comparative analysis on nagorno-karabagh and kosovo

8/7/2019 Comparative Analysis on Nagorno-Karabagh and Kosovo

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Tofig F. Musayev

Advisory Opinion of the InternationalCourt of Justice on Kosovo and theNagorno-Karabakh Conflict:Comparative Analysis


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Tofig Musayev

Advisory Opinion of the InternationalCourt ofJustice on Kosovo and theNagorno-Karabakh Confl ict:Comparative Analysis

DubaiIRS Publishing House20r1


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Tofig F, MusayevAdvisory Opinion of the International Court of lustice on Kosovo andthe Nagorno-Karabakh Conflict: Comparative AnalysistsBN 978-9952-80.t0-7-6

01, 22 July 2010, the International Court of Justice rendered its ad-visory opinion on Kosovo, requested by the United Nations GeneralAssembly. In this opinion, the Court concluded that the adoption on17 February 2008 of the declaration of independence of Kosovo didnot violate any applicable rule of international law.This article examines the Court's arguments and findings and offers acomparative anlysis of the Kosovo sitution and the Nagorno-Kara-bakh conflict. In the view of the author, the advisory opinion of theInternational Court of lustice on Kosovo unambiguously rules out thelikelihood of precedent application of the Kosovo scenario to Nagorno-Karabakh.

Advisory opinion of the International court of Justice onKosovo and the Nagorno-Karbkh conflict:comparative nalysisTofrg F. MusayevLL.M in International Human Rights Law (Essex)A. Introduction

On 17 February 2008, a part of the internationally recognizedterritory of the Republic of Serbia under the United Nations interimadministration - Kosovo, with a majority ethnic Albanian popLrlation,- unilaterally declared its independence. A nurnber of states in theinternational community recognized Kosovo as a sovereign andindependent state.tThe process leading to this controversial political and legalsituation was accompanied by growing concern, in states confrontingsecession, about the dangerous and far-reaching repercussions ofthe unilateral declaration of independence. Both the non consensualsecession of Kosovo and the formal recognition ofthis Serbian provinceby a high number of states were followed with unconcealed hopein both the breakaway territories and among potential separatistsworldwide, as well as in states openly or covertly backing secessionistmovements in other countries.on 8 october 2008, the United Nations General Assemblyadopted resolution 63/3. proposed by Serbia, requesting that theInternational Court of lustice render an advisory opinion on thefollowing question I

"Is the unilateral declaration of independence by theProvisional Institutions of Self-Government of Kosovoin accordance with international lw?"According to the existing procedure, laid down in Article 66 of theCourt's Statute, the lYember States of the United Nations were invitedto furnish written statements on the question and to participate inthe hearings from 1to 11 December 2009. The authors ofthe abovedeclaration of independence were also given the opportunity toexpress their position during the course of the proceedings.On 22 lvly 2010, the Court rendered its advisory opinion,in which it concluded by a clear majority that "the adoption of the

Seventy-rwo siaies had lorma y recognized Kosovo by the end of November 2010.3

tsBN 978-9957-8010-7 6 O Tofiq F. lMusyev 2011


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declaration of independence of 17 February 2008 did not violategeneral international law, Security Council resolution 1244 (7999) orthe Constitutional Framework" and, consequently, "did not violate anyapplicable rule of internationl law".,On 9 September, the United Nations General Assemblyadopted, by consensus, resolution 641298, presented by Serbia andEuropean Union l4ember States, which cknowledged the contentof the advisory opinion, and welcomed the prospect of a dialoguebetween the parties, to be facilitated by the European Union.Unlike judgments, the Court's advisory opinions have nobinding effect. At the same time, the International Court of Justiceis the only international judicial institution of a universal characterwith generaljurisdiction. Obviously, the Court's advisory opinions andfindings contained therein are of particular importance and in practicecontribute to the development of international law.Though the Court's conclusion was that declaration did notviolate intrnational law, it is essential to note that the advisoryopinion of the International Court of Justice on Kosovo needs to beexamined within the larger context of a detailed textual analysis,as well as of the attached separate opinions and declarations ofthe various members of the Court. Below is an interpretation of the

Court's arguments and findings. which, in the view of the author,unambiguously rule out the likelihood of precedent application of theKosovo scenario to Nagorno-Karabakh.B. The Nagorno-Karabakh conflictAt the end of 1987, the Soviet Socialist Republic of Armenia openlylaid claim to the territory of the Nagorno-Karabakh AutonomousOblast (NKAO) of the Soviet Socialist Republic of Azerbaijan. Contraryto the Constitution of the USSR, which guaranteed the territorialintegrity and inviolability of borders of the Ljnion Republics, both theArmenian SSR and members of the Armenian community of the NKAOadopted a number of decisions to institute the process of unilateralsecession of the autonornous region from Azerbaijan. These decisionswere made to achieve either the incorporation of the NKAO into theArmenian SSR or the establishment of an independent "Republic ofNagorno-Karabakh". Armenia's claim is tht the process by which theunilateral secession of Naqorno-Karabkh was instituted purportedly

reflected the right of self-determination.3From the legal point of view, it is necessary to distinguishbetween events before and after the emergence of Armenia andAzerbaijan as sovereign states. Armenia's claims led to conflict andfrequent use offorce in the period between 19BB and 1991, when bothArmenia and Azerbaijan still constituted integral parts of the SovietUnion. These events must be legally subsumed under the headingof a non-international armed conflict raging within the borders of asingle sovereign state.lWhen the Republics of Armenia and Azerbaijan becameindependent at the end of 1991 beginning of 1992, the conflictpassed from one legal regime (governing non-international armedconflicts) to another (pertaining to international armed conflicts). Thedocumentary evidence proves that Armenia perpetrated an armedattack against Azerbaijan and occupied its territories. including theformer NKAO and seven adjacent districts; carried out ethnic cleansingon a massive scale; and established, on the captured Azerbaijaniterritory, an ethnically constructed subordinate separatist entity.sIt is essential to note that, according to the establishedinternational legal principle of uti possidetls, Azerbaijan validly cameto independence within the borders that it had had under Soviet law

in the period preceding the restoration of its independence. theseborders included the territory of the former NKAo as affirmed by theFor more informaton about lhe arglrments of armeni, see e.9. armen d's nitiareport under the Intern.tonal Covenant on Civil and Po iUcal Rights, UN Doc.ccPF.c.92lAod.2, J0ap Ir998; a -nis ilirial 'ep-r J'de-rhe lnrerndl ondCovenant on Economic, Socia and Cultura Rights, UN Doc. E/199o/s/add.36,9December 1998. See a so Sh.avakian, "Nagorno'Karabaqh: ega aspects",200s/appear ng on lhe website of the Mln stry of Fore sn Affa rs of A.menla, andthe note verbal from the Permnnt M ssion of armenia to the united NtionsOfhce at Genva ddressed to ihe Ofice of the UN Hiqh Commissioner for Human R9hts, trnsmitting the nformation entitled "Legal aspects for the rglrtstoself determination n the case of Nago.ny Karabakh'; UN Doc. E/CN.4/2005/G/23,22 Ma.ch 2005, which s essential y the same document minus annexes; as we Ias th ltter from the Permnent RepresentaUve of Armen a to the United Natins addressed to the Secretary Generdl, transmitt ng the memorandum entitled"Nqorny Karabakh: peaceful negotiations and Azerbaijan's m litaristic po icy'l uNDoc. A/63/74! 5/2009/!56,24 March ZAO9.See the etter from the Permanent Representtve ofazerbajan to the un ted Ntions addressed to the Secretary-Genera , transm tung the report entiiled "Thelegal coisequences of the arried aggress on ofthe Rep!blic of Armenia against theRepubl c of Azerbaijan", UN Doc. A/63/662-S/2OaA/ 812, 24 December 2008.For rnore lnrorrnat on, see e.g. UN Doc. 4/63/662-Sl2008/812, and ihe etter fromthe Perrnanent Representative of Azerbajn to the United Nations addressed tothe Secretary General, transmtting the report entilld "The internaiiona leg.lresponsibiities of Armenia as the be ligerent occupier oiAzerbijaniteriiory", UNDoc. A/63/692 S/2009/st,27 January 2009.

