The Nagorno-Garabagh conflict has been going on since 1988. The
conflict between Armenia (although it denies its involvement in the conflict
claiming that it is just “an interested party”) and Azerbaijan is considered to
be the most important conflict in the South Caucasus. Though the object of this
conflict is Nagorno-Garabagh Autonomous Region (the region was called so as an
administrative-territorial area during the Soviet time), seven other districts
of Azerbaijan which have nothing common with this autonomous region are also
occupied by the Armed Forces of Armenia. So, as a result of the conflict
approximately 20% of the territory of the Republic of Azerbaijan is still under
occupation and more than one million Azerbaijanis have become refugees and
internally displaced persons. In May 1994 the parties concluded cease-fire
agreement which is still in force today. The Republic of Azerbaijan states that
Armenia should be recognized as an aggressor according to the Charter of the UN,
but it is not the case yet. The Republic of Armenia claims that the Armenians of
Nagorno-Garabagh are entitled to secede from Azerbaijan and build their own
state on the base of the self-determination principle of international law. Now
the Minsk Group of the OSCE is exercizing a mediation function between the
parties to the conflict. No political agreement on the settlement of the
conflict has been achieved yet.
Nagorno-Garabagh conflict, territorial integrity, self-determination, peoples,
minorities, occupation, uti possidetis.
Before speaking about the legal aspects of the Nagorno-Garabagh conflict, we
should tackle some issues concerning the legal status of this territory.
In Soviet times this enclave, called Nagorno -Garabagh Autonomous Region
(hereinafter referred as NGAR) had no direct land border with Armenia. First of
all, it should be mentioned that after the collapse of the USSR,
remained within the state of Azerbaijan in terms of international law.
In their struggle for political status of the region, the Armenian side
illegally claimed either the annexation of this area to the Republic of Armenia
or its independence. According to their major arguments, prior to the conflict
75% of the population of Nagorno-Garabagh comprised the Armenians and they were
imposed to a socio-economic discrimination and cultural exploitation by
Azerbaijan for decades. As for the Republic of Azerbaijan, it fairly demands the
protection of its territorial integrity on the base of the universally
recognized norms and principles of international law.
At the same time, Azerbaijan offers high degree of autonomy for Nagorno-Garabagh
only within its territorial integrity.
On the other hand, Armenia continuously insists that Nagorno-Garabagh had
historically been their native land and therefore, despite the fact that NGAR
had been within the former Azerbaijanian SSR (Soviet Socialistic Republic), it
can not remain within the independent state of Azerbaijan after the collapse of
the USSR. According to the official position of Armenia in this regard the
boundaries in the former USSR Republics were just of an administrative
Basic legal aspects of the conflict can be summarized as above. But, what
response do the national law valid during the Soviet period as well as
international law give to the allegations of Armenia?
Firstly, it should be mentioned that according to the official position of the
Republic of Azerbaijan Armenia must be recognized as a directly participating
party to this conflict. But, Armenia declares that this is a conflict between
Azerbaijan and Nagorno-Garabagh, and Armenia is involved here just as
Furthermore, they declare that the Armenian population of Nagorno-Garabagh has
the right to self-determination and they are entitled to establish their own
independent state in accordance with this right.
Since this conflict was an internal affair of the USSR prior to its collapse,
relevant norms of the Soviet law were applicable to this conflict.
For analysis of the conflict from the legal point of view, I will address the
last Constitution of the USSR of
After the collapse of the USSR the nature of the conflict has changed.
Therefore, relevant norms and principles of international law should be applied
to the conflict. I will tackle these issues from two aspects:
Nagorno-Garabagh conflict will be discussed as an internal affair of the
Republic of Azerbaijan;
here I will touch upon the issue of national minorities according to
international law and examine whether the Armenian population of
Nagorno-Garabagh was entitled to secede from Azerbaijan;
2) Secondly, the
Nagorno-Garabagh conflict will be tackled as an international armed conflict
between the Republic of Armenia and the Republic of Azerbaijan.
Legal assessment of the Nagorno-Garabagh
conflict according to the Soviet law
unions by their status according to the Constitution of the USSR
According to Art. 71 of the Constitution of the USSR from 1977,
Soviet Union consisted of 15 union republics and these republics stood on the
highest level of hierarchy
of regional unions, established on national basis.
The abovementioned highest level of hierarchy
was followed by the undermentioned regional unions, established on a national
autonomous regions (oblasti);
national regions (okrugi).
According to Art. 72 of the Constitution,
only union republics
were entitled to secede freely from the USSR.
On the threshold of the demise of the USSR, a new comprenensive law, regulating
the mechanism of such secession, was adopted
will touch upon this law again below).
Nagorno-Garabagh conflict as an internal affair of the USSR
Prior to the
collapse of the USSR, the Nagorno-Garabagh conflict was not an issue of
international nature, but rather an internal affair of the USSR. Notwithstanding
this, the Armenian side was trying to apply the right to
to prove their arguments.
the conflict was developing from the very beginning within the framework of the
communist ideology in the USSR, discussions in this field were conducted not on
the base of the right to self-determination, as stipulated by international law,
but upon «the
Leninist principle on self-determination».
