh constitute a group distinct from Azerbaijanis. The Armenians of Nagorno-Karabakh speak a dialect of the Armenian Indo-European language, whereas Azerbaijanis speak a Turkic dialect, which is part of the Asian language group. The Armenians of Nagorno-Karabakh are Christians, while Azerbaijanis are Muslims, predominantly of the Shiite denomination. The Armenians of Nagorno-Karabakh share the ancient culture and historical heritage of the Armenian people, whereas Azerbaijanis are only now developing their national identity and share the historical heritage of the Turkic peoples.

Nagorno-Karabakh has also, by long-standing tradition, been a separate territorial entity. The region of Nagorno-Karabakh (Artsakh) emerged as one of the fifteen provinces of historical Armenia and was also included as a separate “melikdom” within the Persian Empire. Nagorno-Karabakh as a distinct territorial entity was recognized by the Soviet Union when it was granted the status of an “autonomous oblast” (from 1923 to 1989) and as a “national-territorial administrative entity” that was under the direct administration of Moscow rather than Azerbaijan (from January to November 1989).

As regards the subjective factor of the test, the Armenian population of Nagorno-Karabakh responded to Azerbaijan’s decision in November 1991 to abolish the autonomous status of Nagorno-Karabakh and place the region under its direct control by holding, under international observation, a referendum on the independence of the region. On 10 December 1991, 82 percent of Nagorno-Karabakh voters (according to the USSR population census of January 1989) participated in the vote, of whom 99.7 percent supported the proclamation of independence. Since then, the Nagorno-Karabakh Republic has essentially functioned as a de facto state.

2. The right of Nagorno-Karabakh to self-determination includes the right to independence.
   Azerbaijanis argue that the political independence of Nagorno-Karabakh violates Azerbaijan’s right to territorial integrity. However, claims to territorial integrity may be rejected where a state does not conduct itself “in compliance with the principle of equal rights and self-determination of peoples” and does not allow the people under its authority “to pursue their economic, social and cultural development,” as required by United Nations General Assembly Resolution 2625 (XXV).

Moreover, it should be noted that when Azerbaijan proclaimed its independence from the Soviet Union, it declared itself the legal successor to the Azerbaijan Democratic Republic of 1918–1920. However, the League of Nations did not recognize the inclusion of Nagorno-Karabakh by Azerbaijan among the territories claimed by Azerbaijan.

Until 1988, Azerbaijan’s record of human rights violations with respect to the Armenian people was deeply troubling. During the seventy years of the existence of the USSR, the government of Soviet Azerbaijan systematically pursued a policy of repression and expulsion of Karabakh Armenians from their historical homeland. During this period, the Armenian population of Nagorno-Karabakh declined from 95 percent of the region’s total population in 1926 to 75 percent in 1976.

Following the emergence of the Karabakh independence movement in 1988, human rights violations against the Armenians of Nagorno-Karabakh intensified, including pogroms, deportations, and other atrocities. Azerbaijan began to block supplies of food and fuel to Nagorno-Karabakh, and this blockade continues to the present day. In view of these events, Nobel Peace Prize laureate Andrei Sakharov warned in November 1988 that “the Armenian people are once again facing the threat of genocide” and that “for Nagorno-Karabakh, this is a question of survival, while for Azerbaijan it is merely a question of ambition.”

Accordingly, prospects for guaranteeing human rights and allowing the Armenians of Karabakh to pursue their “economic, social, and cultural development” under Azerbaijani administration are unpromising, even in light of Azerbaijan’s assurances that it would grant them local autonomy. Under these circumstances, the right of Nagorno-Karabakh to self-determination, including independence, may prevail over Azerbaijan’s claim to territorial integrity.

The fact that Nagorno-Karabakh was compelled to resort to force in order to defend itself, to break the Azerbaijani blockade by opening the Lachin Corridor to Armenia and the outside world, and to establish defensible borders does not deprive it of its right to independence. In fact, the conflict between Nagorno-Karabakh’s right to self-determination and Azerbaijan’s right to territorial integrity must be analyzed in light of the de facto independence that Nagorno-Karabakh has achieved and maintained over the past six years through the success of its armed forces and the establishment of civilian and political institutions.

Nagorno-Karabakh now meets all the traditional requirements of statehood set forth in the Montevideo Convention. It controls a defined territory exceeding 5,000 square kilometers. Its permanent population numbers approximately 150,000 people, exceeding the populations of several states admitted to the United Nations since 1990, including Andorra (60,000), Liechtenstein (32,000), the Marshall Islands (66,000), the Federated States of Micronesia (132,000), Monaco (32,000), Nauru (11,000), Palau (18,000), and San Marino (25,000).

Nagorno-Karabakh has a democratically elected president and parliament. Its government commands armed forces and maintains contacts with foreign states. Through its state institutions, as well as its representative offices in the United States, France, Russia, Lebanon, Australia, and Armenia, Karabakh is capable of acting on behalf of the region’s population and representing it in international peace negotiations mediated by the Organization for Security and Co-operation in Europe.

