by Zaur N SadigBayli
Zaur N. SadigBayli
Civil Administrator, Lawyer
French of Azerbaijani origin
Dear Friends and Readers,
Today, November 10, is the first anniversary of the signing of the tripartite agreement between Azerbaijan, Armenia and Russia that ended 30 years of conflict between Azerbaijan and Armenia.
However, many questions remain unanswered. Some of the essential issues to resolve include: how to achieve a lasting peace in the South Caucasus between Azerbaijan and Armenia? What are the legal conditions and considerations to achieve this? And finally, what kind of behind-the-scenes efforts are needed to succeed in this endeavor?
Let us first say a few words about the qualification of this agreement given the tensions between the two countries after its signing.
Although legally the agreement of November 10, 2020 is considered an armistice, de facto it is indeed the capitulation of Armenia (Armenian Prime Minister Nicol Pashinyan was not present at the signing of the agreement live by videoconference between the Russian and Azerbaijani president) which concretizes the fiasco of the policy of territorial claims and occupation by Armenia over 30 years!
For the record, let us recall that the armistice regime provides for the cessation of all hostilities by the military (or paramilitary) and civilians, while a capitulation leaves (in theory) the possibility for civilians to “resist”. This clarification is important to qualify incursions by Armenian forces into Azerbaijani territory after the date of the agreement. As a result, the persons concerned (Armenian military or civilian) apprehended by Azerbaijani forces have become OUTLAWED.
Thus, legally speaking, they must be excluded from the benefit of the treaty provisions on prisoners of war. They have committed acts of sabotage that can be described as terrorists, assassinations within the very territory of Azerbaijan. Those arrested in this context have been tried by Azerbaijani courts, some have been convicted, others acquitted or even released, as the investigation has determined their innocence or involvement in criminal acts committed on Azerbaijani soil.
Tensions on the international border between Azerbaijan and Armenia had led Azerbaijan to propose to the neighboring country to sign the agreement on the delimitation and demarcation of the borders between the two countries. The proposal was also relayed by the international community, including France. It appears that the appropriate negotiations are ongoing under Russian mediation. It also seems that the parties agreed on the fixing of the borders as they existed on 29-30 December 1922, the year of creation of the USSR.
Recall that previously, the three newly created Soviet Socialist Republics of Transcaucasia had formed a Soviet Socialist Federation of Transcaucasia (RFSS of Transcaucasia) on March 12, 1922, considered one of the founders of the USSR, but which was finally dissolved by a new constitution of the Soviet Union on December 5, 1936 and the three Transcaucasian republics entered as the republics of the autonomous union.
These clarifications are important because the recognition of the existing borders at the time of the creation of the USSR corresponds to the current position of Russia (de facto mediator). In addition, ultimately settles the underlying dispute between the two countries over the illegal transfers of plots of land, mainly to the benefit of the Armenian SSR.
A second agreement in sight, which is also provided for in the tripartite agreement, is the opening of communications between the two parties of Azerbaijan: the parent territory and the Nakhchivan Autonomous Republic.
Let us recall here that the status and territory of Nakhchivan are governed by the Treaty of Kars of 13 October 1921 (which entered into force on 11 September 1922), which specifies, on the one hand, that this territory “constitutes an autonomous territory under the protection of Azerbaijan” (article 5) and which, on the other hand, sets out in Annex 3 the outline of the territory of Nakhchivan. Previously Soviet Russia and the new Turkish Republic, signed, on March 16, 1921 the Treaty of Moscow, article 3 of which enshrined the status of Nakhchivan “… provided that Azerbaijan does not cede the said protectorate to a thirdstate’. Russia and Turkey are therefore guarantors of this status.
This has two consequences.
The first is that it is impossible to detach Nakhchivan from Azerbaijan (as foreseen by the irresponsible statements of some Armenian politicians). Any such attempt would risk leading to Nakhchivan’s annexation to Turkey. This guarantee was imagined at the beginning of the last century to avoid the fate of the Zangezur in Nakhchivan, emptied of its Azerbaijani population by the Armenian dashnaks at the beginning of the twentieth century and then granted by Moscow to the Armenian communists.
