Master Thesis International and European Public Law
The Nagorno-Karabakh Conflict: autonomy or independence?
Sara Alborzi ANR S258044
Supervisor: S. J. Rombouts LLM Second reader: S. F. van den Driest LLM Mphil
Faculty of Law Tilburg University
19 December 2012
Table of Contents
List of Abbreviations ...... 4 Map of Ancient Armenia and Albania (50 AD) ...... 5 Map of the Republic of Azerbaijan ...... 6 Map of the Republic of Armenia and Nagorno-Karabakh ...... 7 Nagorno-Karabakh Country Profile ...... 8
1. Introduction ...... 10
2. History of the Nagorno-Karabakh conflict ...... 12 2.1 Armenia in ancient times ...... 12 2.2 The development of the Azeri-Armenian hostilities ...... 13 2.3 Nagorno-Karabakh’s separation from Armenia ...... 15 2.4 Karabakh Armenian’s attempts to separate Nagorno-Karabakh from Azerbaijan ...... 16 2.5 The Nagorno-Karabakh war ...... 18
3. The principle of self-determination...... 20 3.1 Internal and external self-determination ...... 20 3.2 Remedial right to secession ...... 22 3.3 People vs. minority...... 27 3.4 Holders of the right to self-determination ...... 30 3.5 The definition of collective individuality ...... 32 3.6 The impact of uti possidetis on the status of Karabakh Armenians as ethnic minorities ...... 34 3.7 Concsluion ...... 36
4. Internal self-determination ...... 38 4.1 The right to autonomy ...... 38 4.2 Autonomy for the ethnic minorities in Finland and Italy ...... 39 4.2.1 The Ǻland Islands ...... 39 4.2.2 South Tyrol ...... 42 4.3 Internal self-determination and ethnic minorities ...... 43 4.4 Karabakh Armenian’s entitlement to internal self-determination ...... 46 4.5 The difficulties of establishing an autonomous Nagorno-Karabakh ...... 49 4.6 Conclusion ...... 54
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5. External self-determination ...... 56 5.1 The ICJ Advisory Opinion on Kosovo’s unilateral declaration of independence...... 56 5.2 Nagorno-Karabakh’s independence in connection to the ban on the use of force ...... 60 5.3 Nagorno-Karabakh’s independence in connection to uti possidetis ...... 67 5.4 Conclusion ...... 69
6. Conclusion ...... 71
Bibliography ...... 75 Annex 1 ...... 84 Annex 2 ...... 86
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List of Abbreviations
ASIL American Society of International Law CERD Committee on the Elimination of Racial Discrimination CoE Council of Europe CSCE Conference on Security and Co-operation in Europe Doc. Document DR Decisions and Reports ECHR European Convention on Human Rights ECRI European Commission against Racism and Intolerance ETS European Treaty Series FCNM Framework Convention for the Protection of National Minorities GA General Assembly GAOR General Assembly Official Records HR/CT Human Rights Committee ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ILC International Law Commission ILM International Legal Materials LN League of Nations LNOJ League of Nations Official Journal MFA Ministry of Foreign Affairs Mtg. Meeting NKAO Nagorno-Karabakh Autonomous Oblast NKR Nagorno-Karabakh Republic No(s). Number(s) OSCE Organization on Security and Co-operation in Europe PACE Parliamentary Assembly of the Council of Europe Para(s). Paragraph(s) Plen. Plenary Rep. Republic Res. Resolution SC Security Council SCOR Security Council Official Records Sess. Session SSR Soviet Socialist Republic Supp. Supplement UN United Nations UNESCO United Nations Educational Scientific and Cultural Organization UNTS United Nations Treaty Series USSR Union of Soviet Socialist Republics Vol. Volume
4
Map of Ancient Armenia and Albania (50 AD)
5
Map of the Republic of Azerbaijan
6
Map of the Republic of Armenia and Nagorno-Karabakh
7
Nagorno-Karabakh Country Profile1
Official name: The Nagorno-Karabakh2 Republic (or the Republic of Artsakh3)
Capital: Stepanakert
State Language: Armenian
Religion: Around 95 per cent of the population are followers of the Armenian Apostolic Church.
Form of Government: Presidential Republic
Currency: Armenian Dram (AMD), put on circulation in 1993
Population: 141.4 thousand people/ as of January 1, 2010 /
Ethnic Composition: Armenians (95%), Russians, Ukrainians, Greeks, Georgians, Kurds, Azerbaijanis.
Territory: The territory of the Artsakh Republic is more than 12 thousand km2 out of which 1041 km2 are under control of Azerbaijan. /The territory of the Shahumian region together with the Getashen sub-region is 2527 km2, 698 km2 of which are under control of Azerbaijan/.
Natural resources: marble, granite, andesite, tuff, basalt, limestone, diabase, concrete clays, pumice, clay, different kind of metals, especially zinc, copper stone, lead, lithographic stone, coal, pyrites, iron, and other metals, water resources.
National Flag:
1 Official website of the President of the Artsakh Republic:
The flag of the Republic of Nagorno-Karabakh (Artsakh) was adopted on June 2nd 1991 by the Supreme Council of the Republic. It is derived from the flag of Armenia, which consists of three equal horizontal stripes of red, blue and orange:
The red colour symbolizes the on-going struggle of the Armenian people for existence, Christianity, independence and freedom.
The blue colour symbolizes the will of the Armenian people to live in peace.
The orange colour symbolizes creative power and diligence of the Armenian people.
The flag of the Republic of Nagorno-Karabakh (Artsakh) further has a westwards pointing step like arrow (white division), which signifies Nagorno-Karabakh's current separation from Armenia, and its hopes for union with the Motherland.4
4 Website of the Armenian Student Association:
1. Introduction
Ever since the existence of mankind, humans have always lived in separate societies that have competed with one another in order to outshine the other. Rivalry between peoples has always easily escalated into war. Wars in turn have led to conquest and the subjugation of peoples. Not only warfare, but also the victor’s conduct towards the subjugated people has been ruthless at times; from massacres to expulsions, and exploitation to forced assimilation. While some victors paid deference to the language, culture and religious conviction of the defeated people, others did not. As international human rights law was non-existent throughout most of history, the treatment of the conquered people became entirely dependent on the will of the victor to show mercy. Many great cultures and languages have disappeared from the heritage of mankind as a result. This tragedy can today be witnessed, for instance, in Northern Africa and parts of the Middle East where the forefathers of the people living there were in many ways forced to adopt the Arabic language and religion. But even if the victor did display empathy towards the culture of the defeated, not all conquered peoples were ready to accept their subjugation and many have revolted against their conqueror so as to master their ancestral land. Though the concept of self-determination is quite new, history reveals that peoples have always fought to achieve that what in today’s world is offered by the right to self-determination.
Self-determination is not only designed to let people gain control over a piece of land in a political sense, but it is primarily aimed at preserving the distinct culture, language and religion of the various peoples inhabiting this globe.5 While there are currently many groups who are struggling for their ‘right’ to self-determination, this thesis will only focus on one such group that has not received the attention it deserves, namely the Armenians in Azerbaijan’s Nagorno-Karabakh. Ever since the Soviet authorities forcefully incorporated Nagorno-Karabakh into Azerbaijan, Armenia’s long-term enemy, the Karabakh Armenians have never stopped attempting to withdraw their territory from Azerbaijan in order to once again rule over their motherland and preserve their Armenian identity for future generations. For this reason, they claim to have a right to external self-determination. But since the internal borders of the Soviet Union were, upon its disintegration, recognized by the international community as new external borders, the Karabakh Armenians are currently identified as ethnic minorities. According to international law, however, ethnic minorities, as opposed to peoples, do not possess a right to self-determination. In principle, this has ruled out Karabakh Armenians’ demands of separation from Azerbaijan. Yet, despite not having a right to self-determination under
5 D. Raič, Statehood and the Law of Self-Determination, The Hague: Kluwer Law International 2002, p. 248. 10 international law, there are ethnic minorities that do enjoy internal self-determination and recently half of the world community has recognized the right to external self-determination of the Albanian ethnic minority of Serbia. It seems therefore that ethnic minorities may somehow acquire a right to self-determination, even though they are not entitled to it under international law.
The aim of this thesis is to find out what the attainment of self-determination by other ethnic minorities is revealing about the relation between minority protection and self-determination in order to understand on what basis the Karabakh Armenians could, as an ethnic minority, obtain a right to internal or external self-determination so as to assess which of these two could better solve the Nagorno-Karabakh conflict. Chapter 2 will give an outline of the historical events that have led to the Nagorno-Karabakh war. This will explain why both the Karabakh Armenians and Azeris are not willing to let go off their territorial claims to the region. Chapter 3 gives a theoretical framework of the right to self-determination and outlines the differences between minorities and peoples; how they can be identified and distinguished from one another in order to determine which group is eligible for obtaining a right to self-determination. This is needed in order to clarify why the Karabakh Armenians are not a people, but an ethnic minority, and thus not entitled to the right of self- determination. Chapter 4 focuses on the internal form of self-determination in relation to minority protection. This will mainly be done by exemplifying the cases of the Ǻland Islands and South Tyrol so as to understand on what basis these ethnic minorities managed to obtain internal self- determination. It then will return to the situation in Nagorno-Karabakh in order to conclude whether internal self-determination might be a feasible option for Nagorno-Karabakh. Chapter 5 focuses on the external aspect of self-determination as a possible solution for the Nagorno-Karabakh conflict. The ICJ Advisory Opinion regarding the independence of the Albanian ethnic minority in Serbia is highlighted for this purpose. A conclusion will then be given in Chapter 6.
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2. History of the Nagorno-Karabakh conflict
Although history is mostly ignored by observers, it does constitute a significant part in the Nagorno- Karabakh conflict, as both Armenians and Azerbaijanis assert to be the first inhabitants of the area and, thus, entitled to the land. In this regard, the Armenian claims are supported by a wide range of historical documents. By exploring the historical events, it will become clear why Armenians and Azerbaijanis attach great value to Nagorno-Karabakh, how the hostilities between both parties started to take form and aggravate the relation between Armenians and Azerbaijanis to the extent that Karabakh Armenians refuse to once again live under Azerbaijani rule.
2.1 Armenia in ancient times
The presence of Armenians in the Caucasus is mentioned by ancient Greek and Roman historians.6 Their writings indicate that the Armenian provinces of Artsakh (Nagorno-Karabakh) and Utik were part of the Kingdom of Armenia and the people there all spoke Armenian.7 In 387 AD, the Armenian Kingdom was for the first time partitioned between the Byzantine and Persian (Parthian) Empire. Artsakh and Utik remained within what was left of (Persian conquered) Armenia and both Armenian provinces were later merged with the (Persian conquered) Kingdom of Albania (not to be confused with present day Albania) into the new Persian province of Arran.8 Unlike their countrymen, who were subjugated by the Byzantines, the Karabakh Armenians enjoyed a certain degree of autonomy within Persia. As history would tell, Nagorno-Karabakh would become the only part of Armenia that would outlive the many invasions that had yet to come, and its autonomy would stay intact for over a thousand years after the fall of the Persian Empire in the seventh century. This explains the strong affinity Armenians have with Nagorno-Karabakh; while the rest of Armenia fell under total foreign domination, Nagorno-Karabakh was the only part where Armenians still had some control over their ancestral land, which has contributed to the preservation of the Armenian identity.9
With the Muslim Arab conquest of Persia in the seventh century, the Eastern part of the Persian province of Arran was Islamized and the majority of its people mixed with Arabs (and later the Turks). The Western part of Arran, where Nagorno-Karabakh was situated, remained Christian. In the
6 These include: Strabo (1st Century BC), Pliny the Elder (1st Century AD), Plutarch (1st and 2nd Century AD), Claudius Ptolemy (2nd Century AD) and Dio Cassius (2nd and 3rd Century AD). 7 C.J. Walker, Armenia and Karabakh: The Struggle for Unity, London: Minority Rights Publications 1991, pp. 73- 74. 8 Ibid., p. 74. 9 M.P. Croissant, The Armenia-Azerbaijan Conflict: Causes and Implications, Westport: Praeger 1998, pp. 10-11. 12 eleventh century, Turkish tribes migrated in large numbers into Asia Minor and the Caucasus and gradually, the Turkish increased in numbers and their language became widely spoken throughout the area. Even the indigenous people of Transcaucasia, who no longer constituted a majority, started to adopt the Turkish language and, centuries later, identified themselves as (Azeri) Turks.10 Although their numbers started to increase in the Caucasus region from the eleventh century onwards, historical sources, including official Turkish, Georgian and Russian documents of that time, confirm that the (Azeri) Turks did not inhabit the region of Nagorno-Karabakh until after 1750.11
2.2 The development of the Azeri-Armenian hostilities
In the beginning of the 20th century, a Turkish nationalist ideology, known as pan-Turkism, started to increase in popularity among (Azeri) Turks. This ideology, which is still supported by many of the modern-day Turkish elite,12 advocates the union of all Turkish peoples, from the Balkans to western China, in one single Turkish State, which will be named ‘Turan’. Serge Zenkovsky explains this ideology as follows:
“First, the Ottoman Turks had to consolidate their grip over their empire and Turkicize its minorities. In the second, ‘pan-Turkic’, phase, the closest relatives of the Ottoman Turks- the Azerbaijanis of Russia and Persia (the south-eastern group of Turkish peoples)- were to be taken into the Turkish State. The third step would be the uniting of all the Turanian [i.e., Turkish] peoples of Asia around the Turkish core.”13
Pan-Turkism contributed to the anti-Armenian sentiments among Azeri and Ottoman Turks, inter alia, because of the unfortunate geographical position of Armenia; it is Armenian land, including Nagorno-Karabakh, which is dividing (Ottoman) Turkey from Azerbaijan.14 Eventually, the Ittihad party in Ottoman Turkey and the Musavat (a nationalistic and pan-Islamist) party in Azerbaijan were
10 Ibid., pp. 2 & 7. 11 Walker 1991, p. 81. Today, however, Azerbaijani scholars claim that Nagorno-Karabakh (Artsakh) belonged to Caucasian Albania and thus, never was part of the Kingdom of Armenia. Azeris further assert that the Albanians were the original inhabitants of Nagorno-Karabakh and claim to be the descendants of these Caucasian Albanians. According to Azeris, Armenians migrated into Nagorno-Karabakh in the eight century, after which they started to coerce the Albanians into assimilation. Hence, the Armenians of today’s Nagorno-Karabakh are not actually Armenians, but are ‘Armenianized’ Albanians, and thus, Azerbaijanis. These claims are portrayed as propaganda and a distortion of history for political gain, e.g., Patrick Donabedian stresses that the aim of the Azeris is “to show that the Armenians of Karabakh is only a myth and that the ‘Albanians’ who live there have no reason to challenge their membership in the Republic of Azerbaijan”; Croissant 1998, p. 12. 12 Walker 1991, p. 25. 13 Ibid., p. 26; Croissant 1998, p. 8. 14 Walker 1991, p. 84. 13 set up to fulfil the pan-Turkish ideology. Together they formed the ‘Army of Islam’, and in 1918, the Turks and Azeris invaded parts of Armenia.15 The Armenians, however, managed to obstruct the Turkish conquest of Nagorno-Karabakh and were fortunate that Turkey had to retreat after losing the First World War,16 but before they could reattach Nagorno-Karabakh to Armenia, the British arrived and, because of economic reasons, sided with the Azeris by offering them Nagorno-Karabakh.17 This was, however, frustrated by the Armenians of Nagorno-Karabakh, who refused to submit to Azeri control.