As the relevant Leninist principle was more popular in the USSR than the
documents adopted by the UN in this field and as it supported the right to
self-determination for all nations
full secession), supporters of the secession of Nagorno-Garabagh were benefiting
much from this idea. Naturally, such idea had nothing common with the norms and
principles of international law concerning the right to self-determination.
Did the USSR
Constitution entitle Nagorno-Garabagh to secede from the Azerbaijanian SSR?
Nagorno-Garabagh in the USSR Constitution
should investigate the status of Nagorno-Garabagh according to this Constitution.
Art. 86 of the Constitution Nagorno-Garabagh was an autonomous region. The
Article states that
Autonomous Region is an integral part of the territory of the respective Union
In Art. 87.3. of the
Constitution Nagorno-Garabagh is mentioned as an autonomous region constituting
an integral part of the Azerbaijanian SSR.
possibilities for Nagorno-Garabagh
mentioned, only the union republics were entitled to secession and such right
could be exercised in respect to the entire USSR.
Nagorno-Garabagh were claiming secession from the Azerbaijanian SSR and
annexation to the Armenian SSR. The question is whether the Armenian population
of Nagorno-Garabagh was entitled to put forward such a demand on the base of the
USSR Constitution? In this respect, like the Constitution of the former
Yugoslavia, the USSR Constitution also contained relevant Art. 78.
That Article stated:
„The territory of a
Union Republic may not be altered without its consent. The boundaries between
the Union Republics may be altered by mutual agreement of the Republics
concerned, subject to ratification by the Union of Soviet Socialist Republics.”
As it is
evident, unlike autonomous territories, territorial integrity of the union
republics was regulated by the constitution and any change to it could be made
only by consent of the relevant republic.
On the other
hand, there was no agreement between the Azerbaijanian SSR and the Armenian SSR
on the secession of the Nagorno-Garabagh Autonomous Region from the
adopted in 1989 by the Supreme Soviet of the Armenian SSR on annexation of
Nagorno-Garabagh to Armenia was the highest point of these processes, which
completely contradicted to the provisions of the abovementioned constitution.
Taking into consideration that in 1988, as the conflict broke out, the USSR
still existed as a state and its constitution was still in force, one
understands the anti-constitutional nature of the demand of the Nagorno-Garabagh
Armenians. Moreover, the special meeting of the Presidium of the Supreme Soviet
of the USSR, held on
18 July 1988,
discussed a request of the Council of the NGAR on secession of Nagorno-Garabagh
from the Azerbaijanian SSR and its annexation to the Armenian SSR, and decided
to keep the NGAR in the composition of the Azerbaijanian SSR.
Alma-Ata Declaration of
and the issue of territorial integrity
compare dismembration processes in the former Yugoslavia and the USSR, it
becomes evident that unlike Yugoslavia, union republics of the USSR
process of dismembration in line with international law, i.e. through the
Alma-Ata Declaration adopted on
21 December 1991.
Preamble of the declaration says that the states adopt the declaration by
recognizing and respecting territorial integrity as well as inviolability of
existing borders of each of the signatory states.
provision once more confirms that union republics had taken an obligation to
recognize existing borders even upon collapse of the USSR. By not recognizing
territorial integrity of Azerbaijan in its further practice the Republic of
Armenia has violated also this provision.
we may say that valid legislation during the Soviet period did not envisage
possibilities of secession for autonomous regions, and borders among union
republics could be changed only upon their consent. Taking all these into
consideration, it is noteworthy that separatist actions of the Armenians of
Nagorno-Garabagh have violated relevant provisions of the USSR Constitution as
well as territorial integrity of the Azerbaijanian SSR within the USSR.
Assessment of the
Nagorno-Garabagh conflict upon the relevant documents of international law
the Nagorno-Garabagh conflict is not possible without analyzing relevant norms
and principles of international law.
of this issue is explained by the fact that it covers the contradiction between
two important principles of international law: territorial integrity of states
and self-determination of peoples.
self-determination by international law
War II, the right to self-determination began to change from political concept
into legal principle.
began to be reflected in fundamental documents of the contemporary international
law. As an example, we can refer to the UN Charter, Covenant on civil and
as well as
Covenant on economic, social and cultural rights.
concerning the right to self-determination are not explained in details in these
specific documents. Therefore, the UN General Assembly pledged itself to resolve
this task. In this connection, we can enumerate resolutions of the UN General
These resolutions established close relationship between the right to
self-determination and the process of decolonization, and the International
Court of Justice confirmed that this aspect of the right to self-determination
constituted a part of international law. Nevertheless, it should be mentioned,
that there are significant differences between the provisions of resolutions
It becomes evident from the text
of several international documents that the right to self-determination goes
beyond the notion of colony.