Finally, Nagorno-Karabakh’s right to independence is also consistent with the “balancing of factors” approach proposed by some commentators. As discussed above, the overwhelming majority of Nagorno-Karabakh’s population constitutes a distinct group with its own government and defense forces and a historical connection to the territory. The fact that this group achieved de facto independence following an overwhelming popular vote for secession and after repelling armed attack reinforces its prospects for independent existence.

As a result of the armed conflict, the current population of Karabakh is 95 percent Armenian, with the remaining five percent consisting of Russians, Greeks, Azerbaijanis, and Tatars. The government of Nagorno-Karabakh guarantees the rights of national minorities and their political participation in the life of the state, should these and other ethnic minorities wish to return. The government of Nagorno-Karabakh has expressed its readiness to establish bilateral contacts with the government of Azerbaijan on issues relating to the return of refugees, the protection of minority rights, and other matters pertaining to their bilateral relations.

The de jure secession of Nagorno-Karabakh would not have major consequences for Azerbaijan. It would lose only two percent of its total population; it would not lose oil fields or vital land or maritime routes connecting it to the outside world. Ending oppression and avoiding further escalation of violence would serve the interests of the international community. As discussed in greater detail below, a negotiated modification of territorial boundaries could enhance the security of both Nagorno-Karabakh and Azerbaijan and significantly reduce the current level of instability in the region.

Thus, international law provides a solid foundation for Nagorno-Karabakh’s attainment of independence from Azerbaijan.

In light of recent precedents established in a number of other peace processes, the following section sets out proposals for a two-stage procedure providing for the achievement of international recognition of the de jure independence of Nagorno-Karabakh.

IV. Proposed Framework for the Self-Determination of Nagorno-Karabakh in Light of Existing International Models

The realization of Nagorno-Karabakh’s right to self-determination may be achieved through peaceful and constructive means within the framework of the OSCE peace process. In this regard, it is necessary to consider the implementation of proposals aimed at achieving self-determination in the context of other regional conflicts, which may serve as models for the next steps in the OSCE process.

In light of these precedents, it is essential to establish a detailed, phased process for achieving self-determination, which the interested parties may agree upon and recognize in advance. Accordingly, this section takes into account existing precedents in order to develop approaches based on interim sovereignty / earned recognition as a foundation for a long-term settlement of the Nagorno-Karabakh dispute.

As noted in the introduction, the approach based on interim sovereignty / earned recognition consists of two stages.

The first stage—interim sovereignty—would involve a period of three to five years and would consist of three main elements.
The first element would provide both for a level of sovereignty for Nagorno-Karabakh consistent with its right to self-determination and for the establishment of a mechanism for cooperation between the government of Nagorno-Karabakh and the government of Azerbaijan.
The second element would define the development of specific commitments by Nagorno-Karabakh and Azerbaijan regarding the resolution and encouragement of the return of refugees and displaced persons, the protection of human rights and minority rights, and the implementation of a series of agreed confidence-building measures.
The third element would provide for assistance from the international community in implementing and monitoring the interim measures and in preparing for final independence.

The second stage—earned recognition—would occur at the conclusion of the interim phase and would provide for a determination, through an international mechanism, of how Nagorno-Karabakh could best be recognized as an independent state. The determination by the international mechanism would be based on Nagorno-Karabakh’s compliance with the commitments undertaken during the interim period—taking into account Azerbaijan’s compliance with its own commitments as well as the results of a second referendum conducted in Nagorno-Karabakh.

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V. Recommendations

In order to achieve a lasting settlement of the Nagorno-Karabakh conflict, the OSCE and other interested international bodies should facilitate the process of achieving interim sovereignty and earned recognition for Nagorno-Karabakh. This process would involve a two-stage approach.

During a two-to-five-year period, Nagorno-Karabakh would enjoy an interim level of sovereignty. During this period, both Nagorno-Karabakh and Azerbaijan would undertake commitments to implement a series of confidence-building measures and obligations relating to human rights issues.

To implement the period of interim sovereignty, the parties should provide for:

• The establishment of mechanisms for mutual cooperation and interaction, such as joint commissions ensuring cooperation between the highest political structures of Nagorno-Karabakh and Azerbaijan and between departmental structures dealing with rail transport, postal, telegraph and telephone communications, trade, and culture. These mechanisms should also include joint commissions on the return of refugees, restitution and compensation for lost property, border demarcation, and economic cooperation, and may include the participation of OSCE observers and advisers.
• The establishment of a joint military commission with international participation to plan the demilitarization of any territories subject to exchange;
• The establishment of special relations with neighboring states on matters relating to trade, economic development, education, and culture, as well as membership in relevant international organizations and the establishment of “special interest” missions in foreign states; and
• The exchange of territories based on security considerations, aimed at strengthening viability and fostering peaceful relations while simultaneously resolving disputed issues so as to exclude them from future relations between Nagorno-Karabakh and Azerbaijan.