As a reaction to the Armenian refusal, Britain eventually consented with armed attacks which the Azeris would execute in order to subdue the Karabakh Armenians.18 Nonetheless, the National Armenian Council of Nagorno-Karabakh showed no desire to become part of Azerbaijan:
“Azerbaijan is and has always been an ally of the Turks, and has taken part in all the atrocities committed by the Turks against the Armenians, and in particular the Armenians of Karabakh.”19
At the time, Armenia was unable to provide Nagorno-Karabakh the support it needed to fend off the Azeri attacks and continued threats. Nagorno-Karabakh, therefore, saw no choice but to sign a document securing the provisional authority of Azerbaijan over Nagorno-Karabakh.20 The British soon left the Caucasus in 1919, and with their departure, the Azeri authority over Nagorno-Karabakh was once again put into question.21
15 In this regard, it must be noted that, a few years prior to the invasion of Armenia, the first phase of the pan- Turkish ideology was somewhat finalized in Turkey by the deportation of the Greek, Assyrian and Armenian (i.e., all Christian) minorities of Turkey, while the non-Turkish, but Muslim minorities of Turkey (i.e. the Kurds, who actively supported the Turks in their plan to clear the country from the (Armenian) Christians), were allowed to stay. But once the Greeks, Assyrians and Armenians were taken care of, the Kurds were forced to assimilate, but instead resisted and as such became the next victim of oppression by the Turkish State. Between 1895 and 1920, one third of the total Armenian population was killed by the Turks, Azeris and Kurds as a result of this pan-Turkish and pan-Islamist dream; Walker 1991, pp. 23-34; G. Chaliand (ed), A People without a Country: The Kurds and Kurdistan, Northampton: Interlink Publishing Group 1993, see Chapter ‘Kurdistan in Turkey’. 16 Ibid., pp. 87-89. 17 Croissant 1998, pp. 15-16. 18 Ibid., p. 16. 19 Ibid., pp. 95-96.Twenty per cent of the Armenian population in Nagorno-Karabakh was killed during the Turkish/Azeri assault of 1918-1920. 20 Walker 1991, p. 97. 21 Croissant 1998, pp. 16-17. 14
2.3 Nagorno-Karabakh’s separation from Armenia
On 1 December 1919, Bolshevik troops conquered what was left of Armenia22 and it became part of the Soviet Union. Azerbaijan was already sovietised on 27 April 1919.23 The fate of Nagorno- Karabakh, however, was yet to be decided. In June 1921, the Caucasian Bureau of the Communist Party declared that Nagorno-Karabakh was part of Armenia. This infuriated the Bolshevik leader of Azerbaijan, who warned for anti-Soviet activities in Azerbaijan if Nagorno-Karabakh was lost to Armenia. Yet, on the 4th of July, the Caucasian Bureau once again confirmed its decision by a majority vote to allocate Nagorno-Karabakh to Armenia. Nevertheless, the Bureau was forced on that same day by Stalin to repudiate its decision and, without deliberation or a formal vote, transfer Nagorno- Karabakh to Azerbaijan, and so it did the very next day. Hence, the Nagorno-Karabakh Autonomous Oblast (NKAO) was created on 7 July 1923.24
The frontiers of this Autonomous region were determined on 15 August 1923; on the West, Lachin, Kelbajar and Getabek (territories of Nagorno-Karabakh) were cut off from NKAO, and its Armenian inhabitants were forced to leave the area. In this way, Azerbaijan ensured that Armenia would not border with its newly founded autonomous region of Nagorno-Karabakh. On the Northern part of Nagorno-Karabakh, the districts of Shamkhor, Khanlar, Dashkesan and Shahumian (territories of Nagorno-Karabakh) were left outside of the borders of the NKAO. Thus, what was labelled as the NKAO did not cover all of Nagorno-Karabakh’s territory.25
Despite Nagorno-Karabakh’s attachment to Azerbaijan, re-unification with Armenia was seen as the only way to preserve the Armenian identity, since Karabakh Armenians feared to become a second Nakhichevan. When this territory became an autonomous region of Azerbaijan in 1924, 40% of the population was Armenian. In 1979, the Armenian population dropped to 1.4% because of anti- Armenian policy.26 Today, the Armenian population in Nakhichevan is even non-existent. In Nagorno- Karabakh, similar developments occurred. While constituting 94.4% in 1921, the Armenians saw their numbers drop to 75.9% in 1979 as a result of forced migration of Armenians and the resettlement of
22 Turkey started a second assault against Armenia in September 1919 in which it managed to annex half of Armenia’s territory. 23 Croissant 1998, pp. 17-18. 24 The forceful provisional attachment of Nagorno-Karabakh to Azerbaijan by the British in August 1919 was henceforth made permanent by the decision of the Caucasian Bureau of the Communist Party; Walker 1991, pp. 107-108. 25 Ibid., p. 109. 26 Ibid., p. 113. 15
Azeris in Nagorno-Karabakh.27 Azerbaijan was furthermore very prudent when it came to the autonomous status of Nagorno-Karabakh as it was “extending a minimal degree of rights while maximizing Karabakh’s vulnerability and insecurity.”28
2.4 Karabakh Armenian’s attempts to separate Nagorno-Karabakh from Azerbaijan
When the disintegration of the Soviet Union was nearing, the regional Soviet of Nagorno-Karabakh adopted a resolution on 20 February 1988 in which it urged the SSR of Armenia and Azerbaijan to do the necessary for the re-attachment of Nagorno-Karabakh to Armenia.29 As a reaction, Armenians in Sumgait (Azerbaijan) were targeted by Azeri civilians and were assaulted and massacred in the streets and their homes from 27 to 29 February, while the authorities did little to prevent the atrocities.30 After the incidents in Sumgait, Armenians in Azerbaijan fled in great numbers to Armenia, while Armenia saw an exodus of its Azerbaijani citizens, who feared vengeance for the Sumgait incident.31 Meanwhile, Soviet authorities emphasized that Nagorno-Karabakh could not become part of Armenian territory without the approval of Azerbaijan, as stipulated in Article 78 of the Soviet Constitution. As was expected, Azerbaijan repeatedly rejected the Armenian’s request for reunification.32
Tensions between the two communities intensified when Armenians in Nagorno-Karabakh started to accuse the Azeri authorities of deliberately trying to once again alter the demographics in Nagorno- Karabakh by moving large numbers of Azeri refugees from Armenia into Nagorno-Karabakh. In an attempt to avert the dispersion of violence, Azeri authority over Nagorno-Karabakh was temporally
27 Armenians contend that this was the result of anti-Armenian policy aimed at obliterating the Armenian identity of Nagorno-Karabakh. To this end, no books were published in the Armenian language and e.g., the existence of Armenian historical monuments in Nagorno-Karabakh (and Nakhichevan) was denied by the Azeri authorities. These monuments were either destroyed or “left to rot away” or were presented by the Azeri authorities as Caucasian Albanian monuments (and thus Azeri) in order to get rid of Nagorno-Karabakh’s Armenian and Christian character. Azerbaijan, however, denies that their policy was detrimental to the Armenian identity and claims that Armenians voluntarily left Nagorno-Karabakh; ibid., pp. 113 & 115-116. 28 R. Giragosian, ‘The Organization for Security and Cooperation in Europe (OSCE) and the Nagorno-Karabakh Conflict: A Compilation for Analyses’ (July 2000), p. 10, available at:
After “Operation Ring” ended on 15 May, clashes between Azeri troops and Armenian militias in Nagorno-Karabakh continued. In some parts of Nagorno-Karabakh, Azeri inhabitants were deported from their homes by Armenian militias.39 On 2 September 1991, the Declaration on Proclamation of the Nagorno-Karabakh Republic was adopted by Nagorno-Karabakh. As a reaction, the Supreme Soviet of Azerbaijan decided to revoke the autonomous status of Nagorno-Karabakh. Nonetheless, a referendum was held in Nagorno-Karabakh and Shahumian40 on 10 December 1991 in which 99.89%,
33 Ibid., pp. 33-34. 34 Ibid., pp. 34-35. 35 Ibid., p. 39. 36 Ibid., p. 41. 37 Armenians were intimidated into signing a document declaring they were voluntarily leaving for Armenia; ibid., pp. 41-42. 38 Ibid. 39 Ibid., p. 45. 40 Shahumian used to be part of Nagorno-Karabakh’s original territory. While the majority of Armenian inhabitants were expelled from other parts of the original Nagorno-Karabakh region, the Shahumian district remained largely populated by Armenians. But it was this district where Armenians were once again harassed and tens of thousands of them were ejected from their houses during “Operation Ring”; ibid., pp. 41-42. 17 of those who participated, voted in favour for independence.41 The Soviet Union eventually ceased to exist on 26 December 1991. Three days prior to its dissolution, the Soviet Interior Ministry troops were pulled out from Nagorno-Karabakh. This deteriorated the situation, since Azeri troops started to intensify their attacks on Nagorno-Karabakh. Despite the heated situation in the region, Nagorno- Karabakh declared its independence on 6 January 1992.42
2.5 The Nagorno-Karabakh war
Azerbaijan attempted to restore its control over Nagorno-Karabakh through a major military operation against Stepanakert (Nagorno-Karabakh’s capital) on 31 January 1992. This marked the beginning of the Nagorno-Karabakh war, in which Azerbaijan witnessed many major losses. On 25 February, Azerbaijan lost the city of Khojaly to the Armenians. On 8 May, the city of Shusha fell, and on 18 May 1992 the city of Lachin followed. With Lachin now being in Armenian hands, Nagorno- Karabakh was no longer separated from Armenia by Azeri land, and a de facto unification was made possible.43
The occupation of Azeri territory by Armenians was highly condemned by the international community, more so, because it is assumed that Armenia sent troops, from 1993 onwards, to aid the Karabakh Armenians against Azerbaijan’s military operation. Four UN Security Council resolutions were adopted on this issue. On 30 April 1993, the UNSC issued its first Resolution (822) in which it instructed the occupying forces to withdraw from Azeri land and reminded the warring parties of “the inviolability of international borders and the inadmissibility of the use of force for the acquisition of territory.”44 In the second UNSC Resolution (853), passed on 29 July, States were requested to refrain from any kind of military assistance to one of the warring parties and it called for the return of Azeri refugees,45 who fled from Nagorno-Karabakh and in some instances were
41 Azeris in Nagorno-Karabakh did have the right to participate in the referendum, but decided to boycott the referendum as a sign to show their loyalty to Azerbaijan. After the referendum, the Nagorno-Karabakh Republic ensured that the Azeri minority was proportionally represented in the Parliament, but this too was boycotted by the Azeri’s of Nagorno-Karabakh; C. Cox & J. Eibner, Ethnic Cleansing in Progress: War in Nagorno Karabakh, London: Institute for Religious Minorities in Islamic World 1993, see Chapter on ‘The Post-Soviet Conflict (Referendum and Elections in Nagorno-Karabakh)’, online version available at:
A ceasefire agreement was eventually signed by the Republic of Armenia, the Republic of Azerbaijan and Nagorno-Karabakh on the 5th of May 1994, announcing the end of the war, but not the end of the conflict itself, since the Karabakh Armenians continued to exert full control over approximately twenty per cent of Azeri de jure territory, a scenario which is unacceptable for Azerbaijan.49
46 The Situation relating to Nagorny Karabakh, SC Res. 853, UN SCOR, 48th Sess., 3259th mtg., UN Doc. S/INF/49 (1993), at 71. 47 The Situation relating to Nagorny Karabakh, SC Res. 874, UN SCOR, 48th Sess., 3292nd mtg., UN Doc. S/INF/49 (1993), at 72. 48 The Situation relating to Nagorny Karabakh, SC Res. 884, UN SCOR, 48th Sess., 3313th mtg., UN Doc. S/INF/49 (1993), at 73. 49 Croissant 1998, p. 95. Azerbaijan still controls about fifteen per cent of NKR’s proclaimed territory (i.e. the whole of Shahumian and parts of Martakert and Martuni), while NKR claims to occupy nine per cent of Azeri territory outside the proclaimed borders of the NKR. Moreover, Artzvashen, an exclave of the Republic of Armenia's Gegharkunik province (near Lake Sevan) is under control of Azerbaijan since the beginning of the war and its Armenian inhabitants were expelled after it was conquered by Azerbaijan [see Map of the Republic of Armenia and Nagorno-Karabakh]. 19
3. The principle of self-determination
In legal terms, the Nagorno-Karabakh conflict is one between the principle of territorial integrity of sovereign States on the one hand and self-determination of peoples on the other, with the former principle being endorsed by Azerbaijan and the latter by the Armenians. Yet, to exercise the right to self-determination, a group has to be identified as a people because only peoples are mentioned in international documents as the subjects of the right to self-determination. In this regard, it has already been mentioned that Karabakh Armenians are not bearers of the right to self-determination since they are an ethnic minority. This Chapter will clarify the status of Karabakh Armenians in international law by elucidating the difference between peoples and minorities so as to understand whether minorities may become holders of the right to self-determination. But first, Chapter 2 will commence with an introductory on the internal and external aspect of the principle of self- determination.
3.1 Internal and external self-determination
Self-determination of peoples was for the first time universally accepted as a principle in the Articles 1 (2) and 55 of the United Nations Charter,50 which both call on Member States to respect the principle of equal rights and self-determination of peoples.51 The purpose of self-determination is to protect the distinct identity of a people by creating an atmosphere in which a people is allowed to preserve, strengthen and develop its collective individuality.52
Self-determination can be implemented either internally or externally. Internal and external self- determination therefore does not refer to different rights, but to different modes of implementation of the right to self-determination.53 When implemented internally, self-determination is confined to the political participation of a people within the boundaries of the State of residence. It thus implies “equal access to government.”54 Internal self-determination is closely related to the principles of equal rights and non-discrimination, without which equal access to government would not be possible. There are several ways in which internal self-determination can be realized, such as designating a number of seats in the Parliament for representatives of a particular people or regional
50 Charter of the United Nations, (San Francisco, 26 June 1945), 3 Bevans 1153, 59 Stat. 1031, T.S. No. 993, entered into force 24 October 1945. 51 A. Pavković & P. Radan, Creating New States: Theory and Practice of Secession, Aldershot: Ashgate 2007, p.20. 52 Raič 2002, p. 261. 53 Ibid., p. 227. 54 Ibid., p. 237. 20 autonomy.55 The borders of an existing State are thus not altered with the implementation of internal self-determination. This is what separates internal self-determination from external self- determination. The latter always leads to border alterations since dissolution of a State, union or merger between two (or more) States and secession are ways to exercise external self- determination.56
Secession has been described as a process of State creation in which a new State will come into existence upon a territory that previously belonged to a part of an already existing State (also referred to as ‘parent State’ or ‘host State’).57 There are five different contexts in which the process of state creation can occur. On basis of these contexts, Radan has discerned five types of secession.58 For the purpose of this thesis, it will be sufficient to focus on one of these types of secession, i.e., unilateral secession, which takes place when a part of a host State’s territory separates without the prior assent of the host State.59
The fact that external self-determination will result into the ramification of existing States, is what makes it at odds with the principle of territorial integrity, which is laid down in Article 2(4) of the UN Charter. By virtue of this Article, Member States are prohibited from using force or threatening to use force against another Member State,60 save for the exceptions set out in the UN Charter.61
55 Ibid., p. 239. 56 Ibid., p. 289. 57 A. Pavković & P. Radan (ed.), On the Way to Statehood: Secession and Globalization, Aldershot: Ashgate 2008, pp. 18 & 32. 58 These are: (1) colonial secession; referring to instances in which a colonial entity develops into a new State, (2) unilateral secession; referring to instances in which the host State reluctantly loses some of its territory to the newly created State and, notwithstanding the modifications made to its borders, continues its existence as a State, e.g. the secession of Bangladesh from Pakistan, 3) devolutionary secession; refers to instances in which the host State has eventually acquiesced to the formation of the newly created State and, notwithstanding the alterations made to its borders, continues its existence as a State, e.g., Eritrea’s emergence from Ethiopia, (4) consensual secession; refers to instances in which the host State- following demands from within- consents to its own dissolution and the creation of new States upon its territory, e.g., the formation of the Czech Republic and the Slovak Republic from the State of Czechoslovakia, (5) dissolving secession; refers to instances in which the host State -upon demands from its constituent parts- is dissolved, though without its consent, and in which new States are created upon its territory, e.g., the new States that were created on the territory of the former State of Yugoslavia; ibid., pp. 30-31. 59 Raič 2002, p. 308. 60 The prohibition to use force against the territorial integrity of other States has been recognized as jus cogens, i.e. a peremptory norm of international law from which no Member State may deviate from and which may only be altered by a new norm of jus cogens; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986 (June 27), p. 100, para. 190; Vienna Convention on the Law of Treaties, (Vienna, 23 May 1969), 1155 UNTS 331, entered into force 27 January 1980, Article 53. 21
However, the ban on the use of force against the territorial integrity of States is said to be a binding obligation on States only. Peoples are, therefore, not compelled to respect the territorial integrity of their own State.62 Yet, their right to external self-determination has always been constrained by provisions of other international documents that emphasize on the primacy of the territorial integrity of States.63
Nonetheless, colonial peoples became the first to experience external self-determination with the adoption of the UNGA Declarations 1415 and 1541 in 1960. Both declarations refer to self- determination as a right of peoples by which they may determine their own political status and freely pursue their economic, social and cultural development.64 In addition to colonial peoples, the right to external self-determination is also conceded to the whole population of a sovereign State and peoples under foreign military occupation.65
3.2 Remedial right to secession
Although it is somewhat controversial in international law, some scholars tend to believe that the right to external self-determination is further conferred on the unrepresented part of peoples within an independent State. The conferral of this right can be inferred from paragraph 7 of Principle V, or the so-called ‘safeguard clause’, of the Friendly Relations Declaration,66 which stipulates that:
“Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity 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
61 i.e., the use of force on recommendation of the UNSC (Article 39 of the UN Charter) and individual or collective self-defence (Article 51 of the UN Charter). 62 V. Gudeleviciute, ‘Does the Principle of Self-Determination Prevail over the Principle of Territorial Integrity?’, International Journal of Baltic Law (2005), Vol. 2, No. 2, p. 50. 63 Pavković & Radan (ed.) 2008, p. 61. 64 N. Ghanea & A. Xanthaki (ed.), Minorities, Peoples and Self-Determination: Essays in Honour of Patrick Thornberry, Leiden: Martinus Nijhoff Publishers 2005, p. 16. 65 This conferral of right can be deduced from the prohibition to use force against the territorial integrity of another State, which is enshrined in Article 2 (4) of the UN Charter, though it has been the Friendly Relations Declaration that has connected the right of self-determination to peoples under foreign military occupation; Gudeleviciute 2005, p. 58. 66 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), UN GAOR, 25th Sess., Supp. No. 28, UN Doc. A/8028 (1970), at 121. 22 representing the whole people belonging to the territory without distinction as to race, creed or colour.”67
This passage is said to guarantee the territorial integrity of sovereign and independent States, provided that the State is ensuring all the peoples within its territory equal access to government.68 The State is thus dissuaded to inhibit specific groups from exercising their right to internal self- determination.69 Paragraph 7 therefore lays a condition on a State’s territorial integrity, which is why some scholars have come to the conclusion that the Friendly Relations Declaration is implicitly recognizing unilateral secession as a penalty for States that do not act in conformity with the right to internal self-determination of peoples within their territories. This line of reasoning is also referred to as the ‘remedial secession theory’.70 Although a remedial right to secession enables a part of a State’s population to seek unilateral secession, it is, however, a remedy of last resort, meaning that it is restricted in the sense that peoples are not entitled to it as long as their right to internal self- determination is being respected by the host State. A right to internal self-determination can thus only under exceptional circumstances transform into a right to external self-determination.71
In order for a people to attain a remedial right to unilateral secession the following three requirements must be fulfilled. First, as the holder of the right to external self-determination is considered to be a people, the right must be exercised by a people that is constituting a majority in a specific part of the territory of the host State, while forming a numerical minority compared to the rest of the population.72
Second, the host State must have infringed the right of internal self-determination of the people concerned by conducting itself in a manner that has caused great harm to their collective identity.