Article 1 of the abovementioned
Covenants state that peoples enjoy the right to self-determination.
states that the right to
self-determination is the right, which can be applied to all peoples and is the
duty, which shall be followed by all states.
It should be mentioned that the
nature and character of the right to self-determination can always cause tension
among the states.
between the right to self-determination and territorial integrity
According to some international lawyers, there is a conflict between the
principles of self-determination and territorial integrity.
This approach to the issue raises a question which of these principles should
prevail. It should be pointed out that nearly in all international legal
documents provisions stipulating the right to
self-determination are followed by the provisions emphasizing inviolability of
borders and territorial integrity of sovereign
states. For example:
General Assembly (GA) Resolution 1514 (XV) „The Declaration on Granting of
Independence to Colonial Countries and Peoples“, Abs. 6:
“Any attempt aimed at the partial
or total disruption of the national unity and the territorial integrity of a
country is incompatible with the purposes and principles of the Charter of the
Helsinki Final Act dated from the 1st of August 1975 also limits
self-determination by territorial integrity of states. 8th principle
of this act on equal rights and the self-determination of peoples states:
States will respect the equal rights of peoples and their right to
self-determination, acting in all times in conformity with the purposes and
principles of the Charter of the United Nations and with relevant norms of
international law, including those relating to territorial integrity of States”.
Obligations reflected in this
document have were further reiterated in the Paris Charter
(1990), Final Declaration of the Lissabon Summit (1996) and the European
Security Charter (Istanbul Summit). All these provisions allowed some lawyers
and states to prove the prevalence of territorial integrity over
self-determination. Moreover, it was suggested that provisions of resolution
1514 only apply to «the peoples of colonies». Professor Gros Espiell wrote in
this connection: „The right to self-determination
of peoples does not apply to peoples which are not under colonial or alien
domination, since Resolution 1514 (XV) or other UN instruments condemn any
attempt aimed against…territorial integrity of a country”.
Conclusion stemming from such logic is
that today self-determination is of no importance,
as there are no colonies any more.
Nevertheless, such interpretation of self-determination is rejected. Because,
this interpretation would pose a danger on universality of this principle as per
clause 1 of resolution 2625, which stipulates self-determination as a
fundamental right for all peoples. However, even in this document
self-determination is limited by conditions on territorial integrity. Clause 7
of this resolution says:
“Nothing in the foregoing paragraph shall be
construed as an authorizing or encouraging any action, which would dismember or
impair, totally or in part, the territorial integrity or political union of
sovereign and independent States conducting themselves in compliance with the
principle of equal rights and self-determination of peoples as described above
and thus possessed of a government representing the whole people belonging to
the territory without distinction as to race, creed or color”.
Having read this provision
thoroughly, one can say that this could serve as the only provision, to which
the Armenian population of Nagorno-Garabagh might refer. However, as mentioned
above, the Armenian population of Nagorno-Garabagh blaimed official Baku for
social-economic discrimination and cultural exploitation. In fact, this
provision of the resolution 2625 does not prohibit a secession as a result of an
internal conflict. When reading this provision from the aspect of the right to
self-determination as a human right, we may conclude upon textual interpretation
of the resolution that secession is not prohibited as an action in contradiction
to international law. As such, provision concerning protection of territorial
integrity of states envisages a reservation which states that territorial
integrity of a state is protected if it respects the right to self-determination
and possesses a government representing the whole
people belonging to the territory without distinction as to race, creed or
colour. We should mention with regard to this
provision, i.e. representative government, that Nagorno-Garabagh was the only
autonomous region in the USSR, represented in the Supreme Soviet of the
Azerbaijanian SSR by deputy chairman.
In general, Nagorno-Garabagh was represented
in the Supreme Soviet of the Azerbaijanian SSR
by 10 MPs of the Armenian nationality.
Moreover, number of the Armenian MPs in the Regional Council of Nagorno
-Garabagh exceeded the number of the Azerbaijani MPs due to predominance of the
Armenian population in the region.
According to Karl Doehring, a
German international lawyer,
ethnic groups may have the right to secession only if they are exposed to an
excessive discrimination. This
means that in case of systematic gross violation of human rights
and absence of any state mechanism
against such violation, national minorities can benefit from the right to
self-determination and establish their own state.
But, the Armenian population of Nagorno-Garabagh was not exposed to any
violation of human rights and their
actions bear separatist characher.
of Nagorno-Garabagh entitled to secede from Azerbaijan for establishing their
own state as national minority?
between the notions of people and national minority
After collapse of the USSR the Armenian
population of Nagorno-Garabagh
has changed their previous position.