Accordance with international law f the unilateral declarattan af independence inrespect of Kosovor Advisory Opinlon of the Internat onal court of l!st ce, 22 l!ly2010, for text, see UN document A/641881, p. 46, para. 122.


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legitimate authoritjes of the USSR at the relevant time.6 Accordinqly,as far as the claims in relation to the post-independence period areconcerned, these are uniawful, tantamount to a violation of thefundamental norm of respect for the territorial integrity of states, aswell as constituting a violation of other peremptory norms of generalinternationl law.The Security Council of the United Nations has consistentlyreaffirmed both the sovereignty and territorial integrity of Azerbaijanand the inadmissibility of the use of force for the acquisition ofterritory. It has further recognized that Nagorno-Karabakh is part ofAzerbijan and called on a number of occasions for the withdrawal ofoccupying forces from all occupied territories of Azerbaijan.TThe General Assembly of the United Nations and otherinterntional organizations have adopted a similar position.sThe illegality of the separatist entity and its structures,estblished by the Republic of Armenia in the occupied territoryof the Republic of Azerbaijan, has been repeatedly stated at theinternational level.e No state in the international community hasrecognized the separatist entity as independent, not even Armenia,

For m ore nformation, see the etter fro m th Perm a n ent Re prese nt.tive oi Aze baijan to the United Nations addressed to the Secretary General, transmitiinqthe report entitled "Ihe fundameni norm ol the territorial ritegrity of sttesnd lhe right to se determinat on n the iiqht ofArmeni's revis onist c a ms",N oc. A/63/664-5/2008/823, 29 December 2008; Tofiq F. Mlsayev, Com-mentary to the report ofthe M nister oiDefens oiArmen a atthe pariamentaryhearings on the Ngorno Karabakh problem', Dlp omatiya Alm (Wor d of Dip omacy) journa No. 10 (2005); Tong F. Musayev, "The Naqorno'karabakh conflictladdressing some key e ements or legal nature", Irs Nasled ye (Hertage) jo!rnarNo.4 (16) (200s), Tofig F. Musayev, Bellgerent occ!pation of the territories ofA?erba jan', Irs Naslediye (Hertaqe) jo!rn No 4-5 (28-29) (2007), Tfis F. M!sayev, Fronr terltorlal claims to bel lqerent occupat on: lega ppr. sal"/ DiplomatyaAmi (world of Dip macy) journa No. 18 19 (2008); Tofis F. rvlsyev,''Legis ation of the USSR and scess onist clims in the tlrresho d of the Union'sd sintegration", 14ater a s ofthe Internaton conference Basic princip es forthesettlement of the confllcts on the terrtores of the GUAM sttes', Baku, 15-16Aprll 2008 (B.ku, 2008), pp. 88-91; Ilgar Planrmadov, Tfis F. Musayev, "Arme-n a Azerba jan confllct: history, law, mediation" (Tular Grif & K, 1* ed. (2006), 2tued. (2007), 2- ed. revised and amended (8aku,2008).Securty Counci resollrtions 822 (1993) of30Apri 1993, 853 (1993) of 29 luly1993; 874 (1993) of 14 October 1993; and a84 (1993) or 11 November 1993.See General Assembly resoLluon 621243 of 14 Mrch 2008; Resolution 1416(2005), adopted on 25 lanuary 200s by the Parl mentary Assembly of the Council or Europe; European Prliament resolouon 2009/2216(lNI) of 20 May 2010 oith need for an U strategy for the Solth Ca!cas!s.5e e.9. the letter from the Permanent Represeni.tive of Azrbaijan to the UnitedNarions addressed to the Secretary Gener1, trnsmitt n9 the information entt ed''Reaction ofthe intrntioa communty io the legal pariamentary eections'h d on 23 May 2010 in the occup ed N.gorn-Karbakh reg on of the Replb ic ofAzerbajanl UN Doc. A/64l8s1 s/2010/34s, 29lune 2010.

though it exercises effective control over the occupied territories ofAzerbaijan nd provides indispensable economic, political and mil,tarysustenance without which the illegal entity could not exist.10Since February 1992, the process of mediation on thesettlement of the conflict within the Organization for Security andCooperation in Europe (formerly CSCE) has continued. f4eanwhile,the Co-Chirs of the OSCE lvlinsk Groupll have proposed a set ofcore principles nd elements, which should form the basis for acomprehensive settlement of the conflict. In their Joint Statementson the Nagorno-Karabakh Conflict issued at the LAquila and lvluskokaSummits of the Eight on 10 July 2009 and 26 June 2010 respectively,the Presidents of the OSCE Minsk Group Co-Chair countries describedtheir proposal as reflecting "a reasonable compromise based on theHelsinki Final Act principles of non-use of force, territoril integrity,and the equal riqhts and self-determination of peoples". Accordingto the Joint Statements, the elements underlying the proposal ofthe OSCE 14insk Group Co-Chair countries include "the return of theoccupied territories surrounding Nagorno-Karabakh, interim statusfor Nagorno-Karabakh guaranteeing security and self governance,a corridor linkjng Armenia to Nagorno-Karabakh; final status ofNagorno-Karabakh to be determined in the future by a legally-bindingexpression of will, the right of all internally-displaced persons andrefugees to return, and international security guarantees, including apeacekeeping operation". L':However, the lack of clarifications in the Joint Statements asto the most important question concerning the appliction of theaforementioned principles of the Helsinki Final Act, particularly withregard to the determination of the final status of Nagorno Karabakh,could hardly contribute to overcoming the existing divergences in thepositions of the states concemed.Thus, Azerbaijan is confident that at the core of the ongoingpolitical process is "the settlement formula based on putting an end

uN Doc. A/63/664-Sl200a/a23, p. 49, paft. r7A.According to the decson taken at the CSCE BL.ldapest Summit (5-6 December1994), Heads of States .nd Governments oi the CSCE partic pating staies set upthe office of the Co-Chlrmanship of the lvlinsk Confrence for the coordin.t on ofall nredaton efforts within the CSCE framework, The Budpest Summit taskedthe CSCE Cha rman- n-Office to conduct negt at ons a med at the cnc us on ofthepoitica agreement on ihe cessation ofthearmed conflict, mplementaUon ofwhich wou d remve the conseq!ences of the confl ct and wo!ld a low conven nqthe Plnsk Conference. Since 1992 the Chalrmen of tlre M nsk Conference wereIta y in 1992-1993, sweden n 1994, Russia and Finland n 1995-1996. The officeof the tr p e Co-Cha rmansh p, ncudinq Russia, Frnce and the United staies ofamerica, was establshed n 1997.Texts of the lo nt Sltements are availab e at the Wh te House website.