67 The ‘safeguard clause’ is reaffirmed, albeit in a different wording, in Section 1 (2) of the 1993 Vienna Declaration and Programme of Action, and paragraph 1 of the 1995 UNGA Declaration on the Occasion of the Fiftieth Anniversary of the United Nations: “[self-determination] shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind”; Vienna Declaration and Programme of Action, UN GAOR, World Conference on Human Rights, UN Doc. A/CONF.157/24 (1993), reprinted in 32 ILM 1661 (1993); Declaration on the Occasion of the 50th Anniversary of the United Nations, GA Res. 50/6, UN GAOR, 50th Sess., 40th plen. mtg., UN Doc. A/50/49(Vol. I) (1995), at 13. 68 Pavković & Radan 2007, p. 236. 69 Ibid., p. 235. 70 Ibid., p. 23. 71 Raič 2002, pp. 321-322. 72 Ibid., pp. 366-367. 23
The internal self-determination of a people could be violated by either one of the three following acts of the host State:
(a) A formal revocation of a people’s right to internal self-determination, for example, by abolishing the autonomous status of a people. The State’s decision to repeal the right to internal self- determination must not be temporarily of character, i.e., there must be no intention on part of the host State to restore that right in the short term.73
(b) The maintenance of indirect discriminatory State policies that seriously obstruct the people concerned from exercising their formal right to internal self-determination. It is important in this regard that the discriminatory policies of the State must be of such a degree that it is threatening the preservation of the collective identity of the people in question. This could be the case if the host State deliberately assigns a small number of seats in the State organs to a particular people in order to diminish their influence on State policy, or if the people concerned is constantly and deliberately voted down by the majority in those decision-making procedures that directly affect their interest.74
(c) A serious and widespread violation of the fundamental human rights, particularly the right to life, of the members of a people. Therefore, a host State that is trying to avert an illegal secessionist attempt always has to abide by rules of international law, human rights and humanitarian law when doing so. If a State has failed to conduct its military action against one of its peoples in compliance with fundamental human rights, then the people that has suffered due to the State’s misconduct will likely acquire a right to external self-determination even when its claim to secession was illegal prior to the State’s military action.75
The third and final condition to obtain a right to unilateral secession is “the exhaustion of all effective and realistic remedies” to implement the right to internal self-determination of the relevant people. Unilateral secession is, as was already mentioned, a remedy of last resort, and the people in question, therefore, must first attempt to conciliate the conflict through (direct or indirect) negotiations with the host State and accept a resolution that will lead to the exercise of self-
73 Ibid., p. 368. 74 Ibid., pp. 368-369. 75 There will, however, be no conferral of a right of external self-determination to a people that has intentionally put the State’s army in a situation in which it could not prevent the many fatalities among the civilian population. A self-provoked circumstance would, for example, be the case if the people concerned, or its legitimate representatives, have installed armed equipment or dispatched their combatants in areas inhabited by the civilian population. The State’s armed forces may, however, not response disproportionately to this by committing crimes, such as, rape, looting, ethnic cleansing or genocide; ibid., pp. 369-370. 24 determination within the boundaries of the host State.76 An exception to this condition occurs when the State’s brutality has led to such a distrust and revulsion between the majority and minority- people that peaceful coexistence within one and the same State has become unrealizable. Further negotiations and arrangements regarding the possible implementation of internal self-determination are therefore considered to be futile and thus unnecessary. In sum, the widespread and serious violation of the fundamental human rights of a people will, as was mentioned above, breach the right of internal self-determination of a people (i.e. the second condition for acquiring a right to unilateral secession), and may simultaneously lead to the exhaustion of all effective and realistic remedies to settle the conflict internally (i.e. the third condition for acquiring a right to unilateral secession).77
Once these conditions are fulfilled, a right of unilateral secession will be accorded to the relevant people. It must be noted, though, that a remedial right of secession may expire without being actually exercised by the people entitled to it. This could be the case when the suppression has ended and the host State has been successful in its efforts to improve the situation of the relevant people by implementing their right to internal self-determination.78 A few points, however, have to be taken into consideration when assessing whether the remedial right to secession has ceased to exist. First, the improved situation of the relevant people within the host State has to be “permanent and reliable” for the right to expire. Second, the host State’s maltreatment of the relevant people must not have been severe so that co-existence within one State is still feasible.79 And third, it should be recalled that an oppressed people is obliged to first seek less drastic measures to improve its situation within the host State before it may use its right to secession, and in this respect, it should be taken into account that it may take years for a people to exhaust all effective remedies.80 Therefore, the time that has passed since the oppression ended may not be hold against the people in question if it has used this time “to satisfy the procedural condition for the exercise of the right to external self-determination, namely the exhaustion of all effective remedies to achieve a settlement.”81
76 Ibid., pp. 370-371. 77 Ibid., p. 372. 78 Written Statement of the Federal Republic of Germany, Concerning Request of United Nations General Assembly for Advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 15 April 2009, pp. 35-36. 79 Ibid., p. 36. 80 Written Statement of Germany, p. 36. 81 Written Statement of the Kingdom of the Netherlands, Concerning Request of United Nations General Assembly for Advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 17 April 2009, p. 12, para. 3.15. 25
Nevertheless, the existence of a remedial right to secession remains disputed. Proponents of this theory have tried to prove its existence by referring to, e.g., the statement of the International Commission of Jurists regarding the ‘safeguard clause’, in which the Commission noted that the principle of territorial integrity is:
“(…) subject to the requirement that the government does comply with the principle of equal rights and does represent the whole people without distinction. If one of the constituent peoples of a State is denied equal rights and is discriminated against, it is submitted that their full right of self- determination will revive.”82
In other words, the Commission confirms that peoples do have the right to secede from a State that does not fulfil its obligation under the ‘safeguard clause’. Thus, it adheres to the theory of remedial secession.83
A similar interpretation of the ‘safeguard clause’ has been used by the Supreme Court of Canada in Reference re Secession of Quebec:
“International law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign States and consistently with the maintenance of the territorial integrity of those States. Where this is not possible, in the exceptional circumstances (…), a right of secession may arise.”84
“When a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.”85
Yet, before explicating the ‘safeguard clause’, the Supreme Court omitted to confirm the existence of remedial secession as it mentioned that:
“(…) international law does not specifically grant component parts of sovereign States the legal right to secede unilaterally from their "parent" State. Given the lack of specific authorization for unilateral secession (…) proponents of the existence of such a right at international law are therefore left to
82 International Commission of Jurists, ‘The Events in East Pakistan, 1971: A Legal Study’, 1972, p. 40, available at:
Proponents and adversaries of the remedial secession theory selectively use these paragraphs to ascertain their claims. However, adversaries of the remedial secession theory also refer to General Recommendation XXI (48) of the Committee on the Elimination of Racial Discrimination, in which the Committee declared that:
“International law has not recognized a general right of peoples unilaterally to declare secession from a State.”87
The aim of the said General Recommendation was to condemn the secessionist claims made by peoples, and in particular minorities, against sovereign and independent States, as is made clear by the observations of the Committee members.88
3.3 People vs. minority
To have a better understanding of the right to self-determination it is important to comprehend the meaning of ‘people’, since peoples are granted the right to self-determination. Though the definition of a ‘people’ is significant for the scope of application of the right to self-determination, none of the relevant international documents have defined the term. It has therefore been uneasy to determine who the holders of the right are. The right to self-determination seems to be reserved for peoples only. This, however, has not stopped minorities from appealing to the right of self-determination, often because they claim to be a people.
The distinction between the rights of peoples and minorities can be seen in various international treaties; minorities and peoples are mentioned in separate sections of the Helsinki Final Act,89 the
86 Ibid., para. 111. 87 Committee on the Elimination of Racial Discrimination, General Recommendation No 21: Right to Self- Determination, UN GAOR, 51st Sess., Supp. No. 18, UN Doc. A/51/18 (1996), p. 125, para. 11. 88 Committee on the Elimination of Racial Discrimination, Summary Record of the 1147th Meeting, 13 March 1996, UN Doc. CERD/C/SR.1147, para. 23; Mr. Wolfrum: “Committee should make plain its opposition to secession“, para. 25; Mr. Valencia Rodriguez: “It should be made quite clear that the Committee was not in the business of encouraging secession”, para. 29; Mr. Garvalov: “The Committee should make it clear that it stood firmly against secession or the impairment of the integrity of independent States”, para. 31; Mr. Ferrero Costa: “The Committee did not support groups that were trying to secede from or dismember a State. The Committee was defending the territorial integrity and political unity of sovereign and independent States”, available at:
1990 Charter of Paris90 and the ICCPR.91 In the latter convention, peoples are granted the right to self-determination under Article 1, which provides that:
“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
Whereas individuals belonging to a minority group are entitled to “enjoy their own culture, profess and practice their own religion or to use their own language” under Article 27 of the ICCPR. The difference between the rights set forth in Article 27 and that under Article 1 has been further emphasized by the Human Rights Committee in the following wording:
“The Covenant draws a distinction between the right to self-determination and the rights protected under Article 27. The former is expressed to be a right belonging to peoples (…). Article 27, on the other hand, relates to rights conferred on individuals (…) the enjoyment of the rights to which Article 27 relates does not prejudice the sovereignty and territorial integrity of a State party.”92
Minorities are, according to some analysts, not provided with the protection that is needed for the preservation of their identity, amongst others, because Article 27 of the ICCPR is considered to be a right that allots to individual members of a minority those rights which are already possessed by other individuals not belonging to a minority. Hence, Article 27 is said to merely prohibit the denial of rights, which non-minorities already enjoy, to members of minority groups. It is thus, next to Articles 2 and 26 of the ICCPR, another provision that prohibits discrimination.93
89 Principle VIII of the Helsinki Final Act confers on peoples the right to self-determination, while Principle VII deals with minority rights; Final Act of the Conference on Security and Co-operation in Europe, (Helsinki, 1 August 1975), 14 ILM 1292 (1975). 90 The 1990 Charter of Paris mentions people’s right to self-determination in the Chapter on ‘Friendly Relations among Participating States’, whereas minority rights is inserted in the Chapter on ‘Human Dimension’; Charter of Paris for a New Europe and Supplementary Document to Give Effect to Certain Provisions of the Charter, (Paris, 21 November 1990), 30 ILM 190 (1991). 91 International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), UN GAOR , 21th Sess., Supp. No. 16, UN Doc A/6316 (1966), at 52, (New York, 16 December 1966), 999 UNTS 171, entered into force 23 March 1976. 92 Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/21/Rev.1/Add.5., UN GAOR, 49th Sess., Supp. No. 40, UN Doc. A/49/40(Vol I) (1994), at 106, paras. 3.1- 3.2. 93 J. Crawford, ‘The Right to Self-Determination in International Law: Its Development and Future’, in: Philip Alston (ed.), Peoples Rights, Oxford: Oxford University Press 2001, pp. 23-24. 28
Although there is no uniform definition of the term ‘minority’, many experts have made an attempt to create one. One of the most cited definition of a ‘minority’ is that of Capotorti, who wrote in 1979 that a minority comprises:
“(…) a group which is numerically inferior to the rest of the population of a State, in a non-dominant position, whose members -being nationals of the State- possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”94
From the above description, it can be concluded that the definition of a ‘minority’ consist of, at least, the following elements: (1) an objective element, i.e. the minority must distinguish itself from the rest of the population by possessing a distinct ethnic, religious, or linguistic attribution; (2) a subjective element, which means that the minority must have the will to protect its distinct identity,95 and (3) the minority must make up less than fifty per cent of the host State’s total population.96
Besides the lack of a uniform definition of a ‘minority’, there is also no general accepted definition of a ‘people’, though the UNESCO International Meeting of Experts did describe a ‘people’ as “a group of individual human beings who enjoy some or all of the following common features: (a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f) territorial connection; (g) common economic life, and furthermore,
94 Although many definitions of ‘minorities’ contain similar elements, there has been a lot of differences in opinion with regard to some of these elements, which is why the definition was never formally accepted. Some, for example, contested the requirements of a ‘non-dominant’ position and the ‘numerical inferiority’, since many minorities constitute a majority in a specific part of a State. Others wanted to remove the part on citizenship etc. As there are many various minority groups, it has become complicated to invent a definition that applies to all of them; C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993, p. 158; Raič 2002, p. 265. 95 The subjective criterion also entails the free will of individual members of a minority to identify themselves with the minority group; Ghanea & Xanthaki 2005, p. 166. 96 Ibid., p. 167. Gudmundur Alfredsson also mentions that a minority must be settled in the State of residence for a very long time, so there is also a ‘time element’ in the definition of ‘minority’. It is this ‘time element’ which differentiates a minority from migrant workers, immigrants, refugees, stateless persons or other foreigners; ibid., pp. 165-167. This distinction between minorities and immigrants, refugees etc. is secured in the definition of ‘national minority’, as proposed by the Parliamentary Assembly of the Council of Europe, by the inclusion of the conditions of ‘citizenship’ and the “maintenance of long-standing, firm and lasting ties with that State”; European Commission for Democracy through Law: Opinion on the Interpretation of Article 11 of the Draft Protocol to the European Convention on Human Rights annexed to Recommendation 1201 of the Parliamentary Assembly, (1996) – CDL-MIN(96)4, p. 6, [hereinafter “Venice Commission 1996”], available at:
As can be noticed, the description of a ‘people’ has many similarities to that of a ‘minority’, for it also possesses an objective and a subjective element. The relation between minorities and peoples is well expressed in the aforesaid remedial secession theory. Buchheit, one of the advocates of this theory, elucidates the relation between the two by stressing that minorities are not necessarily peoples, but their status could be elevated to that of a people if they are oppressed by their own State, in which case, minorities could acquire a right to external self-determination. Buchheit labels minorities, for this reason, as ‘potential peoples’.98 In section 3.5, the term ‘minority’ and ‘people’ will be further elaborated and it will be concluded that, regardless of the presence of an oppressive government, not all minorities are qualified as a ‘potential people’.
3.4 Holders of the right to self-determination
As is stated above, the term ‘people’ is somewhat vague, which is why many scholars have tried to define and interpret it in order to identify the holders of the right to self-determination. This has led to different hypothesizes of which several will be discussed in this section. To begin with, some commentators have used a territorial-based definition of a ‘people’ in order to determine the holders of the right to self-determination. In this view, the subjects of self-determination are not determined by their cultural or linguistic characteristics, but by existing external boundaries, which means that only an entire population of an existing State can attain a right to self-determination. This entails the exclusion of a part of a State’s population from secession.99
Such a view of the subjects of self-determination has been contested by some scholars. Raič, for example, has refuted the territorial-based definition of a people by reiterating the wording of paragraph 7 of Principle V of the Friendly Relations Declaration: “(…) a government representing the whole people (…) without distinction as to race, creed or colour.” This distinction, according to Raič,
97 The UNESCO International Meeting of Experts on Further Study of the Concept of the Rights of Peoples further enumerated that “the group must be of a certain number which need not be large (e.g. the people of micro States) but which must be more than a mere association of individuals within a State, and possibly, the group must have institutions or other means of expressing its common characteristics and will for identity”; United Nations Educational Scientific and Cultural Organization, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples: Final Report and Recommendations, 22 February 1990, UN Doc. SHS-89/CONF.602/7, pp. 7-8. 98 T.D. Musgrave, Self-Determination and National Minorities, Oxford: Oxford University Press 1997, p. 171. 99 Raič 2002, p. 244. 30 implies that the Friendly Relations Declaration does recognize the existence of more than one people, and thus subgroups, within a State.100
Rejecting subgroups, i.e. a part of a State’s population, as holders of the right to self-determination would also not coincide with the purpose of self-determination, which is to maintain “the collective identity of a ‘people’ as a group.” This is because the collective identity of a whole population is less in peril, and, thus, needs less protection compared to the identity of a subgroup, which is numerically inferior and has usually a subordinate position within its home State.101 Raič continues his argument by stressing that international documents all underline the restricted effect which the principle of territorial integrity has on the exercise of self-determination. Emphasizing on the priority of territorial integrity over self-determination would make no sense if self-determination was meant to apply solely to the whole population of an independent State. The territorial integrity would, in such case, not be threatened and, therefore, in no need of protection against the effects of self- determination. Hence, subgroups are holders of the right to self-determination.102
It is also worth to mention Cassese’s line of reasoning. In his view, self-determination is not a right which is only accorded to the entire population of an independent State, but is also conferred on religious and racial subgroups.103 He reaches this conclusion by interpreting the aforementioned phrase “without distinction as to race, creed or colour” of the Friendly Relations Declaration. ‘Race’ and ‘colour’ are used synonymously for the notion ‘race’, while ‘creed’ is meant to refer exclusively to religious beliefs.104 These terms do not refer to national or linguistic groups. That is why Cassese stresses that linguistic or national subgroups do not enjoy a right to internal or external self- determination.105 Shutting out linguistic or national groups from the political decision-making process of a State would, under Cassese’s interpretation, not breach the ‘safeguard clause’ of the Friendly
100 Ibid., p. 247. 101 Ibid., p. 248. 102 Ibid., pp. 248-249. A territorial-based definition of a ‘people’ is likewise disputed by the Supreme Court of Canada, see Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para. 124: “It is clear that "a people" may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to "nation" and "state". The juxtaposition of these terms is indicative that the reference to "people" does not necessarily mean the entirety of a state's population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose.” 103 A. Cassese, Self-Determination of Peoples: A legal Reappraisal, Cambridge: Cambridge University Press 1995, p. 114. 104 Ibid, pp. 113-114. 105 Ibid., p. 114. 31
Relations Declaration. However, this outcome of Cassese’s interpretation would, according to Raič, be contradictory to the Declaration’s requirement of a ‘representative government’.106
Raič further notices that the wording, “without distinction as to race”, is more of a reference to racial discrimination. To explain the connotation of racial discrimination, he brings up Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, which stipulates that “the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin.” Discrimination based on race is, thus, extended to differentiations made on the basis of nationality or ethnicity, and therefore, not restricted to distinctions made on the basis of race or colour.107 Raič exemplifies this further by referring to the UNESCO Declaration on Race and Racial Prejudice in which the terms ‘race’ and ‘ethnic groups’ are used interchangeably,108 and to Section 1 (2) of the 1993 Vienna Declaration and Programme of Action, which is almost identical to the ‘safeguard clause’ of the Friendly Relations Declaration, but uses the phrase “a government representing the whole people belonging to the territory without distinction of any kind” instead.109 This indicates that a government is not permitted to exclude national or ethnic subgroups, in addition to racial or religious subgroups, from participation in its decision-making process.110
Hence, on basis of Raič’s arguments, it can be concluded that racial, religious, national and ethnic subgroups within the state are considered to be holders of the right to self-determination in addition to the entire population of a sovereign State.111 To find out whether ethnic minorities do belong to such a subgroup, it is necessary to further outline the meaning of the collective individuality of a people, which will be dealt with in the following section.