To strengthen mutual confidence, the parties should:

• Undertake a public commitment to ensure the right of refugees and displaced persons to return and to create conditions conducive to their return;
• Establish property return and restitution commissions responsible for determining property ownership, ensuring the return of property, or, alternatively, arranging property exchanges or financial compensation. In addition, it would be desirable for the parties to establish a commission to assess war-related damage;
• Approve and implement the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols. This should be accompanied by the establishment of a mechanism to assist national minorities in the effective use of Council of Europe procedures under the European Convention. Relevant UN conventions should also be fully recognized and applied both in Nagorno-Karabakh and in Azerbaijan;
• Establish a series of ombudsman offices empowered to examine complaints concerning violations of minority rights and human rights and to express opinions on the adoption and practical implementation of laws and any other state activity that may affect the exercise of minority or human rights;
• Reaffirm their commitment to seeking a non-violent and peaceful settlement of the conflict and agree to the possible deployment of small international police operational forces in areas of refugee and displaced-person return, as well as to continued joint monitoring of demilitarized areas.

To establish effective third-party monitoring and oversight, the parties should agree to:

• The limited deployment of military observers and human rights monitors to verify that the parties comply with the commitments undertaken during the interim sovereignty period.

Upon completion of the interim period, an international mechanism should determine whether Nagorno-Karabakh has achieved international recognition, taking into account its conduct during the interim period of de facto independence, particularly with regard to its commitments concerning refugees and minority protection. The commitment of the people of Nagorno-Karabakh to independence should be reaffirmed through a referendum.

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Appendix A

Group of Experts on International Public Law and Politics

The Group of Experts on International Public Law and Politics, established in 1996, is a non-profit organization composed primarily of experts in international public law and specialists in international relations, whose objective is to strengthen the rule of law in international affairs. Members of the Group have previously served as legal advisers in the ministries of foreign affairs of various states.

The Group provides pro bono legal assistance in the field of international public law to states in transition, newly independent states, and developing states at various governmental levels, as well as to governmental delegations in international organizations.

The Group also occasionally provides legal assistance to non-governmental organizations.

The Memorandum was prepared with the participation of the following international lawyers:

Nancy E. Furman, partner at the law firm Wilmer, Cutler & Pickering, Washington, D.C. Ms. Furman previously served as an international law specialist on issues relating to Kosovo and worked as a law clerk for a judge of the United States District Court for the Eastern District of New York.

Maura E. Griffin, partner at Wilmer, Cutler & Pickering, Washington, D.C. She received a Master of Laws degree in International and Corporate Law from the Georgetown University Law Center and a Juris Doctor degree from Tulane University.

Christopher Goebel, partner at the law firm Curtis, Mallet-Prevost, Colt & Mosle. He has advised a number of foreign governments on matters of international law, including the governments of Bosnia and Herzegovina, Macedonia, and Estonia. Mr. Goebel received his Juris Doctor degree from Harvard University and is a member of the French Society of International Law.

Bruce Janigian, Doctor and Master of Laws, heads the International and Governmental Law Department at Weintraub Genshlea & Sproul Law Corporation. He previously served as legal counsel to the United States Agency for International Development (USAID). He received his Juris Doctor degree from the University of California and his Master of Laws degree in International and Corporate Law from George Washington University.

Andrew J. Lorenz, partner at the Brussels office of Wilmer, Cutler & Pickering. He previously served in the United States Department of Justice with the Drug Enforcement Administration. Mr. Lorenz received his Juris Doctor degree from Georgetown University and a Master of Laws degree in International Relations from Boston University.

Robert H. Lanz, commercial adviser to the representative offices of COMSAT Corporation in Russia, China, India, Turkey, and Brazil. He was previously a partner at Wilmer, Cutler & Pickering in Washington, D.C. He received a Master of Laws degree in International and Corporate Law from Georgetown University and a Juris Doctor degree from McGeorge School of Law.

Michael P. Scharf, Professor and Director of the Center for International Law and Policy at the New England School of Law. He previously served as legal adviser to the United States delegation to the UN Commission on Human Rights and the Sixth (Legal) Committee of the UN General Assembly. He received his Juris Doctor degree from Duke University.

Paul R. Williams teaches international law and international relations at American University. He previously served as a Senior Fellow at the Carnegie Endowment and as legal adviser to the Office of European Affairs of the U.S. Department of State. During the Dayton negotiations, he served as legal adviser to the Bosnian delegation, and during the Rambouillet–Paris negotiations, as adviser to the Kosovo delegation. At various times, he has provided public international law advice to the governments of Macedonia and Estonia. He received his Ph.D. in Law from the University of Cambridge and his Juris Doctor degree from Stanford Law School.

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The Nagorno Karabagh Crisis: A Blueprint for Resolution.
A Memorandum Prepared by the Public International Law and Policy Group, May 2000. 791

Yuri Barsegov “Nagorno-Karabakh in International Law and Global Politics”

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