If previously they aimed at a secession from Azerbaijan and annexation to
now they claim to establish an independent state upon the right to
self-determination of peoples. However, in this case it is important to take
into consideration the difference between the rights of «peoples»
In all documents of international law the right to self-determination is granted
only to peoples. “People” is any group living on the territory of any state and
building majority of its population. Only in this sense people are entitled to
self-determination and creation of their own state. As to minorities (national,
ethnic, linguistic, religious, etc.), they are not entitled to determine their
political status. In this connection, Art. 27 of Covenant on civil and political
“In those states in which ethnic,
religious or linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with other members of their group,
to enjoy their own culture, to profess and practice their own religion, or to
use their own language.”
Declaration of the UN GA on rights of national, ethnic, religious and linguistic
18.12.1992, does not either grant to minorities right to self-determination.
Article 2 of this declaration contains a similar provision on the rights of
minorities. Article 8 para. 4 of the declaration is as follows:
in the present Declaration may be construed as permitting activity contrary to
the purposes and principles of the United Nations, including sovereign equality,
territorial integrity and political independence of States”.
The Armenian population, living in Azerbaijan, are ethnic minorities like
Russians, Georgians, Ukrainians, Jewish and other ethnic minorities.
The Armenian population of Nagorno-Garabagh can be afforded only abovemerntioned
rights (Art. 27 of the Covenant). This means that they are entitled to determine
their status for effective participation in political, social, economic,
cultural, religious and public life of Azerbaijan. They may not commit any
action, which might pose a danger to
sovereignity and territorial integrity of the Republic of Azerbaijan according
to international law.
1921, as the
territorial integrity of Finland and
the right to
self-determination of the population of Åland Islands (Ahvenanmaa), mainly
consisting of Swedes, was investigated, a report of International Lawyers'
Commission prepared for the
Council of the League
concluded that compared to Finns the population of Åland Islands was just a
minority», not «people». The report of the commission stated furthermore that
regulations applied to the people can not be applied to minorities. The most
important conclusion was that minorities are not entitled to self-determination.
was submitted to the
Council of the League
of Nations. The Council approved the report and attached it to its resolution.
According to that resolution,
Finland over Åland Islands
The resolution also called for according of guarantees to the inhabitants of the
island and achieving of an agreement over the neutral status of the island.
example is more recent. On August 27, 1991, the European Communities, taking
into consideration the processes in the former USSR and Yugoslavia, adopted
declaration. According to the declaration, the European Communities would never
recognize the frontiers, which were not established through peaceful means i.e.
negotiations. The declaration established a Peace Conference and Arbitration
Commission of the EC for Yugoslavia. Opinion 2 adopted by the Commission
comments on the possibility of application of the reight to self-determination
to the Serbian people of Croatia and Bosnia-Hersogovina. The Serbian population
on these territories constituted 1/3 of the total population. The opinion
rejected the demand of the Serbian people for the right to self-determination.
In its opinion, Arbitration Commission declared
„that the Serbian population in
Bosnia-Herzegovina and Croatia must be afforded every right accorded to
minorities under international conventions as well as national and international
guarantees consistent with the principles of international law…”.
Thus, prevalence of the principle of territorial integrity over
self-determination was declared once again. First part of the opinion states:
„It is well established
that, whatever the circumstances, the right to self-determination must not
involve changes of existing frontiers at the time of independence except where
the states concerned agree otherwise.”
frontiers is also important in assessment of the Nagorno-Garabagh conflict.
Because, representatives of both Armenia and Nagorno-Garabagh are constantly
claiming that Nagorno-Garabagh has never been within independent Azerbaijan
during the Soviet period had exclusively administrative nature. By such
statements they are trying to justify separatist actions of the Armenian
population of Nagorno-Garabagh.
Such problem arose also in the former Yugoslavia and it can be called
in legal terminology.
Role of the
Principle Uti possidetis iuris in this regard
During dismembration of
Yugoslavia the abovementioned Arbitration Commission of the EC referred to the
principle of uti possidetis.
In other words, this principle was applied in order to limit the boundaries of
the newly established independent states, This principle envisages that
frontiers of the territories, which are not subject to self-government, remain
unchanged after they gain independence. Although this principle was in
particular applied in the processes of liberation from colonies,
Arbitration Commission of the EC declared that uti possidetis has already
gone beyond the context of colonies and become a general principle. To
substantiate its position once again, the Commission referred to the case
concering the frontier dispute between Burkina Faso and Mali, decided by the
International Court of Justice.
Here, the judgement of the International Court of Justice was based on the
principle of uti possidetis:
“Nevertheless the principle is not a special
rule which pertains to one specific system of international law. It is a general
principle, which is logically connected with the phenomenon of the obtaining of
independence, wherever it occurs. Its obvious purpose is to prevent the
independence and stability of new States being endangered by fratricidal
It can be stated in general that
if the Nagorno-Garabagh issue is brought before the International Court at any
time, then we may say with confidence that the decision will be in favor of
Azerbaijan under the principle of uti possidetis. However, it should also
be mentioned that since Azerbaijan and Armenia do not recognize compulsory
jurisdiction of the International Court of Justice according to Art. 36 para. 1
of its Statute, or due to the absence of special agreement between the parties
on submission of the dispute to the International Court and in general, since
the Republic of Armenia denies its involvement in this dispute as a party,
possibility of submitting the dispute to the ICJ is at zero yet.