3.5 The definition of collective individuality
A subgroup may be identified as a people if it possesses a collective individuality. This collective individuality distinguishes a people from other groups on the global level and consists of the aforementioned objective and subjective criteria’s. Thus, the requirements for the collective individuality, which defines a subgroup as a people, are fulfilled when there is an objective criterion, i.e.:
106 Raič 2002, p. 250. 107 Ibid., pp. 251-252. 108 Ibid., p. 252. 109 Ibid., p. 255. 110 Ibid., p. 257. 111 Ibid. 32
1) a group of individual human beings who enjoy some or all of the following features:112 a) a (historical) territorial connection, on which territory the group forms a majority; b) a common history; c) a common ethnic identity or origin; d) a common language; e) a common culture; f) a common religion or ideology;113 And a subjective criterion, i.e.:
2) The belief of being a distinct people distinguishable from any other peoples inhabiting the globe, and the wish to be recognized as such, as well as the wish to maintain, strengthen and develop the group’s identity.114
Only a group that possesses such a collective individuality is categorized as a people, which means that they are holders of the right to self-determination.115 A group that is qualified as a people may form a minority within a State. In that case, they are referred to as a ‘minority-people’. However, a minority-people should not be confused with an ethnic or national minority.
We can speak in terms of ‘ethnic minorities’ when a specific ethnic group is residing in a host State, while other members of the same ethnic group are inhabiting the territories of another neighbourly State (often called a ’kin State’) where they are constituting a majority.116 The term ‘national minority’ is frequently used as a synonym for ‘ethnic minority’, but can also be used to refer to “all religious, ethnic or linguistic minorities within a State, who are nationals of that State”, including those that are not related to a kin State.117 An ethnic minority shares the same objective qualities118 as their brethren in the kin State. In addition to the absence of an objective criterion on a global level, an ethnic minority is also lacking a subjective criterion, because they feel related to their brethren in the kin State. Thus, unlike a minority-people, an ethnic minority does not satisfy the conditions needed to acquire a collective individuality on a global level, which is needed to be qualified as a people.119
112 Ibid., pp. 262-263. 113 Ibid. 114 Ibid. 115 Ibid., pp. 263-264. 116 Ibid., p. 268. 117 Tomuschat (ed.) 1993, pp. 142-143. 118 Except for the requirement of a territorial connection; Raic 2002, pp. 262-263. 119 Ibid., p. 269. 33
The presence of a collective individuality is, thus, what discerns a people from an ethnic minority. Peoples do possess a collective individuality on the global level.120 On the contrary, an ethnic minority is only able to distinguish itself from others living within the territory of the State it inhabits. In other words, an ethnic minority only possesses a distinct collective identity (objective and subjective criteria) within the boundaries of the State in which it resides, i.e., on the domestic level. Outside the boundaries of the State of residence, the ethnic minority will just blend in with another people that share the same objective and subjective criteria’s.121 To exemplify this; the Serbs in Serbia are a people, the Serbs in Croatia and Bosnia are identified as ethnic minorities, whereas the Kurds in Turkey, Iraq, Iran and Syria are labelled as a minority-people, as are the Tibetans in China. It should also be borne in mind, that minorities and peoples, are not “static concepts” and thus members of a minority may one day become a people or vice versa, for example, through voluntary assimilation or border modifications.122
To sum up Raič’s view, an ethnic group that is residing in a sovereign State is either an ethnic minority (when it does not have a collective individuality on the global level) or a minority-people (in case the ethnic group does have such a collective individuality). A minority-people may enjoy the protection of minority rights as well as the right to self-determination, whereas an ethnic minority is only able to make use of minority rights alone.123
3.6 The impact of uti possidetis on the status of Karabakh Armenians as ethnic minorities
According to the aforementioned description of a ‘people’ and a ‘minority’, the Armenians in Azerbaijan belong to the latter group since they are unable to distinguish themselves from all other groups on the global level, that is to say the Armenians of Armenia. In this regard, it should be noted that the status of the Karabakh Armenians as ethnic minorities was somewhat predetermined by the principle of uti possidetis juris.
Although the ambit of this principle has transformed over time, in its contemporary form, it applies to decolonization and dissolution of federations and entails the transformation of colonial administrative borders or federal internal borders into new international borders.124 Uti possidetis implies that a colonial unit, after gaining independence, or a constituent part of a federation after
120 Ibid., p. 266. 121 Ibid., p. 267. 122 Ibid. 123 Ibid., p. 269. 124 Ibid., p. 298. 34 dissolution, will acquire no more or less than the territory that was formerly designated to it by the colonial power or federal authorities, and thus, the frontiers of such a unit are protected from external threats coming from other colonial units or federal constitutive parts.125
In addition, uti possidetis provides colonial units or constituent parts of a federation with protection against internal territorial threats.126 While all members of the same ethnic group are recognized as holders of the right to external self-determination during the decolonization or dissolution, they are only able to exercise this right as the entire population of the administrative unit in which they reside and therefore may only use the right against the colonial power or federation. Ethnic groups are thus not vested with the right to exercise external self-determination separately from the rest of the population of their administrative unit in order to secede from that particular administrative unit. Consequently, the possibility of ethnic groups to unite is made difficult as not all members of an ethnic group reside within the same colonial unit or federal constitutive part. In sum, the principle of uti possidetis restricts the geographical scope of the right to self-determination.127 It is nonetheless not completely impossible for an ethnic group to separate from the administrative unit of which it forms a part since uti possidetis does not inhibit the alteration of administrative borders if there is concord between the involved parties.128
Though uti possidetis was initially applied to situations of decolonisation, it was subsequently employed during the dissolution of the Soviet Union, among others, because it was prescribed by the ‘EC Guidelines on Recognition of New States in Eastern Europe and in the Soviet Union’129 of 16 December 1991. The EC Guidelines determined that the recognition of these new States required the “respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement.” This sentence implies “the principle of continuity of boundaries in the event of change of sovereignty.”130 Accordingly, it impelled Armenia to desert its dream of reunification with
125 Pavković & Radan (ed.) 2008, p. 56. 126 Ibid., p. 59. 127 Raič 2002, p. 304. 128 J. Summers, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations, Leiden: Martinus Nijhoff Publishers 2007, p. 392. 129 Raič 2002, p. 302. 130 The principle was also respected by the union republics of the Soviet Union in Article 5 of the Agreement Establishing the Commonwealth of Independent States of 8 December 1991, which called upon the high contracting parties to “acknowledge and respect each other’s territorial integrity and the inviolability of existing borders within the Commonwealth.” This approach was further reaffirmed in the Alma Alta Declaration of 21 December 1991 that was signed by most union republics of the Soviet Union, Armenia and Azerbaijan included, in which they declared to recognize and respect “each other's territorial integrity and the inviolability of the existing borders”; J. Summers (ed), Kosovo: A precedent? The Declaration of Independence, the Advisory 35
Nagorno-Karabakh in return for the international recognition of its statehood. Because of uti possidetis, the successor State of Azerbaijan SSR, i.e. the Republic of Azerbaijan, would, according to international standards, inherit the borders given to it by the Soviet Union. This included Nagorno- Karabakh. Thus, uti possidetis sustained Azerbaijan’s sovereignty over Nagorno-Karabakh and forced the Karabakh Armenians to put up with Azeri domination inasmuch as their status of ethnic minority was hereby given.
3.7 Conclusion
Although international law discerns between the rights of minorities and peoples, there is no generally accepted definition of a ‘minority’ or a ‘people’, which makes it complicated to distinguish one from the other and consequently may obstruct a group from obtaining self-determination. To comprehend the difference between these two groups, the definition of a ‘minority’ and a ‘people’, as adhered by Raić, has been elaborated in this Chapter. According to Raić, a group that possesses a collective individuality on the global level will be classified as a people. A people may form a minority within a State. In that case, it will be identified as a minority-people. A group that does not have a collective individuality on the global level is recognized as an ethnic minority.
Ethnic minorities are entitled to minority rights, meaning that States may not deny them cultural rights as set out in Article 27 of the ICCPR. By contrast, minority-peoples are, in addition to minority rights, also entitled to self-determination. This usually entails equal access to government, i.e. internal self-determination, which does not lead to the alteration of existing international boundaries and therefore forms no threat to the territorial integrity of sovereign States, as is the case with external self-determination. It is argued, however, that when a minority-people is denied the enjoyment of internal self-determination, they will acquire a remedial right to unilaterally secede from the host State (i.e. an external form of self-determination).
As regards the Karabakh Armenians, the principle of uti possidetis, as was employed during the dissolution of the Soviet Union, ruled out border modifications of the former union republics of the USSR. This marked the Karabakh Armenians as ethnic minorities, because with the internal borders of the USSR being internationally recognized as external borders, Azerbaijan SSR was simultaneously recognised as a new State; this included Nagorno-Karabakh and accordingly the Karabakh Armenians are only able to distinguish themselves from other ethnic groups within Azerbaijan. Outside
Opinion and Implications for Statehood, Self-Determination and Minority Rights, Leiden: Martinus Nijhoff Publishers 2011, p. 328. 36
Azerbaijan, they resemble another ethnic group that has established its own State, namely the Armenians of Armenia. Being an ethnic minority also entails the exclusion of self-determination rights, including the right to autonomy or remedial secession. However, practice shows that minorities could be subjects of internal self-determination as there are ethnic minorities who have been given the right to regional autonomy. This will be further explicated in the next Chapter.
37
4. Internal self-determination
As has already been mentioned, autonomy is a form of internal self-determination which may only be exercised by (minority-)peoples. Nonetheless, autonomy has been accorded to ethnic minorities, such as those in Finland and Italy and it is furthermore this form of self-determination that is currently being endorsed by several international organisations as the solution to the Nagorno- Karabakh conflict. The connection between internal self-determination and the protection of national minorities will be exemplified in this Chapter by the cases of the Ǻland Islands and South Tyrol and the efforts undertaken by several international organisations to connect the two concepts. This will explain on what basis ethnic minorities, such as the Karabakh Armenians, could obtain internal self-determination and whether this is currently feasible in the case of Nagorno-Karabakh.
4.1 The right to autonomy
A right to autonomy enables the subjects of that right to enjoy some form of self-government within an existing State. Self-government and autonomy have, therefore, been used as synonyms.131 The relation between self-government and self-determination can be detected in the Friendly Relations Declaration, which enumerates the possible outcomes of the right to self-determination when exercised by a people; this includes, inter alia, “the emergence into any other political status”, which indicates that a part of a population may choose for autonomy as a way to implement its right to self-determination.132
There are many forms of autonomy, such as cultural or personal autonomy. This is, however, less related to the right of self-determination.133 Autonomy, in this thesis, only refers to regional autonomy. In this form of autonomy, an ethnic group, which constitutes a majority within a certain part of a State’s territory, will obtain legislative, executive and judicial powers, which are exercised by their own political institutions. The State, therefore, has to transfer some of its jurisdiction to the autonomous region. The competences of the autonomous authorities can be broad or narrow, depending on the agreement reached between the State and the people demanding autonomy.134 The autonomous authorities within a sovereign State are, however, excluded from exercising power over certain important matters, such as defence or external relations. These are competences that
131 M. Suksi (ed.), Autonomy: Applications and Implications, The Hague: Kluwer Law International 1998, p. 79. 132 Ibid., p. 82. 133 Ibid., p. 86. 134 Ibid. 38 can only be exerted by the central authorities of the State, which remains the highest authority within the autonomous region. For this reason, Hannum has described autonomy as being “one step below full self-determination but one step above minority rights.”135
4.2 Autonomy for the ethnic minorities in Finland and Italy
4.2.1 The Ǻland Islands
Finland and the Ǻland Islands, both a Swedish territory, were ceded to Imperial Russia after the conclusion of the Finish War in 1809. The Ǻland Islands became, thereupon, part of the autonomous Grand Duchy of Finland within Russia’s borders. Finland declared its independence from Russia during the Bolshevik takeover of the Russian Empire in 1917. The Ǻlanders, who considered themselves Swedish, sought to do the same by proclaiming their independence from Finland in order to unite with Sweden. Finland would not accede to the separation of the Islands, but was willing to grant the Ǻlanders autonomy. Finland’s offer of autonomy was, however, declined by the Ǻlanders, who turned to Sweden in order to find support in their quest for reunification. This was perceived as an act of treason and, as a result, two Ǻland leaders were detained in Finland, which consequently increased the tension between Sweden and Finland. The matter was eventually brought before the Council of the League of Nations.136 A Committee of Jurists and a Commission of Rapporteurs made recommendations to the Council, which eventually decided that Finland would retain its sovereignty over the Ǻland Islands.137
As regards the principle of self-determination, the Committee of Jurists noted that it had the same objective as minority rights, i.e., “to assure to some national group the maintenance and free development of its social, ethnical or religious characteristics.”138 Self-determination and minority rights were, thus, different approaches for realizing a common goal. Whether this goal could best be achieved through self-determination or minority rights was decided by the factors of stability and oppression.139
135 Ibid., pp. 79 & 86. 136 Musgrave 1997, pp. 32-33. 137 Decision of the Council of the League of Nations on the Aaland Islands including Sweden’s Protest, placed on record 24 June 1921, LNOJ 697 (September 1921), available at:
The Commission of Rapporteurs, in this regard, followed the same line of reasoning. It asserted that minorities did not have a right to secede from a State that ensured them with “guarantees for the preservation of its social, ethnical or religious character.” Giving such a right to every minority or any fractions of a population “because it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the State as a territorial and political unity.” Secession could, however, be granted to minorities, but only as “a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees.”140
Ethnic minorities could thus under exceptional circumstances be subjects of internal as well as external self-determination. This broadmindedness of the Commission could be explained by its own interpretation of minority protection and self-determination; since both self-determination and minority rights were perceived as different methods for attaining the same purpose, it was possible to replace the methods for the sake of achieving that purpose, though the factors of stability and oppression had to be taken into account when replacing one method by the other.141 Notwithstanding the Rapporteur’s benevolent interpretation of minority protection, it did notice that self-determination was not a “positive rule of the Law of Nations” because it was not inserted in the Covenant of the League of Nations.142 Nonetheless, self-determination would become applicable in cases where States were “not yet fully formed or undergoing transformation or dissolution.”143 On the contrary, when a State was “definitely constituted” self-determination would be confined by State sovereignty.144
As a minority, the Ǻlanders were not eligible for secession since the factor of oppression was lacking; they were not oppressed by the Fins, and Finland was even prepared to offer the Ǻlanders autonomy as a way to protect them from assimilation.145 Nonetheless, the Rapporteurs did notify that secession
140 Aaland Islands, Report of the Commission of Rapporteurs, LN Council Doc. B7/21/68/106 (April 1921), p.4, [hereinafter “Report of the Commission of Rapporteurs”], available at:
Although the Ǻland Islands case took place decades before the advent of the United Nations, it does have some significance in modern international law because of the similarities between the report of the Commission of Rapporteurs and the remedial secession theory as interpreted by some in the ‘safeguard clause’ of the Friendly Relations Declaration. Both defend the territorial integrity of independent and sovereign States against secessionist claims from groups within for the sake of international peace and stability. The State’s territorial integrity is protected for as long as it is willing to preserve the different identities of the groups living inside its territory as both allow groups, which are being persecuted by their States, to seek separation from that State. Because of these similarities, Finland even contended in its written statement to the International Court of Justice (ICJ) that the rationale of the Ǻland Islands case “was echoed in the Friendly Relations Declaration.”149 However, the Friendly Relations Declaration is more prudent as it does not directly threaten States with secession, which is why there is so much disagreement as to the question whether the Friendly Relations Declaration actually does justify remedial secession. The report of the Commission of Rapporteurs, on the other hand, is very clear on the issue; States may be sanctioned with secession if they persecute minorities residing within their borders and intend to continue enforcing their oppressive policy towards their minorities.
would affect their daily lives in Finland as it would intensify hatred amongst the Finnish majority towards them and this in turn would further deteriorate the diplomatic relation between the two countries; ibid., p. 7. 146 Ibid., p. 13. On grounds of these recommendations, the official language in the Islands has become Swedish; ibid., p.11; the Council of the Ǻland Islands has the right to nominate a number of persons from which one must be elected by the Finnish Government to assume the post of Governor of the Ǻland Islands; ibid, p. 12, and the Government of the Ǻland Islands is vested with the competence to regulate immigration to the Islands; ibid., p. 12. 147 The Aaland Agreement in the Council of the League of Nations, placed on record 27 June 1921, LNOJ 701 (September 1921), available at:
4.2.2 South Tyrol
When the Austrian-Hungarian Empire was defeated by the Allies after the First World War, the victors decided to dissolve the Empire, and consequently, the Austrian provinces of South Tyrol and Trento were transferred to Italy in 1919 as a reward for its contribution to the war.150 Trento was mainly inhabited by Italians, whereas eighty-six per cent of the residents of South Tyrol were German-speaking.151 During Mussolini’s rise to power, a policy of Italianization was initiated to forcibly assimilate the minorities in Italy, which of course adversely affected the existence of the identity of the German-speaking South Tyrolese. At the end of the Second World War, the South Tyrolese were calling for the restoration of the pre-1919 Austrian borders, but Italy and Austria mutually decided, in the 1946 De Graspi-Gruber Agreement, that South Tyrol was to be accorded regional autonomy within Italy.