The second is that, in light of the agreements on the delimitation and demarcation of borders, it is possible that adjustments may be made in relation to the parcels of territory of Azerbaijan, including Nakhchivan, illegally granted to Armenia.
This is the constitutional status of the Nakhchivan territory to date. All Armenian speculation about the completion of the Treaty of Kars is unfounded.
In parallel with the Karabakh region or more precisely the territory of the former Nagorno-Karabakh autonomous oblast (domain), the constitutional status of this territory is very different. An autonomous oblast has never been an autonomous entity comparable to a republic! As a result, he could not secede, in accordance with Soviet constitutional law.
Moreover, contrary to what the Armenians claim, the decision of July 5, 1921 by the Caucasian Bureau of the Communist Party had expressly used the term “maintain” Nagorno-Karabakh inside Azerbaijan and not “give” as the Armenians and their supporters claim.
One may wonder about the legitimacy of this decision, but in this case it would be tantamount to saying that the NKAO was null and void for the entire period of the existence of the USSR.
This consideration is, in my view, fundamental, because it explains the failure of the negotiations for 26 years. Indeed, the Armenians, their supporters and even the co-chairs of the Minsk Group wanted to force Azerbaijan to accept this change in the constitutional status of this territory, when it was perfectly
clear that such a change was not possible without an amendment to the Azerbaijani Constitution, which was hardly possible without a referendum while knowing that such a referendum would have no chance of success.
The final resolution of the conflict between Azerbaijan and Armenia has two components.
The first part concerns only the borders between Armenia and Azerbaijan, a central part like Nakhchivan. The same applies to the corridor between the central part of Azerbaijan and the territory of Nakhchivan, called the Zangezur corridor.
The second part concerns only Azerbaijan’s relations with the Armenians of Karabakh, especially those who have remained in the part of Karabakh currently under Russian custody. In this regard, it should be pointed out that, according to international law, this is the territory of Azerbaijan and therefore internal affairs of Azerbaijan.
If the resolution of the first part seems to be emerging little by little, the situation is much more complicated with regard to the second. Armenian lobbyists and supporters, especially those in the diaspora, are working to put the question of the supposed status of the enclave back on the table. It seems that these ideas resonate especially in Russia, but also in France and the United States harmed by the tripartite agreement negotiated and signed without them!
The Armenian activists and their supporters put forward the argument that it would be impossible for Armenians to live in Azerbaijan, that they would be discriminated against, or even threatened with ethnic cleansing or worse, extermination. For a year since the conclusion of the hostilities, they continued shareing disinformation about the alleged destruction of Karabakh’s Christian heritage, destruction of various Armenian historical monuments, etc.
Armenians and their supporters deny and obfuscate historical facts, still speak of Karabakh as an Armenian land, claim for example that Shusha was previously an Armenian city and that the Azerbaijanis exterminated them all in 1920.
The alleged Shusha massacre is a fabrication, as evidenced by all historical documents, including from Armenian sources. Indeed, an insurrection was organized by the Armenian Dashnaks in Karabakh around March 19-20, 1920, with the aim of taking the Azerbaijani garrisons by surprise to seize the Azeri towns and villages. This attempt failed and the Azerbaijani forces had to resist and retake the lost positions from the Armenians. It was at this time that fighting took place in the city of Choucha. Fighting that has certainly resulted in human losses, but the real number of which has nothing to do with the staggering figures put forward by the Armenians.
With regard to Karabakh and to put an end to the fanciful Armenian claims, it’s worth recalling that the Karabakh Khanate had entered Russian sovereignty on May 14, 1805 through the Treaty of Kurektchai as an autonomous feudal entity! History will remember that in the year following this treaty Ibrahim Khalil Khan was killed by Russian game wardens on a slanderous denunciation (possibly propagated by the Armenians). Then, after the short-lived reign of the khan’s son the khanate was abolished and the territory of the khanate entered a larger administrative unit created by the tsar’s regime. It was eventually attached to the governorate of Elisavetpol.