Summarizing the abovementioned,
we can classify the evidences against separatism as follows:
1. The right to
self-determination of people can only be exercised on the basis of the maxim
pacta sunt servanda (treaties must be respected);
2. International Law is the
law of states and not of peoples or individuals. States are the subjects of
international law and peoples are the objects of that law;
3. The so-called principle of reciprocity; as a state
cannot oust a part of itself, equally a part of the state cannot forcefully
secede from that state.
Such approach to
self-determination reflects the position of majority of countries, which are
able to protect their territorial integrity. As such, usually, if there is a
discrepancy between territorial integrity of any independent state and
self-determination of any national minority, living on the territory of this
state, only internal self-determination (i.e. granting autonomy) can be taken
into consideration. Any claims, which demand that the principle of
self-determination should support secession of any part of state from it, have
always been rejected. With only exception of Bangladesh (in that case, without
interference of the Indian army Bangladesh could not have gained independence),
no other separatist claim has been accepted by the international community since
1945. As it is evident, Bangladesh events did not serve as precedent, these
events were mainly explained by «oppression theory». Linguistic, ethnic and
cultural differences of Bengalis and geographical separation of the territory
from Pakistan served as a ground for establishment of the state of Bangladesh
according to abovementioned theory (around one million people were reported to
be killed during the conflict).
Assessment of the
referendum, held on December 10th 1991 in Nagorno-Garabagh, in terms
of international law
4. Nagorno -Garabagh Conflict as an international armed conflict
committed in August 1991 in Moscow, served as a signal for most Soviet Republics.
followed by the processes of secession from the USSR and the Soviet republics
declared their independence.
2nd of the same year the meeting of the Regional Council of
Nagorno-Garabagh declared the Nagorno-Garabagh Autonomous Region as a new
Republic of Nagorno-Garabagh. The meeting was held without participation of the
Azeri delegation. On November 26th of the same year Azerbaijan
reacted to this illegal action by cancellation of the autonomous status of
republic held referendum on independence on December 10th and
declared its independence on January 6th of 1992.
legitimacy of this referendum, held in Nagorno-Garabagh on ethnic basis, the
Armenian side refers to the Law of the USSR dated 03.04.1990 on
for resolution of the issues related to secession of Soviet Republics from the
should be noted, that this law itself was contrary to the Constitution of the
USSR, because it contradicted the abovementioned Articles (78, 86, 87) of the
Art. 3 of this Law,
which is based on the principles of Leninism and which supports
self-determination of not only peoples, but also of ethnic minorities
secession from any state), envisaged right to self-determination for autonomous
regions of the Soviet Union, too.
Armenia's position on legitimacy of this referendum had no substantiation both
in national and international law. As such, there is a fact, which is obviously
ignored (may be deliberately) by the Armenian side in connection with this
when the referendum
was held (10.12.1991) Azerbaijan was an independent state.
provisions of the abovementioned Law could not be applied to the independent
Republic of Azerbaijan and its territory.
Armenian side can not substantiate legitimacy of their secession from Azerbaijan
by oppression theory
for the reason of discrimination of the Armenian people of Nagorno-Garabagh).
Even if there were facts of discrimination, the Armenian population of
Nagorno-Garabagh could not refer to it. Because, in the former Soviet Union
government was rather centralized and local governments
of the Union)
were directly subordinated to the instructions of the Kremlin. Moreover, the
Armenians and the Azerbaijanis of Nagorno-Garabagh had joint administration
council in Nagorno-Garabagh. The Head of the Council was Armenian by
nationality, there were Armenian schools in the enclave, welfare of the
population was very good and etc.
these into consideration, we can insist that any fact of discrimination towards
the Armenian population of Nagorno-Garabagh is out of question.
referendum is neither legitimate from the point of view of valid international
legal regulations, as the referendum was held without consent of the independent
Azerbaijani state exclusively on an ethnic basis.
Ethnic principle of self-determination has never been taken as a serious factor
by international community in assessment of any claims against a state.
Moreover, ethnic principle of self-determination can not be considered
legitimate without consent of all related parties, because the referendum, held
on this basis is of discriminative character by itself. If the Armenian
population, living in Nagorno-Garabagh expresses their wish of independence
through self-determination, then this wish should raise a suspicion as the fact
of their ability of self-determination. As mentioned above, on the threshold of
the conflict, the Armenian population of Nagorno-Garabagh did not aim to gain
independence at all, their major intention was to annex Nagorno-Garabagh to
There are many facts which prove irredentist character of the intention of the
Armenian population. Appointment of the Minister of Defence of the so-called
Republic of Nagorno-Garabagh Serj Sarkisyan as the Minister of Armenia in 1993,
election of Robert Kocharyan (although he remains a citizen of Azerbaijan from
the legal point of view) as the President of the Republic of Armenia in March of
1998 and February of 2003,
non-cancellation of the resolution of the Supreme Soviet of the Armenian SSR
dated 01.12.1989 on annexation of Nagorno-Garabagh to Armenia, involvement of
the Armed Forces of the Republic of Armenia in this conflict and other evidences
prove that the conflict bears irredentist character and is closely connected
with the issue of territorial integrity.