The provisions of the Agreement were somewhat unclear and, therefore, it left Italy with a broad discretion as how to implement the Agreement.152 Accordingly, the provinces of South Tyrol and Trento were made part of the autonomous region of Trentino-Alto Adige. Merging these two provinces made self-government practically impossible for the South Tyrolese, because the Italian population in the combined provinces was much larger compared to the South Tyrolese. Therefore, two-thirds of the seats in the Regional Parliament of Trentino-Alto Adige were accorded to Italians.153
Austria thereupon accused Italy of circumventing the aforesaid Agreement, and in 1960, referred the issue to the UNGA. According to Austria, Italy had bypassed the provisions of the De Graspi-Gruber Agreement by deciding to combine the provinces of Trento and South Tyrol in the autonomous region of Trentino-Alto Adige. In this way, the South Tyrolese inhabitants were deprived from their right to autonomy, which was practically given to the Italians of Trento.154
150 Cassese 1995, p. 104; A. Alcock, ‘The South Tyrol Autonomy: A Short Introduction’, County Londonderry, Bozen/Bolzano, 2001, p. 1, available at:
External self-determination was presented by Austria as the only way to truly resolve the problem of the South Tyrolese, but Austria concurrently acknowledged that this “would seriously disturb democratic Europe and be harmful to the interests of all concerned.” Therefore, Austria vowed that it would not make further demands for border adjustments between the two States. Instead, it would insist Italy to grant South Tyrol full regional autonomy as was decided in the De Graspi-Gruber Agreement.155
In the UNGA Resolution 1497 (XV),156 the two States were urged to continue negotiations and find a solution based on the 1946 Agreement. The same was reiterated in UNGA Resolution 1661 (XVI).157 Since the De Graspi-Gruber Agreement promoted an internal form of self-determination, both UNGA resolutions were perceived by Italy as a denial of the right to external self-determination for its German-speaking minority.158
Negotiations between Italy, Austria and the largest political party of South Tyrol eventually resulted in the 1972 revised Statute of Autonomy, which broadened the competences of the autonomous authorities in South Tyrol. However, the provinces of Trento and South Tyrol remained constituent parts of the autonomous region of, what was renamed to, Trentino-Alto Adige/Südtirol, though the seats in the Regional Parliament were divided 50/50 between the Italians and German-speaking South Tyrolese.159
4.3 Internal self-determination and ethnic minorities
In contemporary international law, self-determination has been universally acknowledged as a principle since the adoption of the UN Charter, but international documents have excluded ethnic minorities from acquiring a right to self-determination since this is only reserved for peoples.160 It could, however, be argued that ethnic minorities are not denied from enjoying internal self- determination. For instance, the UNGA promoted internal self-determination as a means to resolve the conflict between Italy and Austria over the ethnic minorities in South Tyrol, though it was wary not to use the term self-determination in its resolutions. Cassese has even claimed that the UNGA
155 Ibid., pp. 105-106. 156 The Status of the German-speaking Element in the Province of Bolzano (Bozen); Implementation of the Paris Agreement of 5 September 1946, GA Res. 1497(XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doc. A/4684 (1960), at 5. 157 The Status of the German-speaking Element in the Province of Bolzano (Bozen), GA Res. 1661 (XVI), UN GAOR, 16th Sess., Supp. No. 17, UN Doc. A/5100 (1961), at 10. 158 Cassese 1995, p. 106. 159 Alcock 2001, pp. 11-12. 160 Gudeleviciute 2005, p. 53. 43
Resolutions 1497 and 1661 (both South Tyrol) have displayed the UN’s view with regard to minorities; it did not allow minorities to invoke the right to external self-determination, but “believed-or at any rate did not challenge the view- that those groups (i) are entitled to internal self- determination and (ii) internal self-determination may or should be implemented by the granting of ‘complete autonomy’ to those groups”.161
Hence, there is no positive rule in international law that grants ethnic minorities the right to internal self-determination, but ethnic minorities are not prohibited from acquiring such a right. To this end, the transferal of autonomy to ethnic minorities is made possible by bilateral treaties, such as the De Graspi-Gruber Agreement (South Tyrol) or the Åland Agreement in the Council of the League of Nations. Such established autonomies, in the words of Pentassuglia, “directly stems from the principle pacta sunt servanda, not the law of self-determination and human rights as such.”162
Providing autonomy to ethnic minorities, however, seems to be a very rare occurrence inasmuch as there are but a few examples, such as the Ukraine,163 Bosnia-Herzegovina164 and the Aosta Valley in Italy165 in addition to the above given examples. These examples show that, even though there is no legal right to autonomy for ethnic minorities in international law,166 autonomy can be accorded to ethnic minorities, but this is only done when the territorial integrity of the host State is at stake and the conferral of autonomy is seen as a last resort by the host State to end the conflict which threatens its territorial integrity. Thus, implying that minorities should, in the first place, rely on minority rights alone. Likewise, the Commission on the Elimination of Racial Discrimination seems to defend the territorial integrity of States by endorsing the conferral of internal self-determination to all national minorities.167
161 Cassese 1995, p. 107. 162 G. Pentassuglia, Minorities in International Law: An Introductory Study, Strasbourg: Council of Europe Publishing 2002, p. 173. 163 The Soviet Union transferred the Crimean Autonomous Soviet Socialist Republic to the Ukranian SSR in 1954. Crimea, which is inhabited by a majority of ethnic Russians, remained an autonomous part of the Ukraine after the collapse of the Soviet Union, even though the ethnic Russians in Crimea desired and still advocate the unification with Russia. 164 The Serb minority in Bosnia was granted autonomy by the 1995 Dayton agreement which put an end to the Bosnian war and divided Bosnia into two autonomous entities; the Republika Sprska and the Federation of Bosnia and Herzegovina. 165 The region Aosta Valley, where half of the population is French-speaking, was accorded autonomy in 1948 to halt secessionist sentiments that arose after years of Italianization under Mussolini’s reign. 166 Suksi 1998, p. 32; Pentassuglia 2002, p. 173. 167 See comments of Committee Members in CERD, Summary Record of the 1147th Meeting, 13 March 1996, CERD/C/SR.1147, para. 26; Mr. Garvalov: “Minorities should enjoy a measure of autonomy,” para. 31; Mr. Ferrero Costa: “The Committee was defending the territorial integrity and political unity of sovereign and 44
With regard to ethnic minorities, there is another factor, besides that of territorial integrity, which has been decisive for the conferral of autonomy to ethnic minorities. As the above cases show, the international organisations that were involved were more concerned with the preservation of the international peace and stability that was being threatened by tensions between ethnic groups inside a single State.168 By advocating internal self-determination for ethnic minorities in such situations, international organisations expected to maintain the international peace and stability as there is always a second State (i.e. kin State) involved in the struggle between a State and its ethnic minority. Such internal conflicts between a State and its ethnic minority could easily erupt into an international conflict since the kin State will unlikely allow a third State to use coercive measures or force against its brethren. It is therefore no surprise that the protection of minority rights has regained significance in recent years because of the acknowledgment of its interconnection with inter-state and in particular intra-state stability, as is confirmed by the Political Affairs Committee of the Council of Europe,169 the OSCE170 and the UNGA.171 independent States but, at the same time, urging that consideration be given to the internal self-determination and development of ethnic groups and minorities.” 168 See e.g., UNGA Res. 1497 (South Tyrol) in which the UNGA stated that it was “desirous of preventing the situation created by the dispute from impairing the friendly relations between the two countries” and “recommends that the countries in question should refrain from any action which might impair their friendly relations.” The resolution does not evolve around minority protection, but does briefly refer to it by urging Italy and Austria to reach an agreement with regard to the implementation of De Graspi-Gruber Agreement, which is designed to “safeguard the ethnical character and the cultural and economic development of the German- speaking element.” 169 Council of Europe Parliamentary Assembly Doc. 8939, Rights of National Minorities; the opinion of the Political Affairs Committee, rapporteur: Mr Gjellerod, approved by the Committee on 20 January 2001, paras. 1-5: “Present day conflicts are most of the time internal disputes and involve the question of protection of minorities (…), it is evident that multi-ethnic states are susceptible to violent escalation of a conflict and to an eventual state breakdown if minorities living in them are not adequately protected”, available at:
The realisation that an adequate minority protection system could contribute to stability in the region has, predominantly on the European level, led to attempts at broadening the ambit of minority rights by including a possible right to autonomy for national minorities. This will be further amplified in section 4.4 with the efforts undertaken by the Council of Europe, but first the Copenhagen Document of the OSCE will be exemplified. Paragraph 35 of the Copenhagen Document has presented autonomy as a conceivable manner for protecting the distinct identity of minorities:
“The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned.”172
Thornberry stresses that the “efforts” of certain States to provide autonomy to national minorities is only being “noted” by the said provision. Therefore, paragraph 35, though emphasising on the possibility of autonomy for national minorities, does not instate autonomy as the norm for minority protection, meaning that national minorities are not vested with the right to autonomy as it is up to the State to decide whether it wants to allocate a right to autonomy to a specific minority group.173
Moreover, the CSCE Report of the Meeting of Experts on National Minorities has, in similar vein, listed different approaches to minority protection that have proven to be successful in Member States that have put one of the mentioned approaches in practice. These approaches are meant to set an example for other Member States, and among these are forms of regional autonomy. Once again, autonomy is only put forward as a possibility and not as the norm for minority rights.174
4.4 Karabakh Armenian’s entitlement to internal self-determination
Nagorno-Karabakh is offered internal self-determination in resolutions adopted by international organisations that call for the restoration of Azerbaijan’s territorial integrity and the end of the
preamble: “Considering that the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to political and social stability and peace, and enrich the cultural heritage of society as a whole of the States in which such persons live.” 172 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, (Copenhagen, 29 June 1990), 29 ILM 1305 (1990), para. 35. 173 Suksi (ed.) 1998, p. 112. 174 See supra note 170, Chapter IV. 46 conflict that has dragged Armenia with it.175 Of these documents, the Council of Europe’s Parliamentary Assembly Resolution 1047 is of particular importance. It “calls on the warring parties (…) to respect minority rights as advocated in its Recommendation 1201.”176
Article 11 of Recommendation 1201 (1993) reads as follows:
“In the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the State.”177
This Article has been further clarified by the Venice Commission, which has specified that States could respect their duty under Article 11 by choosing between the three mentioned methods, i.e. special status, local authorities or autonomous authorities. Consultation, participation and involvement of minorities in matters that could directly affect them are regarded as minimum standards for a special status. As for the latter two methods, the Venice Commission mentions that Article 11 further leaves States with the discretion to choose a model of institution for local or autonomous authorities as there are a variety of such models in Europe to choose from.178
The fact that the competences of local or autonomous authorities have to be in accordance with the domestic legislation of the State further indicates that States have the liberty “to set the frame within which the rights to have local or autonomous authorities should be exercised.” The Venice Commission, however, does note that the State’s discretion with regard to such legal framework is constrained in the sense that the framework has to be in compliance with the European Convention
175 See e.g., UNGA Doc. A/RES/62/243, The Situation in the Occupied Territories of Azerbaijan, UN GAOR, 62nd Sess., Suppl. No. 49, adopted by the UN General Assembly at the 86th plenary meeting on 14 March 2008, para. 4: “Recognizes the necessity of providing normal, secure and equal conditions of life for Armenian and Azerbaijani communities in the Nagorno-Karabakh region of the Republic of Azerbaijan, which will allow an effective democratic system of self-governance to be built up in this region within the Republic of Azerbaijan”; Council of Europe Parliamentary Assembly, Resolution 1119 (1997), Conflicts in Transcaucasia, adopted by the Assembly on 22 April 1997 (Second part-session, 11th Sitting), para. 5(iii): “extensive autonomy status for (…) Nagorno-Karabakh to be negotiated by all the parties concerned.” 176 Council of Europe Parliamentary Assembly, Resolution 1047 (1994), Conflict in Nagorno-Karabakh, adopted by the Standing Committee, acting on behalf of the Assembly, on 10 November 1994, para. 6. 177 Council of Europe Parliamentary Assembly, Recommendation 1201 (1993), Additional Protocol on the Rights of Minorities to the European Convention on Human Rights, adopted by the Assembly on 1 February 1993 (44th Session- Fourth part, 22nd Sitting). 178 Venice Commission 1996, pp. 7-8. 47 on Human Rights (ECHR)179 and Recommendation 1201.180 The aforementioned opinion of the Venice Commission means, according to Ferdinando Albanese, that the Commission, “while asserting that there is no right of minorities to territorial autonomy under international law,” does “recognise that the local and regional self-government instrument is nevertheless one of the possible instruments for achieving effective protection of minorities.”181
However, Recommendation 1201 remains a non-binding document and a possibility for national minorities to have local or autonomous authorities, as provided for in Article 11 of Recommendation 1201, is not included in the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM). Article 15 of the FCNM only secures “the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.” But this Article is “the question of personal autonomy and not of local autonomy.”182
Furthermore, Recommendation 1201 was supposed to serve as an additional protocol to the ECHR. If it had been adopted as an additional protocol, the beneficiaries of the rights laid down in Recommendation 1201 would have been enabled to apply to the European Court of Human Rights for redress in case a State Party would violate these rights. The rights enshrined in Recommendation 1201 are thus, upon adoption as an additional protocol to the ECHR, justifiable, which is a trait that is lacking in the FCNM.183 National minorities in the Member States of the Council of Europe, therefore, cannot rely on their rights inserted in the FCNM before the European Court of Human Rights, but have to put their faith in the ECHR when seeking to protect their rights. However, previous case laws
179 European Convention for the Protection of Human Rights and Fundamental Freedoms, (Rome, 4 November 1950), 213 UNTS 222, ETS 5, entered into force 3 September 1953, as amended by Protocols 2 (ETS 44), 3 (ETS 45), 5 (ETS 55), 8 (ETS 118), and 11 (ETS 155) which entered into force 18 May 1954, 21 September 1970, 20 December 1971, 01 January 1990 and 11 May 1994, respectively. 180 Venice Commission 1996, p. 9. 181 Council of Europe Parliamentary Assembly Doc. 8943, Rights of National Minorities; the opinion of the Committee on Migration, Refugees and Demography, rapporteur: Mr Tabajdi, approved by the Committee on 23 January 2001, para. 30, available at:
Nevertheless, Recommendation 1201 does have some significance inasmuch as it is forming a part of the commitments which candidates for membership must pledge to undertake.186 Azerbaijan has been a Member State of the Council of Europe since 2001 and is therefore expected to respect the rights set forth in Recommendation 1201. The right of Armenians in Azerbaijan to enjoy autonomy is in this way slightly secured, at least in theory, because it is entirely up to Azerbaijan to determine how it wishes to implement Recommendation 1201 now that it has become a member of the Council of Europe.
From the aforementioned it can be concluded that there is no positive right in international law that adequately guarantees the Armenians in Azerbaijan the right to internal self-determination. Karabakh Armenians’ right to internal self-determination therefore must be established and secured through an international agreement between Armenia and Azerbaijan. Hence, Karabakh Armenians may, despite being an ethnic minority, obtain a right to internal self-determination, but since such an international agreement has not been concluded between Armenia and Azerbaijan, the Karabakh Armenians currently do not possess a right to internal self-determination.