During the Soviet period the Armenians of NKAO had many privileges, among which we can mention endowments (public funding), quotas to enter Azerbaijani institutes and universities, etc. It can be said objectively that the creation of the NKAO was in itself already a very great compromise, which the Armenians failed to abide by!
In the end, the former Nagorno-Karabakh conflict was just an attempt at annexation in disguise. Armenia’s war against Azerbaijan was never declared. Only the 4 unsused UN Security Council resolutions, as well as the 2008 General Assembly resolution, reported on the presence of the Armenian armed forces and called for their immediate withdrawal from Azerbaijani territory.
Why have these resolutions not been implemented in the course of the las 26 years? Why did the Minsk Group not reach any agreement? There are multiple contributing factors. We can mention the differences between the major powers that co-chair the Minsk Group, but also the influence of the Armenian lobby in the three countries – co-chairs. The lack of a United Nations enforcement mechanism can also be questioned.
Finally tired of this situation, Azerbaijan undertook a military operation last year to liberate the occupied territories. An operation that can be considered as one of coercion for peace.
Finally, regarding Russia’s position, it’s worth noting the remark of Russian President V. Putin at the last tripartite meeting in Sochi on 26 November. Indeed, speaking about the delimitation of the borders between Azerbaijan and Armenia, he said that Russian cards will be used. These are the Russian General Staff cards, which according to the Russian president “fixed the borders as they were at the time of the formation of the USSR”.
This position of Russia is quite consistent, because it is part of the continuity of its argument on other territories in the former. the USSR, whose membership of other republics it contests.
There remains a central issue on the road to peace: the fate of the part of Karabakh currently under the control of Russian peacekeeping forces. How to deal with the situation of Armenians in Karabakh? What to do with extremists, separatists? Who is entitled to Azerbaijani citizenship? What to do with Armenians who do not want Azerbaijani citizenship and prefer to remain foreigners on Azerbaijani territory?
Here are some ideas and food for thought.
First, regarding armed persons and paramilitary groups:
One of the conditions for the cessation of fighting and the signing of the tripartite agreement was their effective departure. Indeed, Russian peacekeepers had to guarantee the safety of the inhabitants of Karabakh of Armenian origin.
Hence a first suspensive condition: the total demilitarization of the part of Karabakh currently under of the Russian guard. These are sophisticated weapons, but same is true for all weapons useed in combat without exception.
Azerbaijani law does not allow the free carrying of weapons and this provision must be applied everywhere! Specific provisions govern the possession of small arms and light weapons, including for hunting. Once the situation has normalized, authorizations may be issued on a case-by-case basis by the competent bodies and only to persons who meet the necessary conditions (medical certificate, clean criminal record, absence of prohibition on possession of weapons, etc.).
The second important thing is the determination of the right to stay and work.
It is clear that state agencies such as ASAN XIDMAT (One-Stop Shop for General Affairs) and migration services must be able to carry out census operations and control of the right of residence and Azerbaijani citizenship. The aim is to verify the personal status of each person and to determine whether he or she is eligible for Azerbaijani citizenship or possibly another status.
We find ourselves here in a situation that we know well in France and in Europe. To be a citizen of a country in its own right, one must accept the Constitution and the laws of that country, recognize its territorial integrity and independence (or sovereignty). No country in the world would accept on its soil a person who refuses to join! French law also provides for the possibility of withdrawal of nationality to persons who behave unfairly (deprivation of nationality) and especially those who have acquired nationality by naturalization or declaration.
It will therefore be for the competent Azerbaijani authorities to determine the form of such an undertaking. For example, we could choose to sign a charter of commitment or make this commitment an integral part of the Azerbaijani citizenship application form.
Persons who are not entitled to Azerbaijani citizenship may be able to claim another status, that of long-term resident or temporary resident. Theoretically there can also be cases of asylum applications or stateless status. Here again, we find familiar situations in France and Europe.