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to the illegal Armenian occupation, the restortion of the sovereigntyand territorial integrity of Azerbaijan and ensuring the peacefulcoexistence ofArmenian and Azerbajjanicommunities in the Nagorno-Karbakh region within the Republic of Azerbaijan".13In contrast, Armenia believes that "[t]he core issue of theNagorno Karabakh conflict is the right to self-determination of thepeople of Nagorno Karabakh,",4 a right which was purportedly exercisedtwo decades ago15 and led to the establishment of an independentstate - "the Republic of Nagorno-Karabakh".'6Against this background, the reaction of both Armenia andAzerbaijan to the advisory proceedings of the International Court oflustice on Kosovo attracts particular attention. Azerbaijan particiDatedin the written and oral proceedings before the Court, while Armeniarefrained from joining the legal process and preferred to express itsviews through public statements from high-ranking Armenian officials.C. Armenia's interpretation of the advisory opinionAs far back as 2005, the then lvtinister of Foreiqn Affairs, VartanOskanian of Armenia, jn his article contributed to the special issueof Accord journal, explicitly referred to Kosovo and, in this context,expressed the view that "[o]ver the years, international developmentsand self determination processes in different parts of the world haveled to fundamental changes jn international thinking on the issuesunderlying the Karabakh conflict, as well as in the process and contentof the negotiations". He added in this regard that ,,[a]mong politicat,legal and academic experts. there is a growing wareness of thepossibility and reality of recognizing the right of self-determination inceTtain circumstnces". 17

After the International Court of Justice rendered its advisoryopinion, the officials of Armenia began drawing a parallel betweenKosovo and Nagorno-Karabakh more frequently and in more concreteterms. Some examples are given below in chronological order.According to Deputy f4inister of Foreign Affairs ShavarshKocharian of Armenia, the advisory opinion is "unprecedented insofaras the International Court ofJustice has for the first time addressed twoprinciples - the right of peoples to self-determination and territorialintegrity". Kocharian is confident that "where se f-determination exists,the question of territorial integrity is of minor importance, and it isprecisely what the Court said in its decision". He specifically refers tothe findings ofthe Court, according to which "general international lawcontains no app icable prohibition of declarations of independence".rBThis understanding brings the Deputy Foreign Minister of Armeniato the conclusion that Azerbaijan's position "completely contradictsinternational law" and that "the International Court of Justice has ineffect said 'yes'to the independence of two Albanian states, namelyAlbania and Kosovo".l'In his speech at the General Debate of the sixty-fifth sessionof the United Nations General Assembly, Minister of Foreign AffairsEdward Nalbandian of Armenia stated, "It]he advisory opinion adoptedby the International Court of Justice in Jul, reaffirmed the wisdomof the founders of this organization that made sure that one of thefLrndamental principles for maintaining peace and security in the world,the right of peoples to self-determination, can not be underrated inany way compared with the other principles of international law".'zoon 17 September 2010, in an interview. President of ArmeniaSerzh Sargsyan said, "Ii]f untiL recently someone would say that theright of peoples to self-determination contradicts another fundamentalright that of territorial integrity - then after the decision of theInternationl Court t The Hague everything became clear. This iswhy, at the OSCE informal meeting of ministers in Almaty, it wasstated that three principles on the basis of wh ich we are conductingsee e.9. the etter from the Permanent Representtive ofAzerbaijan to ihe UfitedNtions addressed to the Secretry cenert, UN Doc. A/65/515 S/2o1a/531, L9ociober 2010.lnterv ew with President of Armenia Sezh Sargsyan, The WaI Street taurnat, 23Aprir 2009, available t


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negotiations are of equal standing".,rOn 11 October 2010, President Sargsyan emphasized theimportance for Armenia of the Kosovo precedent and directly linkedthe findings of the International Court of Justice to the Karbakhissue. According to the President of Armenia, "at the first opportunemoment Ithe people of Karabakh] exercised their right of self-determination, i.e. unilaterally declared their independence..., actedin compliance with international law landl wait patiently lwhile] theinternational community recognizes Itheir] right to unilaterally secedefrom Azerbaijan"."hus, the key to the interpretation. by the Armenian officials, ofthe advisory opinion is the reference to the principles of the riqht ofpeoples to self-determination and the territorial integrity of states and,most importantly, the firm belief that the former principle outweighsthe latter. Such an optimistic view is based on the assumption flowin9from the conclusion of the International Court of Justice that "generalinternational law contains no applicable prohibition of declarations ofindependence".,r There can be little doubt that the Court's dvisoryopinion is seen by Armenia as having established that secession isindeed possible and that it is dependent upon force and the sjtuationthat results.D. What, specifically, the International Court of Justicesaid with regard to the principles of the right of peoples toself-determination and the territorial integrity of states?I. Th scop ofthe question posed by th ceneral AssemblyAs the Court made explicitly clear, "the question posed by the GeneralAssembly is clearly formulated. The question is narrow and specific;it asks for the Court's opinion on whether or not the declaration ofindependence is in accordance with international law".r4According to the Court, the General Assembly did not inquireas to what the legal consequences of such a declaration would be, norwhether Kosovo had achieved statehood. Nor did it inquire about the

validity or legal effects of the recognition of Kosovo by other states ':5At the same time. the Court recalled that "in past requests foradvisory opinions, the General Assembly nd the Security council,when they have wanted the Court's opinion on the legal consequencesof an action, have framed the question in such a way that this aspectwas expressly stated (see, for example, Legal Consequences forStates of the Continued Presence af South Africa in Namibia (southWest Africa) notwithstanding Security Council Resolution 276 (1970),Advisory Opinion, LC.J. Reports 1971, p. 16 a.'d Legal Consequencesof the Construction of a Wall in the Occupied Palestinian Territory,Advisory Opinion, LC). Repofts 2004 (I), p. 136\".In this regard, theCourt considered it unnecessary "to address such issues as whetheror not the declaration has led to the creation of a State or the statLlsof the acts of recognition in order to answer the question put bythe General Assembly"z6. The Court, accordingly, saw no reason toreformulate the scope of the question'zT nor express its position on theegal consequences of the declaration of independence.II. The right to self-determinationa) Generl international law nd the beneficiaris of theright to self-determinationHaving examined the questions of general international law, the Courtobserved the followinq with regard to the right of self-determinationl"During the eighteenth. nineteenth and earlytwentieth centuries, there were numerous instancesof declarations of independence, often strenuouslyopposed by the State from which independence wasbeing declared. sometimes a declaration resulted inthe creation of a new State, at others it did not. In nocase, however, does the practice of States as a wholesuggest that the act of promulgating the declarationwas regarded as contrary to international law. On thecontrary, State practice during this period points clearlyto the conclusion that international law contained noprohibition of declarations of independence. During thesecond half of the twentieth century, the internationallaw of self-determination developed in such a way as tocreate a riqht to independence for the peoples of non-

"President serzh srgsyan: Our main resourse lnteliqent potentia'; Protle jou.nal No. 36 (1s4), 18 September 2010, avai db e at the jo!rnals website ."Presidents Serzh Srgsyn and Dahilo Trk held joint press conference in thefrane||ork at the otficial visit of the President of Sloven ta Armenia", a\a tahte atthe website of ihe President or Arnren a Advisory opinion, p. 39, pata. a4,Advisory opinion, p. 25, oara. 51.10 11


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sejf-governing territories and peoples subject to aliensubjugation, domination and exploittion".The Court further referred to its two previous decisions (SouthWest Africa, 1971) East Timor, 1995) and one advisory opinion(Legal Consequeces of the Construction of a Wall in the OccupiedPalestinian Territory, 2004), thus substantiting the aforementionedconsiderations. The Court, accordingly, recalied its earlier practiceof addressing the right to self-determination in the context ofindependence and reiterated the application of this right with regardto (a) peoples of non-self-governing territories and (6) peoples subjectto alien subjugtion, domination and exploitation.Continuing its consideration of the practice of application of thepeoples' right to self-determination, the Court noted the following:

"A qreat many new States have come into existenceas a result of the exercise of this right lthe right toindependence - T.M.l. there were, however, alsoinstances of declarations of independence outside thiscontext. The practice of States in these latter casesdoes not point to the emergence in international lawof a new rule prohibiting the making of a declaration ofindependence in such cases".2eIn response to the views expressed in the course of the proceedingsthat the population of Kosovo has the right to create an independentstate as either a manifestation of a right to self-determination orpursuant to what has been described as a right of"remedial secession",the Court noted the following I"[O]ne of the major developments of international lawduring the second hlf of the twentieth century hasbeen the evolution of the right of self-determination.Whether, outside the context of non-self-governingterritories and peoples subject to alien subjugation,domination and exploitation, the international law ofself-determination confers upon part of the populationof an existing Stte a right to separate from that Stateis. however, a subject on which radically different viewswere expressed by those taking part in the proceedingsand expressing a position on the question. Similardifferences existed regarding whether international law

Ibtd., pp. 29-30, pata.79.Ibid., pp. 36-37, pa?. /9.

provides for a right of'remedial secession' and/ if so, inwhat circumstances, There was also a sharp differenceof views as to whether the circumstances which someprticipants maintained would give rise to a right of'remedial secession'were actually present in Kosovo".r0The Court, however, considered it unnecessary to resolve thesequestions and qive an opinion on them. The following conclusion ofthe Court is self-explanatory:

"The ceneralAssembly has requested the Court's opiniononly on whether or not the declaration of independenceis in accordance with international law. Debatesregarding the extent of the right of self-determinationnd the existence of any right of "remedil secession",however, concern the right to separate from Stte...[T]hat issue is beyond the scope of the question posedby the General Assembly. To answer that question, theCourt need only determine whether the declarationof independence violated either general internationallaw or the lex specialis created by Security Councilresolution 1244 (1999)".r1As far as the right to self-determination is concerned, the Court,as mentioned above, unambiguously reaffirmed ats application inthe context of independence with regard to (a) peoples of non-self-governing territories and (b) peoples subject to alien subjugation,domination and exploitation. This view fully coincides with thefollowing understanding expressed by Azerbaijan in the course of theoral proceedings before the Court:"Both the textual analysis of the existing provisions onse f-determination and the travaux prparataires ofinternational instrLrments containing such provisionsgive cause for distinguishing two aspects of self-determination, namely, (i) the internal aspect, whichmeans that all peoples have the right to pursue freelytheir economic, social and cultural development withoutoutside interference, and (ii) the external aspect,which includes the right of peoples to determine freelytheir political status and their place in the internationalcommunity based upon the principle of equal riqhts

't' Ibid., p.38, paft. 82.I ]bld., p.34, pra.83.12 13


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and exemplified by the liberation of peoptes fromcolonialism and by the prohibition to subject peoples toaiien subjugation, domintion and exploitation".r,And fu rther:"As far as the external aspect of self,determination isconcerned, the people ofthe colonially defined territorialunit in question and peoples who find themselves insimilar circumstances, i.e. those subjected to aliensubjugtion, domination nd exploitation, includingpeoples under foreign military occupation, are entitledto the'external' self-determination, the main contentof which is to freely determine the poiitical status of theterritory as whole".IIt is obvious that the international legal practice and doctrine ofapplication of the right to self-determination with respect to thepeoples of non-self-governing territories and peoples subject to aliensLrbjugation, domination and exploitation have nothing to do with theArmenian inhabitants of Nagorno-Karabakh. Therefore, any possiblecomments purporting to prove the contrary should be rejected fromthe outset. It is essential to note that unsubstantiated statements are

not sufficient here. ^4ost important is that the United Nations shouldrecognize the relevant status of the aforementioned categories ofpeoples.rlThus, pursuant to Article 73 of the Charter of the UnitedNations, non-self-governing territories are those, which,,have not yetattained a full measure of self-government". The 1960 Declarationon the Granting of Independence to Colonial CoLlntries and peoples3,elaborated criteria of non-self-governing territories, providing thatsLrch territories are considered within Chapter XI of the Charter of theUnited Nations, entitled "Declaration regardjng Non-Self-GoverningTerritories". More thn B0 former colonies attained independencesince the creation of the United Nations. Although almost a non-self-governing territories, covered by Chapter XI, have al.eadv attaineda'ull mesure ot self-governnent, there still exist 16 such ie.rito es

administered by externl powers.16 In 1962 the General Assemblyestablished the Specil Committee on Decolonization of the UnitedNations to monitor implementtjon of the 1960 Declaration and tomake recommendations on its application.The Court's advisory opinion refers to self-determination asarising, in addition to the colonial context, from those situations whereone power dominates the people of a foreiqn territory by recourse toforce. In other words, self-determination is violated whenever there isa military invasion or belligerent occupation of a foreign territory.rT lhisinterpretation, as reaffirmed in the Court's advisory opinion, has beenearlier stated in the 1970 Declaration of Principles of InternationalLaw Concerning Friendly Relations and Cooperation among States inAccordance with the Charter of the United Nationsrs and in the 1977Additional Protocol I to the Geneva Conventions of 1949. The latterinstrument, in Article 1 (4), explicitly refers to "peoples ... fightingagainst colonial domination and aiien occuption and against racismregimes in the exercise of their right of self-determintion".In its annual resolutions on the qLrestion of universal realizationof the right of peoples to self-determination, of which both Armeniaand Azerbaijan are among the co-sponsors, the General Assemblyproceeds from a similar position. Thus, the Assembly regards acts offoreign milatary intervention, aggression and occupation as resultingin the suppression of the right of peoples to self-determination andother human rights and, in this regard, calls upon those statesresponsible to cease immediately their military intervention in ndoccupation of foreign countries and territories.rlIt is essential to note that, in situations where one powerestablishes its domination over foreign territory the suppression ofthe right to self-determination occurs not only with regard to thepeople residing in the territory in question and subjecting to directand effective domination, subjugation and exploitation but also with

Such territorles are: western Sahar, Anq!ll (Un ted k ngdom), Bermuda (Unit-ed Kingdom), Brtsh Vrgn Islands (Unted Kingdom), Cayman rsands (UnredKingdom), Fa kland Islands (Mavinas) (United Ktngdom), Montserat (UnredKfgdom), st. Helena (Unted Kingdom), Turks and Ca cos Isands (Unted King-dom), united states virgin Is afds (united sttes), G bra tar (united Kinqdom),Ame.ican samo. (United sttes), Guam (United stares), New Ca edonia (Frnce),Pitcairn (United k ngdom), Tokelau (New zealand). Se the UN website: .Antonio Cassese, "Se f-Determination of Peop es: A Legat Reappra sal'(Cdmbridge,1995), p.99.General Assemb y resol!t on 2625 (xXV) of 24 october 1970.See e.g. General Assembly reso !tion 641149 of 18 December 2009, en|t ed''Un versal rea ization of the right of peoples to self-determ nat on",

Statement by the Permanent Representative of the Repubttc of Azerbijn to theUn ted Naiions at the ora proceedings,3 December 2009, the Haqle, para.30,vr ble dr lCi \ websrre rno. www. c crj,o q.do. -et ri es. t41l1 \/lb.par ..For rnore nformation, see e.q. UN Doc. A/63/664,s/2008/823, pars. 111-116.Genra Assembly reso ution 1s14 (XV) of 14 December 1960.