4.5 The difficulties of establishing an autonomous Nagorno-Karabakh Armenia and Azerbaijan have to create a right to autonomy for the inhabitants of Nagorno-Karabakh since this is the only way for the Karabakh Armenians to obtain a right to internal self-determination. To this end, peace negotiations between the two States are being held under the auspices of the OSCE Minsk Group, but establishing an autonomous Nagorno-Karabakh proves to be rather an intricate matter.
184 X. v/ the Netherlands, Application No. 7230/75, European Commission of Human Rights, decision of 4 October 1976, DR 7, p. 111, para. 2; X. v/ Federal Republic of Germany, Application No. 6742/74, European Commission of Human Rights, decision of 10 July 1975, DR 3, p. 103, para. 3. 185 Article 1 of the ECHR entitles “everyone” to the rights enshrined in the Convention. These rights are to be enjoyed without discrimination on any ground according to Article 14 ECHR. Impeding members of a minority from enjoying their particular lifestyle may constitute a breach of Article 8 ECHR provided that the State Party concerned has conducted contrary to its obligation under Article 14 of the ECHR; G. and E. v/ Norway, Application Nos. 9278/81 & 9415/81 (joined), European Commission of Human Rights, decision of 3 October 1983, DR 35, p. 35, para. 1 and p. 38, para. 7. 186 See supra note 183, para. 31. 49
By restoring to military force, Azerbaijan only managed to escalate an already tense situation and stirred up more revulsion and animosity between the two communities. Because of the outcome of the Nagorno-Karabakh war, the conflicting parties cannot discuss in detail on the form and scope of Nagorno-Karabakh’s autonomy. The peace negotiations, first and foremost, focus on the complete withdrawal of Armenian troops from Azeri territory. Only then will it focus on Karabakh Armenian’s right to internal self-determination.187 This is demanded by the Azerbaijani side, but turns to be problematic for the Karabakh Armenians, who fear that the withdrawal of their troops from territories surrounding Nagorno-Karabakh will remove Azerbaijan’s incentive to further negotiate on Nagorno-Karabakh’s future status.188 In addition, the (Karabakh) Armenian side wants some safety guarantees for Nagorno-Karabakh (and possibly the Armenian province of Siunik) before agreeing to pull out their troops from the occupied areas. That is not only to secure their bargaining position with regard to Nagorno-Karabakh,189 but also because of the fact that the Republic of Azerbaijan has territorial claims to Armenian land, including the Armenian province of Siunik (in Azeri: Zangezur), Lake Sevan (in Azeri: Geycha) and even Yerevan (Armenia’s capital).190
187 According to the 2009 Basic Principles, which is presented by the OSCE Minsk Group and accepted by Armenia and Azerbaijan, the conflict settlement has to be built on the basis of the (Helsinki Final Act) principles of non-use of force, territorial integrity and self-determination, while the peace talks will be divided into six phases; 1) return of the territories surrounding Nagorno-Karabakh to Azerbaijani control; 2) an interim status for Nagorno-Karabakh providing guarantees for security and self-governance; 3) a corridor linking Armenia to Nagorno-Karabakh; 4) future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will; 5) the right of all internally displaced persons and refugees to return to their former places of residence; and 6) international security guarantees that would include a peacekeeping operation. The first phase of the peace negotiations has to be finalized before it can move on to the next phase; Joint Statement on the Nagorno-Karabakh Conflict by U.S. President Obama, Russian President Medvedev, and French President Sarkozy at the L’Aquila Summit of the Eight, July 10, 2009, available at:
Furthermore, both parties take a “maximalist approach” to the peace negotiations. Azerbaijan, for instance, has ensured that independence for Nagorno-Karabakh is precluded from the list of options discussed during the peace talks and, as of 1997, has even barred Karabakh Armenians from the negotiation table.191 It also has not ruled out renewed military intervention if necessary to regain its lost territories.192 Armenia, on the other hand, wants to ensure that independence remains an option for the Karabakh Armenians. For this reason, it rejected a previous proposal of the OSCE, which set up the guidelines for the peace negotiations that would confer on Nagorno-Karabakh the “highest degree of self-rule within Azerbaijan.”193 This would, according to Armenia, “predetermine the status of Nagorno-Karabakh”, whereas it was supposed to be negotiated between the conflicting parties.194
The basic explanation for the failure of both parties to come to an agreement is the fact that Armenians have much to lose and many things to consider when accepting internal self- determination. Once the parties have sealed the fate of the Karabakh Armenians in an international agreement and Azerbaijan is enabled to exert full control over the entire region, the Armenians will only have the principle of pacta sunt servanda to rely on for the compliance of the agreement by Azerbaijan. There will be no special international organisation to supervise the implementation of the agreement or have the authority to sanction Azerbaijan with secession in case of non-compliance, though such a control mechanism did previously exist during the League of Nations’ era with regard
Nakhichevan is a historical achievement, we have to defend and sustain it. The autonomy of Nakhichevan is a very serious factor that can help us to take back our other territories…it serves this goal”; L. Chorbajian, The Making of Nagorno-Karabagh: From Secession to Republic, Basingstokem: Palgrave 2001, pp. 207-208. 191 This has hampered the peace negotiations and recently the Parliamentary Assembly of the Council of Europe has called on the Azeri authorities to establish their communications with the leadership of Nagorno- Karabakh; Council of Europe Parliamentary Assembly, Resolution 1416 (2005), The Conflict over the Nagorno- Karabakh Region dealt with by the OSCE Minsk Conference, adopted by the Assembly on 25 January 2005 (First part-session, 2nd Sitting), para. 9. Furthermore, Raić has argued that the obligation of States to respect the right of self-determination seems to entail “a duty for States to negotiate in good faith with the relevant people (…) so as to reach an agreement on the necessary level of protection within the framework of self- determination (…)”; Raić 2002, pp. 283-284. 192 See the views of the President of Azerbaijan, Ilham Aliyev, with regard to the use of force: “Our largest compromise is our commitment to the peace talks. But we have to create a new situation using these possibilities. I want to reaffirm that the strengthening of the military potential is not leading to the automatic restoration of war. This is the very last option. We have to be ready for it. Every country must be ready, including our country which is in the state of war with its occupied lands. At the same time, I am convinced that we will be able to exert a strong pressure on Armenia by using all political, economic, diplomatic and regional factors. This is already felt by anyone”; Official website of the President of Azerbaijan, Ilham Aliyev:
Although the ruling of the ICJ is binding upon the conflicting parties197 and the parties are expected to comply with the Court’s decision,198 the Court does not have the competence to enforce its own decision. Ironically, it is the UNSC that is given the competence to enforce the Court’s rulings. Article 94 (2) of the UN Charter provides that, in case of non-compliance of the Court’s judgement, the creditor State may approach the UNSC, which then “may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”199 This discretionary power of the UNSC has to date never been used.200 That is because Article 94 (2) has to be read in conjunction with other provisions of the UN Charter, in particular that of Article 24, which states that the UNSC’s primary responsibility is the maintenance of international peace and security. Hence, the UNSC will only use its discretion under Article 94 (2) if the non-compliance of the Court’s decision constitutes an imminent threat to the peace.201
If, in a possible future scenario, Azerbaijan would defy the Court’s judgement with regard to the compliance of its agreement with Armenia, it would unlikely threaten the international peace since there will probably be no military reaction on Armenia’s part because a new war could be devastating for Armenia considering that Azerbaijan has never concealed the fact that it is using its oil revenues to strengthen its military force,202 while Armenia’s economy has suffered immensely due to Turkey’s and Azerbaijan continued blockade of the country.203 Armenians then would have to try to exert political pressure on Azerbaijan in order to achieve compliance, but this will also be quite challenging because Azerbaijan is an oil-rich country and therefore has more political and economic power compared to Armenia and is easily capable of resisting such pressure from Armenia.204
195 Musgrave 1997, p. 37. 196 UN Doc. A/RES/1497(XV), 31 October 1960; UN Doc. A/Res/1661 (XVI), 28 November 1961. 197 Statute of the International Court of Justice, (San Francisco, 26 June 1945), 3 Bevans 1179, 59 Stat. 1055, T.S. No. 993, entered into force 24 October 1945, Article 59. 198 Article 94 (1) of the UN Charter. 199 Article 94 (2) of the UN Charter. 200 A.P. Llamzon, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’, The European Journal of International Law (2007), Vol. 18, No. 5, p. 847. 201 Ibid., p. 848. 202 Croissant 1998, p. 133. 203 Human Rights Watch, Azerbaijan: 7 Years of Conflict in Nagorno-Karabakh, December 1994, pp. 74-77. 204 Croissant 1998, p. 132. 52
Thus, the Armenians must have enough confidence in Azerbaijan for such an international agreement to ever come into existence between the two countries. While Azerbaijan’s threats of a possible new war, its refusal to negotiate with the future leaders of an autonomous Nagorno-Karabakh and its anti-Armenian policy in international organisations have not strengthen Armenia’s confidence in Azerbaijan, there is still more issues for the Armenians to consider. For instance, Azerbaijan has time and again made it clear that it is willing to settle for internal self-determination, but there is no indication that it will sufficiently respect the internal self-determination of the Karabakh Armenians. Formally, the autonomous status of Nagorno-Karabakh remains abolished in Azerbaijan,205 and there are Azeri politicians who even seem to resist the idea of an autonomous status for Nagorno- Karabakh,206 but most importantly, Azerbaijan does currently not seem to respect the rights of some 20.000 to 30.000 Armenians who are still living inside Azerbaijan, but outside the region taken over by the Nagorno-Karabakh Republic (NKR).207
A report of the European Commission against Racism and Intolerance (ECRI) has noted the following with regard to these Armenians in Azerbaijan:
“Armenians are often referred to as the most vulnerable group in Azerbaijan in the field of racism and racial discrimination. The issue is sufficiently serious for Armenians to sometimes be described as “second-class citizens” in Azerbaijan.”208
The report mentions the conflict over Nagorno-Karabakh as the main cause for the discrimination against Armenians, but also stresses that:
“Another problem is the oral and written inflammatory speech on the conflict over Nagorno- Karabakh. These statements do not only target Armenia and Armenian citizens. It also often portrays Armenians living in Azerbaijan as enemies and traitors. ECRI is concerned to learn that some media, and particularly certain TV channels, some members of the general public, some politicians and even
205 The Armenia-Azerbaijan Conflict, Courtesy of the Ministry of Foreign Affairs of the Republic of Azerbaijan Journal “Diplomatiya Alуѳmi” (“World of Diplomacy”), 2009, p. 12, available at:
And the next statement is given with regard to Azerbaijan’s efforts to protect its Armenian minority:
“While ECRI continues to receive alarming information concerning racism and racial discrimination against this group of persons, the Azerbaijani authorities have not demonstrated their will to tackle this problem. On the contrary, the general attitude among national and local authorities is rather to purely and simply deny that Armenians are confronted with problems in Azerbaijan.”210
Considering the abovementioned, it may be concluded that Azerbaijan is currently not able or willing to protect the rights of its Armenian minority. Internal self-determination therefore will only diminish the rights of the Karabakh Armenians, which is better secured by the government of the NKR than it is currently within Azerbaijan.211
4.6 Conclusion
There are no binding international documents that confer a right to autonomy on ethnic minorities. Where an ethnic minority is enjoying a right to autonomy, it has been the result of an international agreement between the host State and the kin State and has little to do with the law on self- determination. Such an agreement is only binding upon the two States that are expected to respect the obligations deriving from their agreement.
There are two motives that induce States into signing such an agreement. The first has to do with the territorial integrity of the host State that is threatened by secessionist and irredentist212 claims. By proposing autonomy to the ethnic minority, the host State is aiming to contain the tension between ethnic groups within its territory and prevent it from escalating. When it does escalate, the kin State will likely remain actively involved in the conflict between the host State and its ethnic minority,
209 Ibid., p. 28, para. 110. 210 Ibid., p. 27, para. 107. 211 On this account, Richard Giragosian has noted the following: “Most ironic is the sharp contrast in democracy between the parties. Nagorno-Karabakh holds the strongest democratic credentials, having embarked on its course toward independence only after the endorsement of a national referendum, and holding several separate elections (municipal, parliamentary and presidential) marked by their free and fair conduct, openness and transparency, and notable for pluralistic, multi-party contests. Azerbaijan, on the other hand, offers a significant contrast as every election has been seriously undemocratic and flowed by various voting irregularities and violations. Even Armenia, which has a more impressive democratic record than the autocratic Azerbaijan, cannot meet Nagorno-Karabakh’s democratic gains and accomplishments”; Giragosian 2000, p. 6. 212 Irredentism takes place when an ethnic group resides in more than one State and seeks to secede from the host State(s) in order to join the kin State; Gudeleviciute 2005, p. 69. 54 further threatening the territorial integrity of the host State and disturbing the international peace and stability, which is the second motive to endorse autonomy for ethnic minorities in conflict situations.
An adequate minority protection will contribute to peace and stability within and between States. This has been recognised by different international organisations and has prompted the Council of Europe and the OSCE to broaden minority rights, so as to include autonomy as a possible method to protect ethnic minorities. However, these attempts have not compelled States to acknowledge a right to autonomy for their ethnic minorities, since autonomy has only been presented by the OSCE and the Council of Europe as an option, but not as the norm for minority protection.
Hence, autonomy for Karabakh Armenians has to be secured through an international arrangement between Armenia and Azerbaijan. As an ethnic minority, Karabakh Armenians thus are able to obtain a right to internal self-determination, but because no such agreement exists between Armenia and Azerbaijan, the Karabakh Armenians do not yet possess a legal right to internal self-determination.
Internal self-determination may, however, not be the solution for the Nagorno-Karabakh conflict for the reason that Azerbaijan is currently unable or unwilling to adequately protect and respect the rights of its Armenian minority and this may reflect its future conduct with regard to Karabakh Armenians’ right to internal self-determination. Azerbaijan’s conduct towards its ethnic minority and its handling of the conflict is only making the Karabakh Armenians hesitate to accept internal self- determination. Especially because there are no international bodies that will look after the compliance of the international agreement by the host State and possibly sanction the host State in case of non-compliance.
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5. External self-determination
Because the Nagorno-Karabakh war has made it more complicated for Armenia and Azerbaijan to secure the internal self-determination rights of the Karabakh Armenians in an international agreement between the two countries, it might be worthwhile to learn whether there are possibilities for the Karabakh Armenians to enjoy external self-determination. Recently, the international community witnessed the unilateral secession of Kosovo from Serbia. Kosovo is, since its unilateral declaration of independence, recognized by almost half of the members of the UN, which is quite remarkable considering the fact that Kosovar Albanians are an ethnic minority, and ethnic minorities are not considered to be lawful holders of the right to external self-determination. To find out what Kosovo’s independence could entail for the Karabakh Armenians, the Advisory Opinion of the ICJ with regard to Kosovo’s unilateral declaration of independence will be further examined in this Chapter, and its rationale, as summarized by some commentators, will be applied to the conflict over Nagorno-Karabakh.
5.1 The ICJ Advisory Opinion on Kosovo’s unilateral declaration of independence
After Kosovo’s unilateral declaration of independence, Serbia initiated a request for an Advisory Opinion in the General Assembly in the hope that a ruling against Kosovo would dissuade other States from recognizing Kosovo’s independence. The question asked by the General Assembly was whether the unilateral declaration of independence by the Provisional Institutions of Self- Government of Kosovo was in accordance with international law.213 For the purpose of this thesis, it will be sufficient to assess the statements made by the ICJ with regard to general international law.
Although the ICJ in the Kosovo Advisory Opinion did not mention whether ethnic minorities, and in particular the Kosovar Albanians, have a right to unilateral secession,214 it does observe that the scope of the principle of territorial integrity is only “confined to the sphere of relations between States.”215 Thus, it implies that non-state actors, such as secessionist movements, are exempted from the obligation to respect the territorial integrity of sovereign States. This is indeed the case with regard to the aforementioned Article 2 (4) of the UN Charter which calls upon “All Members” to refrain from using force against the territorial integrity of other States. Since members under the UN
213 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion 2010 ICJ general List No. 141 (July 22), p. 19, para. 49. [hereinafter “ICJ Kosovo Advisory Opinion”]. 214 Ibid., p. 39, paras. 82-83. 215 Ibid, p. 38, para. 80. 56
Charter may only consist of States,216 the UN Charter indicates that only States are confined by the ban on the use of force. Thus, the principle of territorial integrity, as enshrined in the UN Charter, only covers interstate, but not intrastate, relations.217 Likewise, the principle of territorial integrity is merely covering interstate relations in the Helsinki Final Act.218
Yet, it must be emphasized that, in dealing with minority rights, other international documents have broadened the scope of the principle of territorial integrity so as to include the applicability of it within a single State, meaning that even national minorities, and thus non-state actors, are to some extent ought to respect the principle of territorial integrity.219 But the extension of territorial integrity to intrastate relations is only covered in regional European law, which was not sufficiently examined by the ICJ in the Kosovo Advisory Opinion.220 In this regard, a reference can be made to Part IV, paragraph 37 of the 1990 Copenhagen Document, which stipulates that members of national minorities do not possess a “right to engage in any activity or perform any action in contravention of (…) the principle of territorial integrity of States”, while the recipients of Article 21 of the Framework Convention for the Protection of National Minorities includes national minorities as well.221 This Article provides that:
“Nothing in the present framework Convention shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of States.”