In order to be admitted as a resident, the applicant must also undertake to respect the Constitution and the laws of the Republic, and also, possibly, prove sufficient knowledge of the Azerbaijani language.
It is natural that a person who declares himself a separatist, who does not adhere to the values and laws of the republic, does not recognize his territorial integrity and sovereignty, does not speak the language or refuses to learn it is not allowed to stay on Azerbaijani soil! This is the rule in every country in the world.
Of course, we must ask ourselves the question of the expulsion or expulsion of people in this category, which can be settled by their admission to another country, or by the formulation of an asylum application in a third country.
No country in the world would accept to have on its soil individuals who pose a threat to public order. The same applies to persons who have committed crimes on the territory of Azerbaijan and who have been brought to justice and convicted of racist, war or terrorist crimes.
For those who wish to retain Armenian citizenship, it should be remembered that Azerbaijani law does not in principle allow the second nationality. Therefore, they will have to make the choice. Others (e.g. married to Azerbaijani nationals of Armenian origin) may have a residence permit on the grounds of family ties.
Thus, persons recognized as Azerbaijani citizens and Armenians who remain foreigners will be issued a passport (identity card) or a residence permit.
Finally, once the questions of citizenship and right of residence have been resolved, once passports and permits have been issued, the question will arise of the relations of the republic’s powers with the Armenians of Karabakh.
In this regard, the example of decentralization comes to mind. It seems appropriate to organize it on three levels, as in France with a posteriori control by the courts.
It should be recalled that Article 72 of the French Constitution provides that “Under the conditions provided for by law, local authorities shall be administered freely by elected councils”. The scope of this provision was clarified by the Act of 2 March 1983 known as the Deferred Law.
Let us briefly recall that the law provides that the representative of the State (prefect) in the department ensures compliance with the laws by the local authorities. In the event of a non-compliant or illegal act, the prefect sends the missing municipality a formal notice with a deadline for compliance.
In case of persistence of the commune, the prefect refers the matter to the territorially competent Administrative Court (sends a prefectural deferral). Then the case is investigated and a decision is rendered. The municipality may appeal 1 1200. If the municipality persists in its illegal actions or does not execute the court decision that has become final (or that accompanied by provisional execution) it is dissolved in the Council of Ministers and new elections are held.
Going through the Constitution of Azerbaijan of 1995 I discovered similar provisions that govern the powers of municipalities (town halls).
Indeed, Title IV, Chapter IX of the Constitution of the Republic of Azerbaijan (Articles 142-146) governs all the applicable provisions on municipalities (local self-government) called in Azerbaijani “Baladiyya”.
Article 142 paragraph 2 provides that municipalities are formed by elections.
Article 143 paragraphs 1 and 2 relate to the functioning of municipalities by means of permanent or temporary commissions (municipal councils, paragraph 1) under the authority of the president (para. 2) – head of the municipality (mayor).
Article 144 describes the powers of municipalities, in particular with regard to paragraph 1. 4) local taxes 5) local budget 7) social programmes 8) ecological programmes 9) ecological (sustainable) development. Paragraph 2 provides that additional powers may be granted to municipalities (in this case an additional budget should be allocated to them).
Article 145 describes the forms of municipal decisions and the majorities required, in particular paragraph 2 simple majority and paragraph 2 majority of 2/3 in the case of decisions on taxes.
Article 146 describes the legal guarantees for the functioning of municipalities. These include paragraph 2 stipulating that the “autonomous execution by municipalities of their powers may not affect the sovereignty of the Azerbaijani State”, paragraph 3 enshrines the principle of State control of the functioning of municipalities, paragraph 4 establishes a mechanism of control by the parliament by means of the reports that a municipality must send to it at its request and paragraph 5 organizes the concept of judicial protection of municipalities, in particular with regard to costs incurred for their defence in legal proceedings, etc.
Finally, article 150 provides that “acts of municipalities may not be contrary to the Constitution, laws and decrees of the constitutional powers of the Republic of Azerbaijan”.
By analyzing the aforementioned provisions and comparing them with the mode of operation of French decentralization, we find many similarities.