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rgard to those who hav been forced to leave the territory and seekasylum as a result of foreign military intervention, aggression andoccupation. Thus, on 11 November 2010, givjng a statement afteraction in the Third Committee of the United Nations General Assemblyon the resolution entitled "Universal realization of the right of peoplesto self-determination", the representative of Belgium, on behalf ofthe uropean Union, pointed out, inter aliat that "ltlhe EuroDeanUnion would also like to have seen the right to return reflected linthe resolutionl in accordance with Article 13, paragrph 2, of theUniversal Declaration of Human Rights,,.In the contemporary world, Palestinians underlsraeli occupationsince the 1967 war represent an example of a people entiued to theright of self-deterrnination. Both the appljcation of this right to thePalestinians and the fact of occupation of their terrjtory have beenwidely recognized by the international community. This was noted ina number of resolutions adopted within the United Nationslo and bythe International Court of Justice in the Construction of a Wall case.alIt has been internationally recognized that the territoriesof Azerbaijan are under occupation and that Arrnenia has beenactively involved in the creation and maintenance of that situation.Accordingly, by virtue of the provisions of international instruments,the occupation by Armenia of a part of the territory of Azerbaijanis unlawful and amounts to a violation not only of the principle ofrespect for the territorial integrity of states but also of the right of thepeople of Azerbaijan to self-determination.b) Unilateral secession and its.'remedial', contextAs the Court noted, it had not been required by the question askedto take a position "on whether international law conferred a positiveentitlement on Kosovo unilaterally to declare its independence or, afortlori, on whether international law generally confers an entiflementon entities situated within a State unilaterally to break away fromit".a': According to the Court, "it is entirely possible for a particularact such as a unilateral declaration of lndependence - not to bein violtion of international law without necessarily constituting theexercise of a right conferred by it".a3

see, e.q., GenerdlAssemb y resolutions 3236 (xxtx), 55/85 and s8/163. See a soGeneralAssembly resolutions 38/16 and 41l100, and Cssese,..Sef Determ nationof Proole5: A Leod P-appra s| , o. 02 d"d -o tow,ng.ICal Reports, 2004, pp. 136, 183, 197 nd 199 See tso, e,g,, Cassese, /b/d,, pp.Advisory opinion, p.27, Dara.56.

This understnding completely coincides with the position ofAzerbaijan expressed in its written statement of 17 April 2009aa andoral statement of 3 December 200945:"Secession from an existing sovereign State doesnot involve the exercise of any right conferred ininternational law and hence has no place within thegenerally accepted norms and principles of internationallaw which apply within precisely identified limits".It is also notable that, although the General Assembly did not ask inits question about the content and scope of the principle of the right ofpeoples to self-determination, the Court nevertheless confirmed thatthis principle applied to the peoples of non-self-governing territoriesand peoples subject to alien subjugation, domination and exploitation.At the same time. the Court concluded that unilateral secession outsidethis context. including so-called "remedial secession", was beyond thescope of the question posed by the General Assembly. By recognizing,as mentioned above, that unilateral secesslon may not constitute theexercise of a riqht, the Court, in reality, instead repudiated attempts toassociate every similar case of secession as such with the internationallegal principle of the right of peoples to self-determination ratherthan questioning the consistency of unilateral secession with regardto international law. In other words, the authoritative support hasbeen given to Azerbaijan's view, according to which actions aimed attearing Nagorno-Karabakh away from Azerbaijan have nothing to dowith the exercise of the right to self-determination.A few words should nevertheless be said about"remedial secession':As is known, principal difficLllties arise in situations where anethnic aroup, living compactly together in a geographical region orenclave within a state, claims to be a people entitled to the right ofself-determination and seeks to secede from one state in order toeither join another with which it shares an ethnic affinity or form itsown state.!6 In such situations, members of the seceding groupoften intersperce their claims with vague allegations of human rightsviolations and discrimination against them in the state in which theyreside. There is a view that the remedial clause ("remedial secession")in the 1970 Declaration of Principles of International Law allows

Wr tlef Staternent of ihe Republic of Azerbijan, 17 Apr I 2009, para, 25, avitbteat rc]ls webs te .Sttement by the Permanent Representat ve of the Rep!b ic of Azerbajan io theUn ted Nations at the ora proceedings/ para.28.Asbjorn Eide, "Possible wys nd nreans of fac litating the peacerut and construc-tive solut on of problems nvolv n9 minor t es'/ second progress report, UN Dc. E/cN.4/srb.2/1992/37, p. 32, paras. 156 1s7.16 77


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unilateral secession of a minority group whose existence is in danger.lhe DeclarLron corLins lhe following provis.on:"Nothing in the lsection on self-determination] shallbe construed as authorising or encouraging any actionwhich would dismember or impair, totally or in part,the territorial integrity or political unity of sovereignand independent states conducting themselves incompliance with the principle of equal rights and self-determination of peoples as described above and thuspossessed of a government representing the wholepeople belonging to the territory without distinction asto race. creed or colour",47

Indeed, as professor l\4alcolm Shaw has noted, the implication hereis that states that do not conduct themselves in compliance with theprinciple of equal rights and self-determintion of peoples, and thusare not possessed of a government representing the whoie peoplebelonging to the territory without distinction of any kind, are notprotected by the principie of territorial integrity.lsHowever, those advocating the theory of secession by virtueof the mentioned provision of the 1970 Declaration of Principles ofInternational Law nonetheless differ in their views as to what exactlycompliance with the principle of self-determination is required.As the Supreme Court of Canada noted in the Reference reSecession of Quebec, it remains unclear whether the propositionwhich is based on the legitimization of the right of secession pursuantto the clause in question actually reflects an established internationallaw standrd.'EIt is doubtful that, aside from the cases relating to SouthAfrica and Southern Rhodesia, this clause reflects any actual practiceof its direct implementation or even an accepted customary rule ofinternational law.50The Court's advisory opinion leaves unnswered the questionof whether the right to "remedial secession" exists and if so, who

qualifies as the beneficiary of this purported right and what the criteriaof lts application are.In its statement in the course of the oral proceedings beforethe Court, the representative of Azerbaijan pointed out the following:"We share the view of those States participating inthe present proceedings that there is no proof of theexistence of secession as a form of sanctjon or remedyin contemporary internationai law. This understandingis supported both by the text!al nalysis of the existingprovislons on territorial integrity and self determinationand by State practice demonstrating the absence ofany successful application of the so clled 'remedialSecession"',5r

Possible attempts of the Armenian side to find recourse in the ideof "remedial secession" is unsustinable not only because the Courtexplicitly refused to address the issue of "remedial secession" on anequal footing with the affirmation of the right to self determination ofthe peoples of non-self-governing terrjtories and peoples subject toalien subjugation, domination and exploitation, but also because ofthewell-known fctual circumstances pertaininq to the conflict betweenArmenia and Azerbaijan. These circumstances pertain, first of ll/ tothe historical burden of systematic expulsion of Azerbijanis fromtheir ancestral lands; extensive rights of the Armenian population inAzerbaijn, including administrative autonomy in Nagorno Karabakh;the contrasting lack of similar rights and privileges guaranteed forthe once significantly larger Azerbailani population of Armenia; and,finally, the iragic consequences ol Armelidn dggression.III. The principle of territorial integrity and unilatraldeclrtion of independencea) Inter-state chracter of appliction of the principle ofterritorial integrityIn its advisory opinion, the Court touched upon the scope andappllcation of the principle of the territorial integrity of states, notingthat "[s]everal participants in the proceedings before the Court havecontended that a prohibition of unilateral declartions of independenceis implicit in the principle of territorial integrity".5':

The sme clause s reflected also n the V enna Dec artlon and Proqramme ofact on adopted on 25 lufe 1993 at the world conference on Hlman R qhts.MacolmN.Shaw, Peoples, Teritorialsrn and Boundaries",8 Elropean lourna ofInternatinl Law Ns 3 (1997), pp.174-507, at pp,442 443,Reference re secession of Quebe., Suprerne Cou.t of Canada, 20 Alqust 1948,in Anne Byeisk, Self-determintion in Internatonal Lawr Quebec and LessonsLearned' (Kl!wer, 2000), pp. 455'505, at pp. 497 499.Fr more informaton bout ths question/ see UN Doc, A/63/664 s/2aoa/a23, Sttement by the Permnent Representt ve i the Rep!b ic of Azerbajan to theUn red \dt o : d- t" oral p-o eedi 9.. p-d. r0Adv sory opinin, p. 37, par 80.1a 19