By making the principle of territorial integrity applicable within a single State, the aforesaid provisions seem to indicate that the rights inserted in the said documents do not embrace such a thing as secession222 and the fact that sovereign States do have the right to use all lawful means, including the use of force, to defend the unity and territorial integrity of the State against secession223 further proves to some that international law clearly disfavours secession, even though
216 Article 4 of the UN Charter. 217 Gudeleviciute 2005, p. 50. 218 Pavković & Radan 2008, p. 61, note 27. 219 Ibid. 220 B. Arp, ‘ICJ Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo and the International Protection of Minorities’, German Law Journal (2010), Vol. 11, No. 7-8, pp. 850-851. 221 T. Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’, Leiden Journal of International Law (2011), Vol. 24, No. 1, p. 84. 222 Ibid., pp. 84-85. 223 See e.g. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), (Geneva, 8 June 1977), 1125 UNTS 609, entered into force 7 December 1978, Article 3 (1); Rome Statute of the International Criminal Court, (Rome, 17 July 1998), 57 it does not explicitly forbid it.224 But because a prohibition against secession is lacking, others argue that, in theory, this denotes that members of the international community may recognize the successful secession of a minority, whose rights are normally derived from Article 27 ICCPR, except when the secession has been the result of the illegal use of force by a third State, such as the current annexation of northern Cyprus by Turkey.225
This brings up the next statement of the ICJ in the Kosovo Advisory Opinion. The Court held that “general international law contains no applicable prohibition of declarations of independence.”226 It observed that state practice indicates that there is no prohibition emerging in contemporary international law with regard to unilateral declarations of independence that have been promulgated by an entity other than a non-self-governing or occupied territory, which alone have been accorded a right to external self-determination under international law.227 Thus, an ethnic minority which is not entitled to a right to external self-determination is not prevented from declaring its independence from a sovereign State by customary international law. However, some authors have commented on this by stressing that the lack of a prohibition against unilateral secession does not necessarily mean that there is a right for minorities to unilaterally secede from a sovereign State.228 The Court further pointed to previous and unrecognized unilateral declarations of independence to elucidate that the illegality attached to these unilateral declarations of independence did not stem “from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).”229
The unlawful use of force, which the Court is speaking of, could adversely affect the validity of a unilateral declaration of independence for the reason that it may lead to territorial acquisition which is condemned in international law through the principle of non-recognition. This admonition against such an act of aggression is stipulated in draft Article 18 of the International Law Commission (ILC), according to which "every State has the duty to refrain from recognizing any territorial acquisition
2187 UNTS 90, entered into force 1 July 2002, Article 8 (3). Although sovereign States are entitled to defend their territorial integrity by all legitimate means, including the use of force, it must be recalled that a host State that is trying to avert an illegal secessionist attempt always has to abide by rules of international law, human rights and humanitarian law when doing so; Raič 2002, pp. 369-370. 224 Christakis 2011, pp. 79-80 and pp. 83-84. 225 T.M. Franck, ‘Postmodern Tribalism and the Right to Secession’, in: C. Brölmann (ed.), Peoples and Minorities in International Law, Dordrecht: Martinus Nijhoff Publishers 1993, p. 12. 226 ICJ Kosovo Advisory Opinion, p. 39, para. 84. 227 Ibid., p. 37, para. 79. 228 Christakis 2011, p. 79 and pp. 83-84. 229 ICJ Kosovo Advisory Opinion, pp. 38-39, para. 81. 58 made by another State through force or the threat of force." The words “by another State” were deliberately inserted in the Article to preclude the non-recognition of a new State emerging from secession.230 Hence, a distinction was made between forcible territorial adjustments instigated by military invasions on the one hand and those by a secessionist act of a part of a State’s population on the other, with only the former being classified as illegal.231
The rationale of draft Article 18 can be found in Article 41 of the ILC Articles on State Responsibility.232 Article 41 (2) obliges States not to recognize a situation created by a serious breach of an obligation arising under a peremptory norm of general international law. In this regard, it must be noted that peremptory norms of general international law include the prohibitions against slavery, the slave trade, genocide, racial discrimination, apartheid and the prohibition of aggression, i.e. the unlawful use of force.233 With respect to the latter, it should be mentioned that an act of aggression always requires an intentional violation of the ban on the use of force, and this violation must occur on a large scale.234 In addition, the UNSC is expected to condemn an act of aggression by urging all States not to recognise the situation that has resulted from the act of aggression, thus it has to apply the non-recognition principle.235
An example of such a situation in which the non-recognition principle was applied by the UNSC is that of the ongoing Turkish annexation of Cyprus. Though initially Turkey declared the occupied area to be a ‘Turkish Federate State’ in 1975, the occupied area was eventually allowed by Turkey to proclaim the ‘Turkish Republic of Northern Cyprus’ in 1983. This unilateral declaration of independence by the Turkish Cypriots is condemned by the UNSC Resolution 541 (1983), which calls upon “all States not to recognize any Cypriot State other than the Republic of Cyprus.”236 Similarly, the non-recognition principle was invoked in UNSC Resolution 662 (1990), which was adopted after Iraq invaded and conquered the whole of Kuwait and subsequently declared the annexation of
230 Yearbook of the ILC (1949), Volume I, Summary Records and Documents of the First Session including the report of the Commission to the General Assembly, UN Doc. A/CN.4/SR.14, p. 113, para. 131. 231 Written Statement of Germany, p. 30. 232 Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83, UN GAOR, 56th Sess., 85th plen. mtg., UN Doc. A/56/49(Vol. I) (2001), p. 499. 233 Yearbook of the ILC (2001), Volume II, Part 2, Report of the Commission to the General Assembly on the work of its Fifty-third Session, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2), pp. 112-113, para. 4, [hereinafter “ILC Yearbook 2001”]. 234 Ibid., p. 113, para. 8. 235 Ibid., p. 113, paras. 8-9, and p. 114, para. 7. 236 The Situation in Cyprus, SC Res. 541, UN SCOR, 38th Sess., 2500th mtg., UN Doc. S/INF/39 (1983), p. 15, para. 7. 59
Kuwait as a “comprehensive and eternal merger.”237 UNSC Resolution 662 called upon all States not to recognise the “annexation of Kuwait by Iraq” since the annexation was considered to be “null and void” for having “no legal validity.”238
From the Court’s reasoning in the Kosovo Advisory Opinion it can be concluded that there is no general prohibition in international law against unilateral declarations of independence, even not when it has been declared by an ethnic minority which does not have a right to external self- determination. Unilateral declarations of independence of an ethnic minority may even be legal if not forming a violation of a jus cogens norm, in particular the ban on the use of force. Since the objective of these declarations is to permanently establish a new State at the expense of the territory of an already existing sovereign State, some observers assert that the Court’s judgement implicitly entails the applicability of Article 41(2) of the ILC Articles on State Responsibility.239 This means that members of the international community are free to determine whether they want to recognise the unilateral declaration of independence, and thus statehood, of any entity emerging in compliance with jus cogens norms.240 In this way, Karabakh Armenians may, as an ethnic minority which does not have a right to external self-determination, still acquire internationally recognized statehood.
5.2 Nagorno-Karabakh’s independence in connection to the ban on the use of force
As stated in the Kosovo Advisory Opinion, a unilateral declaration of independence will be declared illegal if it is connected to the unlawful use of force or another serious violation of a jus cogens norm. Because Nagorno-Karabakh’s independence was ensued by a war in which Karabakh Armenians conquered Azeri territory outside their proclaimed NKR, it should be determined whether Nagorno- Karabakh’s unilateral declaration of independence constitutes a contravention of the ban on the use of force.
237 The Situation between Iraq and Kuwait, SC Res. 662, UN SCOR, 45th Sess., 2934th mtg., UN Doc. S/INF/46 (1990), p. 20, preamble. 238 Ibid., para. 1. 239 J. Vidmar, ‘The Kosovo Opinion and General International Law: How Far-Reaching and Controversial is the ICJ's Reasoning?’, (11 October 2010), The Hague Justice Portal, p. 3, available at:
An exception to the ban on the use of force is the act of self-defence.241 Thus, for the occupations to be recognised as an act of aggression there must be the intent on NKR’s side to violate the ban on the use of force for other reasons than self-defence.242 Such impression is of course not given in the unilateral declaration of independence, which mentions that NKR is “striving for normalization of relations between the Armenian and Azerbaijani peoples”,243 but then continues stating that the NKR is “willing to protect the NKR population from aggression and threat of physical extermination.”244 The latter sentence refers to the exception to the ban on the use of force.
When examining the events of the war that was started by Azerbaijan, one finds out that the occupation of territories outside of the NKR were the reaction to, and thus the consequences of, Azerbaijan’s decision to seek a military solution to the problem. In this regard, it can be mentioned that the Karabakh Armenian conquest of Azeri-Turk inhabited cities of Lachin [situated outside of NKR] and Khojaly [situated in NKR] were deemed necessary for the survival of the Armenians in NKR since the cities of Lachin and Khojaly were used by the Azeris as their main base for military operations against Nagorno-Karabakh. Other such cities were Agdam and Fizuli [both situated outside of NKR], which were also conquered by the Karabakh Armenians for the same reason.245 It was from these places where Azeris daily and constantly launched heavy missile and rocket attacks on Stepanakert and other Armenian villages surrounding it. These rocket attacks indiscriminately targeted civilian areas and destroyed essential facilities like hospitals, schools or homes and further resulted into unnecessary and increasing numbers of casualties and injuries among the civilian population of Nagorno-Karabakh, and therefore the Azeri military stronghold in these cities had to be eliminated.246
Moreover, the occupied territories on the west and south of NKR were the consequences of Azerbaijan’s decision to impose a blockade on Nagorno-Karabakh that had completely isolated Nagorno-Karabakh from the outside world and made it impossible for the Armenians in Nagorno- Karabakh to receive essential supplies for long-term survival, such as water, fuel, food and medical supplies.247 With Azerbaijan’s blockade and besieging of NKR, which is almost completely dependent
241 Article 51 of the UN Charter. 242 ILC Yearbook 2001, p. 113, para. 8. 243 See Annex 2. 244 Ibid. 245 Human Rights Watch, Bloodshed in the Caucasus: Escalation of the Armed Conflict in Nagorno-Karabakh, September 1992, p. 33. 246 Cox & Eibner 1993, see Chapter on ‘The Post-Soviet Conflict (The Armenian Counter-Attack)’, online version available at
Hence, the occupation of the surrounding territories of the NKR was crucial for the Karabakh Armenian survival. Without it, the war would have lasted longer and it would have ended with Nagorno-Karabakh’s annihilation. It is mainly because of Azerbaijan’s hostile attitude towards the Armenian nation and its continued threats which has made the Karabakh Armenians reluctant to easily give up all the occupied Azeri territories (though the Karabakh Armenians do not perceive any of these territories as ‘occupied’ because they were all part of the original territory of Nagorno- Karabakh, but were forcibly cut off from the NKAO by Soviet Azerbaijan in 1923).249
248 Ibid., see Chapter on ‘The Post-Soviet Conflict (The Armenian Counter-Attack)’. 249 See the views of Acting Foreign Minister of the Nagorno-Karabakh Republic, Vassily Atajanian, on the occupied territories: “Usually, factual borders are established as a demarcation line after military activities. Today’s borders of the NKR, as I have already noted, are the result of Nagorno-Karabakh’s rebuffing the Azerbaijani aggression. In the historical aspect, the post-war territory of Nagorno-Karabakh is a part of ancient Artsakh [Nagorno-Karabakh]. In the defence-strategic context, the territories, which we took under our own control during the war imposed on us, make a security belt. In the legal context, the territories and borders of Nagorno-Karabakh have never been determined, taking into account the historical, national, and cultural- religious aspects. During the Soviet period, unfortunately, they were arbitrarily fixed by Soviet Azerbaijan, in the lesser territory of Artsakh, so that the autonomous district became an enclave within Azerbaijan. There is no return to the past either in the issue of status or in the issue of borders. The NKR borders should ensure the Republic's security in all the fields.”; Official website of Ministry of Foreign Affairs of Nagorno-Karabakh:
In addition to the above, it must also be mentioned that during Karabakh Armenian’s first major military counter-attack, which took place against the city of Khojaly (February 1992), the Azeris were given an ultimatum to cease their missile attacks from Khojaly or face an Armenian offensive against the city. However, the town was attacked by Karabakh Armenians some two weeks after their ultimatum and repeated warnings about the planned military operation because the Azeris continued launching their missiles from Khojaly.250 This happened during the early beginnings of the war and demonstrates that Karabakh Armenians were not eager to escalate the conflict with Azerbaijan.
The fact that Azerbaijan rejected several peace proposals in 1993, while Armenia accepted them further verifies the fact that the Armenians were willing to sign a cease fire and end the further conquest of Azerbaijani territory. One of these peace proposals demanded the withdrawal of Armenian troops from the occupied territories in return for the lifting of the energy embargo imposed by Azerbaijan on Armenia. The latter condition offended Azerbaijan since it felt that it treated Azerbaijan as “the defeated side,”251 and because of that the peace proposal was declined by Azerbaijan, which of course prolonged the war. It can be deduced from the above given reasons that the NKR occupied Azerbaijan’s territory for self-defence reasons and not because it intended to initiate an aggressive war against Azerbaijan for the purpose of extending its territory.
In addition to the above, it should also be mentioned that somewhere in 1993, Armenian troops have been aiding the Karabakh Armenian forces in their efforts to repel Azeri troops and turned the conflict into an international war.252 Armenian intervention in the conflict could harm the Karabakh Armenians’ attempt to achieve internationally recognized statehood if its intervention is perceived as annexation. In this respect, it has been the Council of Europe which, in 2005, has reacted more harshly on Armenia’s involvement in the conflict by stressing that parts of Azeri territory remain “occupied by Armenian and separatist forces” and further mentions that the armed conflict has resulted into a “de facto annexation.”253 Armenia’s participation has also been mentioned by UNGA Resolution 62/243 (2008), which demands the “withdrawal of all Armenian forces from all occupied territories of the Republic of Azerbaijan.”254 The UNSC, though acknowledging that the conflict is
website the Office of the Nagorno-Karabakh Republic in the United States of America:
Furthermore, the UNSC has never adopted a resolution in which the international community is requested not to recognize Nagorno-Karabakh’s unilateral declaration of independence. Such a UNSC resolution would certainly diminish NKR’s chances of ever obtaining internationally recognized statehood since all UN Member States are bound to comply with UNSC decisions.258 As stated above, the non-recognition principle, if applied by the UNSC, usually discerns a lawful use of force from an unlawful one. Even though the non-recognition principle has not been applied to the Azeri-Armenian conflict, the UNSC resolutions are not completely neutral to the conflict though; all four resolutions reaffirm the territorial integrity and sovereignty of Azerbaijan;259 refer to NKR as the “Nagorno- Karabakh region of the Azerbaijani Republic”;260 and condemn the seizure of territories outside of the NKR, partly because these occupations would further hamper the efforts of the OSCE Minsk Group in finding a peaceful solution to the conflict.261
With regard to the latter, the UNSC has expressed its support for the OSCE Minsk Group’s exertion, though it must be noted that the Minsk Group has determined in its current proposal, which is accepted by Armenia as well as Azerbaijan, that the final legal status of Nagorno-Karabakh should be decided through “a legally binding expression of will.”262 This sentence does not seem to exclude the possibility of independence, which is why Armenia has consented to the proposal, while it rejected a
255 UN Doc. S/RES/822, 30 April 1993, preamble; UN Doc. S/RES/853, 29 July 1993, preamble; UN Doc. S/RES/874, 14 October 1993, preamble; UN Doc. S/RES/884, 12 November 1993, preamble. 256 UN Doc. S/RES/822, 30 April 1993, preamble and para. 1; UN Doc. S/RES/853, 29 July 1993, para. 3; UN Doc. S/RES/874, 14 October 1993, para 5; UN Doc. S/RES/884, 12 November 1993, para. 4. 257 UN Doc. S/RES/662, 9 August 1990, preamble and para. 1. 258 Article 25 of the UN Charter. 259 UN Doc. S/RES/822, 30 April 1993, preamble; UN Doc. S/RES/853, 29 July 1993, preamble; UN Doc. S/RES/874, 14 October 1993, preamble; UN Doc. S/RES/884, 12 November 1993, preamble. 260 UN Doc. S/Res/853, 29 July 1993, para. 9; UN Doc. S/Res/884, 12 November 1993, para. 2. 261 UN Doc. S/RES/822, 30 April 1993, preamble and para. 1; UN Doc. S/RES/853, 29 July 1993, para. 6. 262 Joint Statement on the Nagorno-Karabakh Conflict by U.S. President Obama, Russian President Medvedev, and French President Sarkozy at the L’Aquila Summit of the Eight, July 10, 2009, available at:
Moreover, the peace process that is monitored by the Minsk Group is based on the Helsinki Final Act’s principle of self-determination and territorial integrity.264 It should be recalled that the principle of territorial integrity, as enshrined in the Helsinki Final Act, is interstate related and basically exempt the NKR from respecting the territorial integrity of Azerbaijan. While Azerbaijan is party to international documents that do extend the principle of territorial integrity to non-state actors,265 these documents, however, are not pertinent to the conflict in Nagorno-Karabakh for the above given reason.