A final conclusion follows: in order to achieve lasting peace in Karabakh, elections must be held as soon as possible in the corresponding municipalities and the representatives of the State (President of the Local Executive Authority – Prefect) must be appointed in the corresponding department and region.
Recall that the territory of Karabakh is now part of the Karabakh region.
My deep conviction is that there is no other solution to bring peace between the two countries and tranquility to Karabakh. Thus, after the total demilitarization of the remaining part of Karabakh (currently under Russiancustody), the determination of the personal status of each of the persons and the choice of each one either to stay and live in Azerbaijan as a citizen or foreigner, the departure of all separatists and extremists, the organization of elections and the appointment of the presidents of the local executive authorities (prefects of administrative units and regional prefect) should take place.
The same applies to the by-elections in the Milli Medjlis (Parliament) of Azerbaijan.
Once these steps have been taken, the central authorities of the Republic will build their relations with the municipalities of Karabakh within the framework of the law and constitution of the Republic of Azerbaijan.
All other issues, such as the training of municipal police officers, law enforcement, etc. can then be resolved.
Thus, the peacekeeping forces will have accomplished their mission and will then be able to leave.
I am convinced that the signing of the agreements of the first part (delimitation and demarcation of the borders and opening of the Zangezour corridor) will definitively settle the conflict between Azerbaijan and Armenia, as this will imply the mutual recognition of each other’s territorial integrity and inter-State borders. The opening of the Zanguezour corridor will certainly allow Armenia to benefit from the right of passage of goods and also to participate in other infrastructure projects for Transcaucasian transport.
The signing of the above-mentioned agreements must also sound the end of the omniscience of the diaspora and its influence both on Armenia and on the circles of power in the various countries (especially in France and the United States).
This explains the state of unleashing of activists from the Armenian diaspora andpostson social networks, some of which openly call for violence, including against Nicol Pashinyan and his family in the event of signing the aforementioned agreements.
Here is a summary of some measures to achieve lasting peace between Azerbaijan and Armenia, including:
- Communication to Azerbaijan of all minefield maps
- Normalization of relations between Azerbaijan and Armenia through the delimitation and demarcation of borders
- The elimination of all border disputes (restitution of parcels of territories too perceived)
- Opening of all communications between Azerbaijan and Armenia
- Profound changes in Armenian society, including the elimination of all forms of xenophobia and racism towards their neighbours and the abandonment of territorial claims
- Neutralizing the devastating actions of FRA Dashnaktsutsun
- Neutralizing the toxic actions of the Armenian diaspora
- Recognition of the faults committed against Azerbaijanis (including the Khojaly genocide)
- Prosecution of all identified war criminals
- Quantifying all the damage caused to the formerly occupied territories and the environment
- Learning to live in peace and good neighbourliness
- The return of all displaced persons to Karabakh and the surrounding areas
- Restoration of infrastructure in Karabakh and the formerly occupied territories
- Signing of the Final Peace Treaty
This list is not exhaustive, but it does provide an overview of what remains to be accomplished.
For my part, I believe that each of us must do our part to achieve this.
After all, the role of all of us is to bequeath to our children a better world, a world without the threat of a new ethnic or territorial conflict or a war with the new loss of life.
In 106 years it was the third war between the two countries. It’s time for this to end.
Speaking today to the Armenians, and in particular to the Armenians of Karabakh – Azerbaijani citizens – I would like to say to them again these three words in Armenian which are “hayere lsek indz” (Armenians listen to me), in the hope that common sense will finally be heard.
Originally from Yerevan like 280 thousand of my compatriots expelled in 1988-1989 by the Armenian authorities in complicity with the dashnaks, I dare to hope that one day the nationalists will be silent forever and that it will be possible for me to finally return to Armenia to the land of my ancestors.
But in the meantime, I will fight my little battle by sharing my ideas with as many of you as possible.
I know that Armenians and Azerbaijanis aspire to a lasting peace. Only extremists take advantage of the conflict to enrich themselves personally. History will condemn them heavily.
Peace be with you.
Nice, 10 November 2021