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The Court recalled in this regard that "the principle of territorialintegrity is an important part of the international legal order andis enshrined in the Charter of the United Nations..."sr At the sametime, referring to Article 2, paragraph 4, of the Charter of the UnitedNations, as well as to the relevant provisions of the 1970 Declarationof Principles of Interntional Law and the 1975 Helsinki Finl Act,the Court came to the important conclusion that "the scope of theprinciple of territorial integrity is confined to the sphere of relationsbetween States".54Consequently, according to the Court, the principle ofterritorialintegrity is limited to inter-state relations and does not governdomestic relations within the state concerned, including uniateraldeclarations of independence.Proceeding from this argumentation, the Court made it clearthat "general international law contains no applicable prohib'tion ofdeclarations of independence" and, accordingly, "tht the declarationof independence of 17 February 2008 did not violate generalinternational law".55 The Court however did not clarify its position onthe question of the legality of the declaration of independence and onwhether this declaration was in accordance with international law. AsJudge Bruno Simma correctly noted in his declaration, "[t]hat an actmight be 'tolerated' would not necessarily mean that it is'legal', butrather that it is'not illegal"'.s6Following thjs logic, the Court concluded that the declarationof independence of 17 February 2008 did not also violate SecurityCouncil resolution 1244 (1999) and the Constitutional Framework,which, as the Court noted, "constituted the international law applicableto the situation prevailing in Kosovo on 17 February 2008".s7Therefore, the Court gave careful consideration to identifyingthe authorship of the declaration of independence. As the Courtnoted, "different views have been expressed regarding thjs issue",s3further addinq that "ltlhe identity of the aLlthors of the declarationof independence ... is a matter which is capable of affecting theanswer to the question whether that declaration was in accordancewith international law".5'q On this question, the Court arrived at thefollowing conclusion:

"[T]aking all factors together, the authors of thedeclaration of independence of 17 February 2008 didnot act as one of the Provisional Institutions of Self-Government within the Constitutional Framework, butrather as persons who acted together in their capacityas representtives of the people of Kosovo outside theframework of the interim administration".60The Court's interpretation gives rise to the view that the clearlyframed powers and responsibilities established to govern the conductof the Provisional Institutions of Self-Government of Kosovo conferredLrpon them no entitlement to unilaterally declare the independenceof Kosovo. At the same time, the authors of the declaration ofindependence, identified as such by the Court, were not bound bythe framework of interim administration established by SecurityCoucil resolution 1244 (1999), while the resolution itself provided noguidelines for the final determination of the situation in Kosovo andintroduced no prohibition on issuing a declaration of independenceapplicable to those who adopted the declaration of independence of17 February 2008.The conclusion of the Court regarding the powers of theProvisional Institutions of Self Government of Kosovo. the authors ofthe declaration of independence and the legal framework establishedby Security Council resolution 1244 (1999) proceed undoubtedlyfrom the factual and legal circumstances specifically pertining tothe Kosovo situation. Therefore, the Court made it clear tht "[t]hedeclaration of independence of 17 February 2008 must be consideredwithin the factual context which led to its adoption".6lThe Court's determination that the scope of the principle ofterritorial integrity is confined to the sphere of relations betweenstates has not introduced any novelty into the theory and practiceof international law. In the period preceeding the adoption of thedeclaration of independence, most leading international lwyerswere of the opinion that there was no prohibition to secession ininternational law insofar as the principle of territorial integrity appliedin inter-state relations and not between the state and its owntti lbld., p. 47, pata. tO9.t Ibtd,, p.27, pata.57." Lbitl., p. 39, pa1.84./Dld., uecrarfio. or J!dqe 5r.nrn, par,9.'' Lbid., p. 41, pata 91.Jr 1bid., p. 39, para- 103.5' Ibid., p. 26, parc.52.

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population.6,However. as professor James Crawford has noted, the reasonthat seceding groups are not boLrnd by the international legal principleof territorial integrity is not because international law in any sensepermits or privileges secession, but because secession falls to bedetermined within the domestic legal system of the affected state,which is entitled to resist challenges to its territorial integrity, whetherinternal or external.63 According to the same author, while lnternationallaw does not prohibit secession, neither does it prohibit suppressionof any attempt to secede by the government of an affected state.6aThe same understanding has been clearly reflected in the statementof Azerbaijan in the course of the oral proceedings before the Court.6sb) Conditions under which the principle of territorialintegrity applies in situations of unilateral secessioni) Ilregality of unitaterat secessions and applicdbility ofthe principle of territorial integrity in situations of a violationof peremptory norms ofgeneral international ldw (jus cogens)At the same time, by referring to the contemporaneous practice of theSecurity Council, the Court reminded of the important exception fromthe rule, according to which general international law contains noapplicable prohibition of unilateral secessions. As the Court pointedout, some unilateral declarations of independence had been, in thepast, specifically repudiated by the Security Council on the followinggrounds:"[T]he illegality attached to the declarations ofindependence ... stemmed not from the unilateralcharacter of these declarations as such, but from the

fact that they were, or would have been, connected withthe unlawful use of force or other egregious violationsof norms of general international law, in particular thoseof a peremptory character (JUs cogens). In the contextof Kosovo, the Security Council has never taken thisposition".66In other words, the Court draws attention to the fact that, in thecontext of Kosovo, the Security Council has never taken a position onthe illegality of the declaration of independence in connection "with theunlawful use of force or other egregious violtions of norms of generalinternational law, in particular those of a peremptory character Uuscogens)".It is notable that the Court's position on this issue coincidedwith the following view of Azerbaijan expressed in the course of theoral proceedings before the Court:

"The position based on the assumption that internationallaw remains 'neutral' with regard to a secessionistattempt does not create conditions for legitjmizingsecession in any sense, nor does it mean that secessionautomatically succeeds and the international communityaccepts its consequences without the consent of therecognized sovereign.As is well known. a secessionist attempt is oftenaccompanied by violation of international law, includingits peremptory norms. such as those prohibiting thethreator use of force, racial discrimination and apartheid.International law also applies if a secessionist attemptis in violation of self-determination, as well as if it iscontrolled from outside or coupled with external aid".67

ii) Viotdtion of peremptory norms of general intemationalIaw (jus cogens) during the conflict between Armenia andAzerbaijanIt is generally accepted and recognized that peremptory norms ofgeneral international law (jus cogens) include the prohibitions ofaggression, genocide, slavery, racial discrimination, crimes against

See e,q. M colm N. Shaw, "Tiile to Terr tory n Africat InternaUonal Legal lss!es"(Oxford, 1986), p. 21s; lames crawiord, Rsponse to Experts Repofts of theAmlc!s C!riae", 15lanury 1998, n Bayeisky, Self-determination in hternat onlLawl Qlebec and Lessons Learned'(kuwe\ 2AOO), pp. !s7 1s8, para.6; AainPellet, "Report: Leqal Opinion on Certa n Questions of hterntional Law Raised bythe Reference", in Bayefsky, pp. 8s-123, at p. 98; Georges Ab Saab, "Report: TheEffectiv ty Req!ired ofan Eniily that Declares its Indpendence in Order for ltto beConsldered a State n lnternationa Law", in Bayefsky, pp, 69 74, alp.T3jIlomasM. Franck, "Report: opinion Directed at Q!eston 2 ofthe Referencel n Bayefsktpp. )5 A4, at7) 79; Thomas M. Franck, Postmodern Triballsrn nd the Riqht toSecession", in C.Brlmnn, R.Lefebet M.Zieck (eds.), Peoples and lVinorties inhternational Law" (M.riinus Nijhoff, 1993), pp.3-27, at 12.Janres Crawford, /b,d.Ibid., p. 159, para.9.Siatemeni by the Permanent Representt ve of the Republic of Azerbaijan to theUnited NaUons at ihe ora proceed nqs, paras. 12 & 14,Advisory pinion, pp.37 38, prd.81.sttement by the Perrnanent Represeniat ve of the Repub ic of Azerbalan io thet n led \ar o.c ar t-e o'l p,o eor-q-, pa.d. I1