when we consider the conflict from this point of view, we should treat it as an
international armed conflict and the Republic of Armenia should be accepted as
When we treat
the conflict from this aspect, first of all the violation of the Art. 2 para. 4
of the UN Charter by the Republic of Armenia should be examined. Such violation
results out of Armenia's sending of its armed forces to Nagorno-Garabagh or its
support for the Armenian people, residing there.
of the UN Charter prohibits threat or use of force in international relations,
which contradict the purposes and principles of the UN.
use of force according to the UN Charter
should be examined, which type of force is envisaged in Art. 2.4 of the UN
unequivocally say that this provision prohibits use of military force in
international relations, i.e. direct use of armed forces against the territory
or armed forces of any country.
it should be examined, whether Art. 2.4 of the Charter envisages
use of force, i.e.
support of any aggressor state or sending of armed groups to the territory of
It is not
possible to get a comprehensive information from the text of the abovementioned
provision in this regard. Other provisions of the UN Charter are also unhelpful
in this respect. However, we can refer to the Declaration of the UN General
Assembly of 1970 “On friendly relations among States” as a customary law. This
Declaration contains the following provisions on prohibition of use of force:
state has obligation to refrain from organizing or encouraging organization of
illegal forces (including mercenaries) or armed groupings for the purpose of
intervening to other state's territory»
with the Nicaragua case, the International Court of Justice referred to this
provision and stated that principally intensive support to rebels on the
territory of other state can also be treated as use of force, as envisaged in
Art. 2.4 of the Charter.
relevant provision on self-determination:
state has to refrain from any actions aimed at partial or complete destruction
of national and territorial integrity of any other country or state».
provisions of the resolution also prohibit use of force in any form.
envisages use of indirect force. Taking the abovementioned into account, we can
conclude that although Armenia denies its direct involvement in the conflict, it
has violated Article 2.4 of the UN Charter by its indirect involvement, i.e.
sending of armed groups, or providing intensive support for the Nagorno-Garabagh
Thus, the Republic of Armenia has violated legal values like territorial
integrity and political sovereignty of Azerbaijan protected under the said
Article, and such violation contradicts the purposes of the UN.
The abovementioned article prohibits use of force only in international
relations, i.e. between two states. Thus, this article does not envisage use of
forcee within state boundaries.
That is why, we can absolutely say that even if the conflict can be treated as a
conflict between Azerbaijan and Nagorno-Garabagh, i.e. as an internal
(non-international) armed conflict, as insisted by the Armenian side, then
Azerbaijan will still preserve its right to use armed force at any time against
Nagorno-Garabagh separatists with the purpose of restoring its territorial
integrity observing relevant norms of international law
Protocol II from 1977 to Geneva Convention of 12.08.1949 on protection of the
victims of non-international armed conflicts).
Some reflections on
the Resolutions of the UN Security Council on the Nagorno-Garabagh Conflict
the maintenance of
international peace and security
in accordance with
Chapter VII of the UN Charter
In accordance with Article 39 of the Chater, the UN Security Council determines
the existence of any threat to the peace, breach of peace, or act of aggression.
Then, in accordance with Article 41 and following articles of the Charter,
decision may be taken to impose non-military or military sanctions.
a question may arise, whether the SC is governed by its own discretion while
adopting the resolutions under Chapter VII, or any legal restrictions do exist?
Article 24.1 of the UN Charter confers upon the SC the primary responsibility
for the maintainance of international peace and security. That is why, there is
a unanimous opinion on this issue that the SC has a broad freedom of action in
actual and legal assessment of three cases (threat to the peace, breach of peace
and act of aggression) considered in Article 39 of the Charter. Here, the SC may
only be subject to a limited legal control by third organizations.
According to Article 24.2 sentence 1 of the UN Charter, the SC shall act in
accordance with the purposes and principles of the UN.
However, these purposes and principles are systematically restricted by Chapter
VII in accordance with Article 24.2 sentence 2 in comparison with Article 2.7
sub-sentence 1 of the Charter.
Thus, the SC should settle the issue of existence of the conditions, envisaged
in Article 39 by making comments on the content of the norm when any suspicion
arises. Here, it should be governed by its broad discretion and the UN purposes
Legal basis for
resolutions adopted by the SC on the Nagorno-Garabagh conflict according to the
When reading resolutions of the SC on Nagorno-Garabagh conflict,
we may conclude that the SC has not adopted these resolutions on the basis of
Chapter VII of the Charter. Because, any resolution, adopted in accordance with
Chapter VII, should contain at the end of its preamble the following sentence:
under Charter VII of the Charter».