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humanity nd torture, and the right to seif-determination.6s Therecan be no doubt that Armenia and the subordinate separatist regimeillegally established by it on the occupied territory of Azerbaijan bearresponsibility for a violation of a number of such norms.In 1993, as mentioned above, the Security Councii adoptedfour resolutions on the Nagorno-Karabakh conflict, condemningthe use of force and demanding immediate, full and unconditiona-iwithdrawal of the occupying forces from all the occupied territoriesof Azerbaijan. In these resolutions, the Councii recognizes thatNagorno Karabakh is part of Azerbaijan and reaffirms respect for thesovereignty and territorial integrity of the Republic of Azerbaijan andthe inviolability of its interntional borders. The General A;sembtvadopted a similar position in its reso,ution 62/243 of 14 l4arch 2OOg;entitled "The situation in the occupied territories of Azerbaijan,,. Theillegality of attempts aimed at capturing a part of the teiritory ofAzerbijan has also been noted in the documents of the authoritativeregional organizations.Thus, on 19 September 2001, the Committee of 14inisters ofthe Council of Europe adopted its reply to the written question on theissue of recognition ofthe territorial integrity ofAzerbaijan by Armenia.The Committee of lvlinisters recalled its Communiqu adopted on 11May 2001, reaffirming the "support for the respect for internationallyrecognised borders, sovereignty and territorial integrity of statesthroughout Europe, as well as for the other principles f internationallaw set out in the United Nations Charter, the CSCE Helsinki FinalAct and other relevant texts". At the sme time, the Committee off4inisters noted the statement made by one delegtjon (Armenja -lM.), according to which "it accepted lthe above] sentence on theunderstanding that there was no hierarchy between the principles ofinternational law referred to, whether these are expljcifly mentionedor not". Responding to the aforementioned question and Armenia,sexplanatory statement, the Committee of Iyinisters noted that"[t]he right to self determination of peoples and the other principlescontained in the Helsinki final act will be eqLrally and Lrnreservedlyapplied, each of them being interpreted taking into account theothers". According to the opinion of the Committee of t4inisters. .,theright to self-determination should be respected, in conformity withthe purposes and principles of the Chrter of the United Nations andwith norms of international law, including those relating to territorialintegrity of states". The Committee further stated that.,this right mayonly be exercised following peaceful negotiations,,. while the julse of

force for the pLlrpose of acquiring territory is unacceptable and anyresultant acquisition cannot be recognised as lawful,,.6eConseqLlently, addressing the specific question in connectionwith the conflict between Armenla and Azerbaijan, the Committeeof I\4inisters circumscribed the scope of application of the riqht toself-determintion and .eaffirmed that this right can be exe;cisedby peaceful means only and without prejudice to the territorialintegrjty of states. Like the Security Council of the United Nations,the Committee of tlinisters of the Council of Europe expliciuy referredto t he inadmissibitity of tne Ltse of force for the acquisit ion oi terriioryand the illegality of such forcibte acquisition.The main elements qualifying the nature of the conflict havebeen reflected in the documents prepared by Terry Dvis and DavidAtkinson, the rapporteurs of the parliamentary Assembly of theCouncil of Europe. Parliamentary Assembly resolution 1416 (2005)of 25 January 2005 noted particularly that "lc]onsiderable parts oithe territory of Azerbaijan are still occupied by Armenian forces,, andthat "the military action, and the widespread ethnic hosti ities whichpreceded it, led to large-scale ethnic expulsion and the creation ofmono-ethnic areas which resemble the terrible concept of ethniccleansing". The Assembly also stated that,,independence and secessionof a regional territory from a state may only be achieved througha lawflrl nd peaceful process based on the democratic support ofthe inhabitants of such territory and not in the wake of a; armedconflict leading to ethnic expulsion and the de facto annexation ofsuch terrilory to anotl-er stale". oObviously, the Assembly's view as to the attainment ofindependence and secession does not imply an invitation to Armeniato reconsider its strategy and tactics for achieving the same resultthrough a lawful and peaceful process. The matter in the presentinstance concerns the appraisal of the actions of the Armenian sideaimed at breaking the territorial integrity of Azerbaijan.While acknowledging that acts of military force committedagainst Azerbaijan constitute a violation of peremptory norms ofgeneral international law Cius cogens), international organizationsdo not confine themselves to mentioning only the unlawful use ofRecagnitian fthe territonl inregity ofAzerbaijan by.4rmer, Repty oithe com_mittee oi Ministers of the Counct of Europe to Written Oleston No 396 bv t\4rs.tt ,-,a. 19 Septemoe' 2001.Resolltion ofthe Partamentry Assembty ofrhe Counc tof Europe 1416 of 25 Jan_Jd.!-2005 eaulpo The.o-flrr o\ lhe \d9o--o KdrdDath eoron oeatr wrtn b/the OSCE M nsl Conr e- : pd-as. I A /. 5ee tso t ." repo- o.I.e potI.dtAr-fairs Cornm ttee oithe Parliamenta.y Assembty ofthe cour; tof Europe,document10364.29 Nvemher rnabiiity, Crawiord/ "The lnternation.t Law Commission,s Art cte onIntroduction, Text nd Commentar es,, (cambridqe, 2002), p. 148, para.5,

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force. ThLrs, the Security Council resolutions make specific referenceto violations of international humanitarian law, including thedisplacement of a large number of civilians in Azerbaijan, attacks oncivilians, and bombardments of inhabited areas. It is beyond disputethat such acts amount to war crimes, crimes against humanity, andracial discrimination.The European Court of Human Rights arrived at an importantconclusion in the face of unprecedented massacre committed againstthe civilian population of the town of Khojaly in Nagorno-Karabakh,qualifying the behaviour of those carrying out the incursion as "actsof particular gravity which may amount to war crimes or crimesaginst hLrmanity". The European Court made in this regard thefollowing observation, which leaves no doubt as to the question ofresponsibility fo. the crime:

"It appears that the reports available from independentsources indicate that at the time of the capture ofKhojaly on the night of 25 to 26 February 1992hundreds of civilians of Azerbaijani ethnic origin werereportedly killed, wounded or taken hostage, duringtheir attempt to flee the captu.ed town, by Armenianhghters attacking the lown..."lConsequently, there exist a number of distinctions of kind between theNaqorno-Karabakh conflict and the Kosovo situation, both of whichare regulated by divergent sets of rules. Firstly, s a matter of law,Armeni's involvement and. most importantly, its military presencein the territory of Azerbaijan, makes the Nagorno Krabakh conflictan international (inter-state) armed conflict between Armenia andAzerbaijan, and thus falling within the purview of international lawand, in particular, within the principle of the territorial integrity ofstates. By contrast, the situation in Kosovo, from the outset, carrieda different legal tag of non-international or intra state armed conflict,

though with considerable and substantive international influence andpresence. Accordingly, in the view of the Court, the declaration ofindependence, promulgated in the absence of any clearly definedprohibition contained in Security Council resolution 1244 (1999) orthe Constitutional Framework, and adopted by the authors, whoare neither subject to international law nor addressees of Securitycouncil resolution 1244 (1999), could not violate any applicablerule of international law. Secondly, the attempt to unilaterally effectCase Fatullayev v. Azerbaiian,European Court of Human R qhts, Appl cat on no. 40984/07, l!dgment of the22 Aptil 2010, parc. A7.