None of the resolutions, adopted on the Nagorno-Garabagh conflict, contains such
provision. A question arises, what was the legal basis for the UN SC to adopt
the said resolutions?
In this connection, only Article 36 of the Charter can be referred to. This
article says that the SC
may, at any stage of a dispute of the nature referred to in Article 33 or of a
situation of like nature, recommend appropriate procedures or methods of
Now, let us
analyze these resolutions one after another:
adopted by the SC on
30 April 1993
states the fact of deterioration of the relations between the Republic of
Azerbaijan and the Republic of Armenia, Armenia is not mentioned here as a party
involved in the conflict. Moreover, the resolution stresses the sovereignty and
territorial integrity of all states of the region, inviolability of
international borders and inadmissibility of the use of force for acquisition of
territory. Further, the SC demands
withdrawal of occupying forces
the Kelbadjar district and other recently occupied areas of Azerbaijan”.
As it is evident, the expression
does not clearly specify who is meant, and naturally, similar expressions make
it difficult to comment on the resolution.
I think, it would have been better to concretely demand immediate withdrawal of
the Armed Forces of the Republic of Armenia and separatist armed groups of
Nagorno-Garabagh from the occupied territories of Azerbaijan. But, we should
mention here that if we take into consideration procedural difficulties in
decision-making mechanism of the SC,
it was impossible to include such provision in the text of the resolution.
Further, the SC calls the parties to continue the negotiations within the
framework of the peace process of the Minsk Group of Conference on Security and
Cooperation in Europe (CSCE).
Preamble of the SC resolution
29 July 1993,
restates the fact of deterioration of the relations between the Republic of
Azerbaijan and the Republic of Armenia, principles of sovereignty and
territorial integrity of the states. In comparison with the previous resolution,
it mentions territorial integrity of Azerbaijan more explicitly. In the
operational part of the resolution the SC condemns the occupation of the
district of Agdam and other recently occupied areas of the Republic of
Azerbaijan and demands immediate, complete and unconditional withdrawal of
occupying forces from these territories.
As it is evident, here it is not also defined who is meant under the expression
In comparison with resolution
this resolution contains several provisions, interpretation of which can serve
as a ground to conclude on indirect involvement of the Republic of Armenia in
the conflict. The matter is that in this resolution the SC urges the Government
of Armenia to continue to exert its influence to achieve compliance by the
Armenians of the Nagorno-Garabakh region of the Republic of Azerbaijan with its
resolution 822 (1993) and the acceptance by this party of the proposals of the
Minsk Group of the CSCE.
Of course, the Republic of Armenia is not mentioned in this provision as a
direct party, but it is difficult to interprete the word
used here. This means that if the Armenian population of Nagorno-Garabagh was
treated as an independent party, as claimed by themselves and officials of the
Republic of Armenia, then they would not have to agree to the influence of the
Republic of Armenia as an independent party. However, inclusion of this
provision in the resolution gives reason to conclude that although indirectly
the SC has recognized by default the involvement of the Republic of Armenia in
the conflict as a party.
Then, the abovementioned provision indicates Nagorno-Garabagh as a part of the
territory of the Republic of Azerbaijan.
There is nothing new in the resolution except the abovementioned.
In its Resolution
14 October 1993,
the SC expresses its serious concern that a continuation of the conflict in and
around the Nagorno-Karabakh Region of the Republic of Azerbaijan, and of the
tensions between the Republic of Armenia and the Republic of Azerbaijan would
endanger peace and security in the region. As it is evident, for the first time,
this resolution concretely defines the object of the conflict:
conflict in and around the Nagorno-Garabagh region of the Republic of Azerbaijan.
Previous two resolutions mentioned the occupation of several districts of the
Republic of Azerbaijan and it was difficult to understand the essence of the
conflict. Moreover, in this resolution the SC also draws attention to the fact
of displacement of large numbers of civilians of the Republic of Azerbaijan from
their native lands.
Furthermore, like in the resolution 853, the SC also calls all states of the
region to maintain peace and security.
884, dated 12
also states important principles of international law
and mentions continuation of the
tensions between the Republic of Azerbaijan and the Republic of Armenia. The SC
notes with alarm the escalation in armed hostilities
and excesses in the use of force in
response to those violations, in particular the occupation of the Zangilan
district and the city of Goradiz in the Republic of Azerbaijan.
Here also, forces, occupying these
territories are not mentioned unequivocally.
Besides that the SC
expresses its grave concern at the latest displacement of a large number of
civilians and the humanitarian emergency in the Zangilan district and the city
of Goradiz, on Azerbaijan’s southern frontier.
In the operative part of the
resolution the SC condemns the occupation of the abovementiond territories,
attacks on civilians and bombardments of the territory of the Republic of
Azerbaijan. This provision specifies expressly either who attacked the peaceful
population and bombed the Azerbaijani lands.
Further on, the SC calls upon the Government of Armenia to use its influence to
achieve compliance by the Armenians of the Nagorno-Karabakh region of the
Republic of Azerbaijan with resolutions 822 (1993), 853 (1993) and 874 (1993)
and to ensure that the forces involved are not provided with the means to extend
their military campaign further. Again, like in the previous provisions of the
resolution, the SC uses abstruct and ambiguous words like
However, as it is evident, the second part of this sentence of the resolution
contains an interesting provision, i.e. the Government of Armenia is called upon
that the forces involved are not provided with the means
in order to continue military operations.
For the first time in this resolution, although not openly, support of the
by the Republic of Armenia is implied. May be, by this provision the SC wants to
express the fact of violation of the principle of prohibition of the use of
force by Armenia.
Then, the SC demands immediate cessation of armed hostilities and withdrawal of
occupying forces from the Zangilan district and the city of Goradiz.
I think the resolutions adopted by the UN SC did not fully reflect the realities
and the SC had not correctly assessed the situation.
It means that the resolutions had to be adopted upon Chapter VII of the UN
Charter, because conditions, envisaged in Article 39, were present.
I would like to substantiate my position by commenting on Article 39.
For this purpose, we should clarify presence of any of the three conditions as a
result of the actions of Armenia, as envisaged in Article 39 of the UN Charter.
Definition of peace
under Article 39 of the UN Charter
First of all, we should analyze which definition of peace is envisaged in
Article 39 of the Charter.
notion of negative peace»,
means absence of only that type of force in the international relations, which
is envisaged in Article 2.4 of the UN Charter.
When interpreting Article 39 according to this definition, we may conclude that
the SC can take measures upon Chapter VII only if armed force is used or threat
of use of such force is present.
Assessing actions of
the Republic of Armenia as an act of aggression
Now, we should review the possibility of assessing actions of the Republic of
an act of
aggression under Article 39 of the Charter.
act of aggression means continuous use of direct or indirect armed force, i.e.
this is the breach of peace in any case.
As it is known, this conflict did not begin by using direct armed forces from
the territory of Armenia to Azerbaijan. The Armenian population of
Nagorno-Garabagh had started the conflict on the territory of the Republic of
Azerbaijan. Actions of the Republic of Armenia in this conflict coincide with
Art. 3, lit. g of the Resolution of the UN General Assembly on
dated from 14 December 1974. It states:
Any of the undermentioned actions should be assessed as an act of aggression
under provisions of Article 2, notwithstanding declaration or non-declaration of
The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another state of such
gravity as to amount to the acts listed above, or its substantial involvement
In its decision, issued on Nicaragua case, International Court of Justice
referred to this provision and recognized it as a valid customary law. When
treating the issue from this aspect, it is possible to insist that the Republic
of Armenia has violated valid customary law and thus, peace envisaged in Article
39 of the UN Charter by its actions, i.e. sending paramilitary bands and other
possibilities of the UN Security Council in presence of threat to the peace
Article 39 of the UN Charter authorizes the SC to intervene not only in the case
of breach of peace, but also in the case of threat to the peace. When any threat
to the peace exists, intervention covers preventive authorities. But a question
arises: What are the margins of preventive authorities of the SC? When treating
the notion of threat in the narrow sense, only imminent breach of peace may be
regarded as a threat to peace.
Such approach allows limiting authorities of the SC and thus, meets the
principle of sovereign equality.
But it is possible to interprete the notion of threat in a broader sense and
define it as an action beyond simple violation of borders. In the practice of
the UN SC the situations of gross violation of human rights within any state
were assessed as a threat to the peace with a certain caution. Nevertheless,
beginning from 1990s of the last century, the SC has developed a different
practice. According to this practice, gross violation of human rights within any
state from the point of view of partial crossing of borders (e.g. refugee flow)
within any country are also assessed as the threat to the peace (For example,
the SC Resolution 688 dated
5 April 1991 (Iraq); the SC Resolution 841 dated 16 June 1993 (Haiti); the SC
Resolution 955 dated 8 November 1994 (Ruanda); the SC Resolution 794 dated 3
December 1992; for comparison, also the SC Resolution 1137 dated 12 November
1997 (on violation of disarmament provisions); the SC Resolution 1161 dated 9
April1 1998 (illicit arms trafficking in crisis areas).
In conclusion of all
abovementioned statements, we can say that the Armenian population of
Nagorno-Garabagh is not entitled to secede from Azerbaijan and build their
independent state according to international law, as they constitute national
minority in Azerbaijan and they had never been exposed to systematical gross
violation of human rights.
When taking into consideration the fact that more than one million people have
become refugees and IDPs as a result of this war, and gross violation of human
rights has taken place during these processes, we may say with confidence that
during the conflict all conditions, mentioned in Art. 39 of the UN Charter, were
present, which gives ground to say that the SC had to take appropriate and
necessary measures and recognize the Republic of Armenia as an aggressor under
Chapter VII of the Charter.