26

the secession of a part of the internationally recognized territory ofAzerbaijan is directly connected with the unlawful use of force andother egregious violations of norms of general international law, inparticular those of a peremptory character (jus cogens). Among anumber of international political and judicial institutions, this facthas been affirmed in the resolutions of the Security Council on theNagorno Karabakh conflict. By contrast, as the International Court ofJustice noted, "[i]n the context of Kosovo, the Security Council hasnever taken this position".i':It is also notable that the resolutions of the Security Council onthe Nagorno-Karabakh conflict, recognizing tht Ngorno Karabakhconstitutes part of Azerbaijan and reafirming the inviolability ofinternational borders and the iadmissibility of the use of force forthe acquisition of territory, were adopted after the Armenians ofNagorno-Karabakh had unilaterally declared their "independence".Consequently, the Security Council made it absolutely clear thatthe unilateral declaration of independence in a given situation hadproduced no legal effect whatsoever.Obviously, if the effective situation has been achievedin violation of a fundamental international legal order, such aviolation prevents the international community from recognizingthis situation as legal and bars the acquisition of statehood bya claimant entity,Tr As Azerbaijan noted in the course of the oralproceedings before the Court, "the most important issue is thelegitimacy of the process by which the de facto secession is, orwas, being pursued".74 Accordingly, "Ia]n entity created in breachof interntional and domestic law, even if it has all the factualattributes of a state, is not a state".75 Precisely for this reason,in the 19 years since the adoption of the unilateral declarationof independence of the "Nagorno-Karabakh Republic," no state inthe international community has recognized this self-proclaimedentity, which exists as a foreign military occupation and survives byvirtue of Armenia's political, military, econornic and other support.

E. Conclusion1. In its advisory opinion, the International Court of.lustice didnot address the question of the legal consequences of the declarationr: Adv sory op nion, pp. 37-38, para. 81.rr David Rai, Stathood a nd the Law or Selr- Delerminat on " ( Kluwer, 2002 ), p. 38.1 Stalement by the Permanen! Representative of the Republc of azerbaijn to theUnited Nations at the ora proceed ngs/ para. 15.


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of independence. Consequently, the Court did not clarify whetherKosovo had the right to unilaterally secede from Serbia and, generallyspeaking, whether such secession conformed with international law,as well as whether or not the declaration of independence of Kosovohad led to the creation of a state. The Court also left unanswered thequestion pertaining to the status of the acts of recognition of Kosovoby other states.2. In the view ofthe Court, it is entirely possible foracts ofunilateralsecession to not constitute the exercise of any riqht conferred byinternational law and hence to not be associated with the internationallegal principle of the right of peoples to self-determination. In otherwords, authoritative support has been given to Azerbaijan's position,according to which, actions aimed at breaking Nagorno-Karabakhaway from it have nothing to do with the right to self determination.3. The Court clearly reaffirmed the application of the right toself-determination in the context of independence with respect to (a)peoples of non-self-governing territories nd (b) peoples subject toalien subjugation, domination and exploitation. This conclusion of theCourt fully corresponds with the view of Azerbijan expressed in thecourse of the proceedings.4. The interntional legal practice and doctrine of application ofthe right to self-determination with respect to the peoples of non-self governing territories and peoples subject to aljen subjugation,domination and exploitation have nothing to do with the Armenianinhabitants of Nagorno-Karabakh.5. The Court left unanswered the question ofwhether internationallaw qenerally conferred an entitlement on entities situated within astate to unilaterally break away from it and whether the right to so-called "remedial secession" exists.6. The Court made it clear that the principle of territorial integritywas limited to inter-state relations and did not govern domestic affairs,including unilateral declarations of independence, Consequently, inthe Court's view, general international law contains no applicableprohibition ofdeclarations of independence and, accordingly, that suchdeclaration with respect to Kosovo did not violate general internationallaw. However, the Court did not say whether that declaration was inaccordance with international law.7. The opinion of the Court that general international lawcontains no applicable prohibition of declarations of independence isof no relevance to the Nagorno-Karabakh conflict, which in view ofits legal tag of international (inter-state) armed conflict falls withinthe purview of international law and, in particular, the principle of theterritorial integrity of states.

B. Furthermore, the Court recalled the important exceptionfrom the rule, according to which general international law containsno applicable prohibition on unilateral secession. Such exceptionarises when attempts to uniJaterally secede are connected with theunlawful use of force or other egregious violations of norms of generalinternational law, in particular those of a peremptory character Uuscogens). The Court supported the approach of Azerbaijan on thisquestion expressed in the course of the proceedings.9. Attempted unilateral secession of a part of the internationallyrecognized territory of Azerbaijan has been accompanied with theunlawful use offorce and other egregious violations of norms of generalinternational law, in particular those of a peremptory chracter (JUscoqets). Among other international political and judicial institutions,this fact has been reffirmed in the resolutions of the Security Councilof the United Nations on the Nagorno-Karabakh conflict. By contrast,as the International Court of lustice noted, in the context of Kosovo,the Security Council had never taken this position.10. Armenia's claims as to unilateral secession of Nagorno-Karabakh from Azerbaijan are unsustainable in internationl aw,while its actions, up to and including the resort to force, constitutea violation of international legal principles, including in particular theprinciple of the territorial integrity of states. Consequently, among anumber ofdifferences between the Nagorno-Karabakh conflict and theKosovo situation, the following stand outt the actions of Armenia areclearly aimed at capturing by force a part of the territory of Azerbaijan;the "puppet" nature of the regime established by it in the occupiedterritories of Azerbaijan; as well as war crimes, acts of genocide andcrimes against humanity committed by the occupying power duringthe conflict. These differences a priori rule out the application of theKosovo scenrio to Ndqorno Krabakh.

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On 22 July 2010, the Internationl Court of Justice rendered its advisory opinionon Xosovo, requested by the United Ntions Generl Assembly ln this opinion,the Court conciuded that the doption on 17 Februry 2008 of the declaration ofindependence of Kosovo did not violate any applicb e rule of international law.This article examines the Court's arguments and findings and offers a compara-tive nalysis of the Kosovo sitution and the Ngorno_Karbakh conflict. In theview of the uthor, the dvisory oplnion of the International Court of Justice onKosovo unambiguously rules out the likelihood of precdent pplication of theKosovo scenrio to Naqorno-Karabakh

Tofig F, t{usayev ls serving as counsellor of the Permanent lvlission ofAzerbaijan to the L,nited Nations. Prior to his current posting, he was Dlrector ofthe Foreign Policy Planning and Strtegic studies Deprtment of the l'4inistry ofForeign Affairs of Azerbaijan. Tofig 14usayev is former Head of the Human Rightsand lnterntional Humanitarian Law Division and Deputy Director of theInternational Law and Treaties Department of the Ministry of Foreign Affairs ofAzerbijn. He also held various positions in the Permnent Mission of Azerbijanto the nited NaUons Office and other interntional organlzations at Geneva ln2001, he was elected as vice-president of the World conference gainst Racism,Racial Discrimintion, Xenophobia and Related Intolerance (Durban, SouthAfrica). In 2009, he ws elected s Vice-Chairman of Twenty-eighth l4eeting ofstatea Parties to the Internationl covennt on civil and Political Riqhts He grad'uated from the Faculty of Law t the Baku State lJniversity nd holds LL.lv1 inInternational Human Rights Lw from the University of Essex Tofig Musayev is anauthor of three books nd a number of articles in international law.

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comparative analysis on nagorno-karabagh and kosovo

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