Although, as a non-state actor, NKR does not have a duty to honour the territorial integrity of sovereign States, it is, however, restricted in its actions when using force against a State’s territorial integrity by norms of peremptory international law, international humanitarian law and furthermore by decisions of the UNSC.266 In Nagorno-Karabakh’s case, the UNSC has demanded the withdrawal of the “occupying forces” from Azerbaijan’s territory.267 But by its endorsement of the Minsk Group’s peace process, it could be argued that these demands of the UNSC may be set aside if the Minsk Group’s peace proposal entails the readjustment of Azerbaijan’s de jure borders -which is recommended by the (Karabakh) Armenians. However, such a proposal could only be achieved if territorial concessions have been made by the conflicting parties during the peace negotiations guided by the Minsk Group, but the chances of such a scenario seem currently nil given the fact that Azerbaijan has repeatedly emphasized that it is not willing to give up any of the territory it once effectively controlled during the Soviet era.
While the non-recognition principle has never been applied by the UNSC, it has recently been invoked by UNGA Resolution 62/243 (2008) which reaffirms that “no State shall recognize as lawful the situation resulting from the occupation of the territories of the Republic of Azerbaijan.”268
263 Lisbon Document 1996, Doc. S/1/96, OSCE, 3 December 1996, Annex 1. 264 Ibid. 265 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, (Copenhagen, 29 June 1990), 29 ILM 1305 (1990), Part IV, paragraph 37; Framework Convention for the Protection of National Minorities, (Strasbourg, 1 February 1995), ETS 157, entered into force 1 February 1998, Article 21. 266 M. Milanovic, ‘What the Kosovo Advisory Opinion Means for the Rest of the World’, (October 19, 2011), ASIL Proceedings, 2011, p. 8, available at:
Although UNGA resolutions are not binding on States, some claim that they may form part of customary international law when it has been unanimously adopted (opinion juris) and carried out by the Member States (state practice).269 Even if this was the case, it would not make UNGA resolution 62/243 part of customary international law, since only 39 of the Member States voted in favour, while 7 voted against and 100 abstained from voting.270
Notwithstanding the aforesaid UNSC resolutions that favour the territorial integrity of Azerbaijan, it can be concluded from the aforementioned that NKR did not seriously violate the prohibition to use force against the territorial integrity of Azerbaijan. Accordingly NKR’s unilateral declaration of independence cannot be considered unlawful for that reason. In principle, this denotes that the recognition of NKR’s unilateral declaration of independence by members of the international community is in line with their duty under Article 41 (2) ILC Articles on State Responsibility. It must be borne in mind though that such recognition may not extend to the territories situated outside the NKR, since these are not acknowledged as part of the NKR in the unilateral declaration of independence. The territories situated outside the NKR will in that case be regarded as occupied territories- the same goes for NKR’s territories that are currently under Azeri control. Their future status should be determined by the peace negotiations.
The reason why some States have decided to recognize Kosovo, while they are refusing to do the same for other ethnic minorities is because the recognition of a seceding entity is influenced by the following political factors:
(a) the existing State’s own political/security/economic interest with regard to the host State or secessionist unit, and;
(b) the internal minority situation of the existing State that is recognising or refusing to recognise the seceding entity.271
The former reason mainly clarifies Nagorno-Karabakh’s status as a de facto republic, since Azerbaijan’s vast oil reserves have attracted many deals with Western governments, who are believed to “help Azerbaijan achieve diplomatically what it failed to achieve on the battlefield.”272
269 Gudeleviciute 2005, p. 55. 270 The States that voted in favour of the resolution include: Afghanistan, Azerbaijan, Bahrain, Bangladesh, Brunei Darussalam, Cambodia, Colombia, Comoros, Djibouti, Gambia, Georgia, Indonesia, Iraq, Jordan, Kuwait, Libya, Malaysia, Maldives, Moldova, Morocco, Myanmar, Niger, Nigeria, Oman, Pakistan, Qatar, Saudi Arabia, Senegal, Serbia, Sierra Leone, Somalia, Sudan, Turkey, Tuvalu, Uganda, Ukraine, United Arab Emirates, Uzbekistan, Yemen. 271 Summers (ed.) 2011, pp. 391 & 393. 272 Croissant 1998, p. 132. 66
Azerbaijan’s blooming economy is further helping Azerbaijan in finding political support from international organisations. This can also be seen in the recent resolutions adopted by some international organisations. While during the beginning of the conflict, when Azerbaijan had not yet time to exploit its natural resources due to the war it was waging with the Armenians, there were no resolutions adopted by international organisations that were taking a strong stand against Armenia. As stated above, the Council of Europe has done so recently by accusing Armenia of “de facto annexation” and the aforementioned UNGA resolution has even applied the non-recognition principle with regard to the territories under control of NKR.
5.3 Nagorno-Karabakh’s independence in connection to uti possidetis
Earlier in this thesis, it was mentioned that Azerbaijan’s sovereignty over Nagorno-Karabakh continued after the collapse of the Soviet Union because the principle of uti possidetis protected Azerbaijan SSR from internal territorial threats during its secession from the Soviet Union. Proclaiming the independence of the NKR may therefore not seem to be in line with uti possidetis, but this principle is not a jus cogens norm and thus will not impact Nagorno-Karabakh’s unilateral declaration of independence.273 Nonetheless, it is argued by Azerbaijan that Nagorno-Karabakh’s independence is inconsistent to the principle of uti possidetis.274 For this reason, a few words will be devoted to Nagorno-Karabakh’s independence and its relation to the principle of uti possidetis.
In doing so, the relation between the principle of uti possidetis and territorial integrity need to be further highlighted. As clarified by Shaw, the principle of uti possidetis:
“provides the territorial delineation for the process of establishment of a new State by positing, absent of special factors, the continuation of the pre-existing line, whatever provenance that line previously claimed. It is limited both temporally and conceptually to this situation. Once the new State is established, the principle of uti possidetis will give way to the principle of territorial integrity, which provides for the international protection of the new State so created. While it ‘freezes’ the territorial situation during the movement to independence, uti possidetis does not prescribe a territorial boundary which can never be changed. It is not intangible in this sense.”275
273 Summers 2007, pp. 391-392; ILC Yearbook 2001, pp. 112-113, para. 4. 274 The Armenian-Azerbaijan Conflict, Courtesy of the Ministry of Foreign Affairs of the Republic of Azerbaijan Journal “Diplomatiya Alуѳmi” (“World of Diplomacy”), p. 12, available at:
Hence, uti possidetis protects the external boundaries of an entity before it emerges as a sovereign State. Conversely, the principle of territorial integrity starts defending the external borders against third States only after the administrative unit is established as a sovereign State.276 While both principles are designed to preserve the territorial status quo for the sake of stability, there is a slight difference between the two in the sense that uti possidetis is only recommending, but not compelling, territorial entities to adopt the borders designated to them by the previous sovereign. Thus, administrative units are persuaded to negotiate for border adjustments if one of the entities is not willing to adopt its previous borders. Territorial integrity also permits the alteration of external borders when both parties have assented to such measure but, unlike uti possidetis, the exchange of borders is, however, regarded as a “highly exceptional” circumstance. This is because the principle of territorial integrity provides that external borders should not be adjusted as a result of State succession.277 Yet, despite this difference, the principle of uti possidetis is frequently referred to as “the doctrine of the inviolability of inherited territorial frontiers” and it is often employed as if it is the principle of territorial integrity.278
As for its connection to self-determination, which is partially explained in section 3.6, the principle of uti possidetis only prevents ethnic minorities from making claims to a legal right to external self- determination. It does not prohibit those minorities from unilateral secession,279 or as the former President of the ICJ, Rosalyn Higgins, has explained:
“There is nothing in international law that prohibits secession or the formation of new States. The principle of uti possidetis provides that States accept their inherited colonial boundaries. It places no obligation upon minority groups to stay a part of a unit that maltreats them or in which they feel unrepresented. If they do in fact establish an independent State, or join with an existing State, then that new reality is one which, when its permanence can be shown, will in due course be recognised by the international community.”280
Uti possidetis was also applied to the former Yugoslavia upon its dissolution and thus consolidated Serbia’s grip on Kosovo. Yet, this principle was not explained by the ICJ in its Advisory Opinion, but was mentioned, amongst others, by the Netherlands in its written statement where it stressed that,
276 Ibid. 277 Ibid., pp. 328-329. 278 Ibid., pp. 324-325. 279 Franck 1993, p. 20. 280 Written Statement of the Government of Ireland, Concerning Request of United Nations General Assembly for Advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 17 April 2009. p. 6, para. 20. 68 by converting Serbia’s internal borders into new external borders, Kosovo’s boundaries and existence are in line with uti possidetis.281
Before the NKR was declared independent, a referendum was held in the former NKAO and the Shahumian district in which an overwhelming majority of the inhabitants of both units concurred with their inclusion in the NKR.282 The outcome of this referendum was later on recognised in NKR’s declaration of independence,283 and from then on, Shahumian and the former NKAO were formally recognised by the Armenians in both units as part of the NKR. Hence, two de jure administrative units of Azerbaijan have consented to merge and continue their existence as the independent NKR. If taken into account the aforementioned, it can be stated that the secession of Azerbaijan’s Armenian ethnic minority is in compliance with uti possidetis because the external borders of the NKR were once the internal administrative borders of Azerbaijan.284
5.4 Conclusion
Although the ICJ in the Kosovo Advisory Opinion omitted to response to important questions concerning the right to self-determination, it did emphasize that there is no prohibition against unilateral declarations of independence implicit in the principle of territorial integrity. Furthermore, it argued that unilateral declarations of independence are not prohibited by customary international law as long as it does not contravene peremptory norms of international law, especially the ban on the use of force. According to some authors, this statement of the ICJ implicitly entails the applicability of Article 41 (2) of the ILC Articles on State Responsibility, which provides that States are compelled to not recognize a situation that has been created by a serious breach of a peremptory norm of international law. Thus, if an ethnic minority has unilaterally declared its independence without violating a jus cogens norm, the principle of non-recognition, as set out in Article 41 (2) of the ILC Articles on State Responsibility, will not be invoked, meaning that States are free to determine whether they want to recognize the unilateral declaration and thus the statehood of such a territorial entity. In this way, ethnic minorities, who do not have a right to external self- determination under international law, may still successfully create a new State, which is one of the modes of implementation of the right to external self-determination.
281 Written Statement of the Netherlands, p. 8, para. 3.8. 282 See Annex 1. 283 See Annex 2. 284 i.e. without including the regions controlled by NKR after the war. 69
Nagorno-Karabakh’s independence is not connected to the contravention of a jus cogens norm. Although it did use force against Azerbaijan’s territory, it has been demonstrated in this Chapter that there seems to be no intent on Karabakh Armenian’s side to use force for other reasons than self- defence, which is the exception to the ban on the use of force. Neither does NKR’s existence breach the principle of uti possidetis because the territory of the NKR is situated within the internal borders of two de jure administrative units of Azerbaijan and uti possidetis - though not a jus cogens norm- does not prohibit a successful secession.
While in recent years, some international organisations have increased their pressure on Armenia (and NKR), there are currently no compelling reasons to regard the non-recognition principle as applicable to the situation in Nagorno-Karabakh, inter alia because it has not been used by the UNSC. Therefore, the members of the international community are in principle free to recognise the statehood of the NKR. Such recognition will, however, only extend to Azerbaijan’s de jure administrative units of the former NKAO and Shahumian, since these were proclaimed by the Karabakh Armenian authority as the territory of the NKR. Territories situated outside the NKR, but controlled by the NKR, as well as some parts of the NKR controlled by Azerbaijan, will then become subject of negotiation in the peace process guided by the Minsk Group.
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6. Conclusion
When the end of the Soviet Union was nearing, the Karabakh Armenians were preparing to terminate the Soviet Union’s legacy in the Caucasus, i.e., Nagorno-Karabakh’s forced incorporation into Azerbaijan. Their attempts to do so were hampered by the international community that decided to apply the principle of uti possidetis juris to the disintegration of the Soviet Union as if it were the principle of territorial integrity, and hence the borders of the constituent republics of the Soviet Union were acknowledged as new international borders. Nagorno-Karabakh situated within the territory of the constituent republic of Azerbaijan SSR, which meant that the successor State of Azerbaijan SSR, i.e. the Republic of Azerbaijan, would wield power over the region of Nagorno- Karabakh. Thus, the legacy of the Soviet Union would continue, even after its demise.
Uti possidetis juris also had consequences for the rights which the Karabakh Armenians could invoke as citizens of the Republic of Azerbaijan. To appeal to the right of self-determination, the Karabakh Armenians have to be identified as a minority-people, which means that they have to have a collective individuality on the international level. Karabakh Armenians, however, only have such characteristics on the national level, i.e., within Azerbaijan. This marks them as ethnic minorities, which are not entitled to internal or external self-determination under international law. Therefore, Karabakh Armenians can, in principle, only make demands for minority rights. Nonetheless, there are ethnic minorities that are granted regional autonomy by their host State. Their right to autonomy was conferred on them by an international agreement concluded between the host and kin State and thus did not derive from the law of self-determination. Furthermore, there are international instruments that acknowledge the interconnection between minority protection and interstate/intrastate conflicts and as such have attempted to broaden the protection of ethnic minorities by including the right to autonomy. None of these documents, however, obliges States to confer a right of regional autonomy on national minorities, though this is presented as a method which States may choose to protect the rights of their minorities.
As no State is compelled by international law to accord to ethnic minorities a right of regional autonomy, such a right for Karabakh Armenians therefore has to be created in an international agreement between the host State and kin State. The Karabakh Armenians, however, do not yet possess a legal right to internal self-determination, since such an international agreement between Armenia and Azerbaijan is currently lacking. It should however be questioned whether internal self- determination can still be regarded as a viable solution for a conflict that has already escalated like the one between the Karabakh Armenians and Azerbaijan. The anti-Armenian policy (with emphasize
71 on Nakhichevan) and anti-Armenian pogroms in Azerbaijan SSR, “Operation Ring” and the war that was started by Azerbaijan have only increased the resentment between the two communities, which are basically being forced by the international community to co-exist within one single State.
To convince the Karabakh Armenians to withdraw their troops from the ‘safety zone’, which they have created on Azerbaijan’s de jure soil, and to expect Karabakh Armenians to accept self- government within Azerbaijan, Azerbaijan has to prove that it is able and willing to respect Nagorno- Karabakh’s autonomy. This guarantee is of utmost importance for the (Karabakh) Armenians because as soon as they pull out their troops from Azerbaijan’s de jure territory and sign an agreement on Nagorno-Karabakh’s autonomy, they will be left without any effective tools on the international level to enforce the agreement reached with Azerbaijan.
Currently, Nagorno-Karabakh’s autonomous status is still formally revoked by Azerbaijan, there are Azeri politicians that resist the idea of restoring Nagorno-Karabakh’s autonomy and by barring the representatives of Nagorno-Karabakh from the negotiation table, Azerbaijan is not paying any respect to the future autonomous leaders of Nagorno-Karabakh and therefore is already mocking the idea of an autonomous Nagorno-Karabakh. More worrisome is the fact that the Armenians, who are left behind in Azerbaijan’s de facto territory, are being exposed to such a severe form of discrimination that the ECRI has referred to this group of Armenians as “second-class citizens” in Azerbaijan. Moreover, Azerbaijan is refusing to protect its Armenian minority from discrimination and, through its anti-Armenian propaganda, is even inciting intense hatred amongst its citizens towards its own Armenian minority. The latter has only made it more complicated for Karabakh Armenians and Azeris to peacefully co-exist within one single State, more so because it will take a very long time to undo the damage that has been inflicted upon the Armenian-Azeri relation as a result of this extreme anti-Armenian sentiment amongst Azeri citizens.
This all demonstrates that Azerbaijan is neither able nor willing to protect the basic rights of its Armenian minority, which includes the Karabakh Armenians as well. Therefore, it will unlikely be capable of honouring its commitment to a right that is much more intense and more far-reaching, such as the right of regional autonomy. The rights of Karabakh Armenians will certainly worsen if they become a de facto part of Azerbaijan in the near future. Until Azerbaijan has shown serious improvement in its conduct toward its Armenian citizens, it would be irresponsible of the international community to even consider internal self-determination as the solution to the conflict. The reason for Azerbaijan’s failure and unwillingness to secure the human rights of its Armenian minority may perhaps be found in a flaw of the Minsk Group peace process; though external self- determination is not explicitly ruled out in the current peace proposal, it is ignored during the peace
72 talks that are guided by the Minsk Group and because external self-determination is not currently regarded as a possible option to the conflict, Azerbaijan is not given any incentive to alter its attitude towards its Armenian minority.
Considering the aforesaid, it can be concluded that external self-determination is currently the only way to ensure the basic human rights and the self-determination of the Karabakh Armenians. Although Karabakh Armenians are, as ethnic minorities, not granted a right to external self- determination, they are not prohibited by international law from enjoying external self- determination, just as they are not prohibited from acquiring autonomy as a form of internal self- determination. Such a line of reasoning may be implicit in the ICJ Kosovo Advisory Opinion. Considering that the Kosovar Albanians are an ethnic minority, and thus not entitled to external self- determination, the Court held that their unilateral declaration of independence was not prohibited by international law because it did not contravene a peremptory norm of general international law. It must be borne in mind that declarations of independence are designed to permanently detach a territory from an existing sovereign State and thus formally announce secession. In other words, the Court indirectly stated that ethnic minorities are not prohibited from secession as long as their unilateral declaration of independence, i.e. their secessionist act, is not connected to a breach of a jus cogens norm and in particular that of the ban on the use of force. The Court’s ruling is said to be related to the non-recognition principle of Article 41 (2) of the ILC Articles on State Responsibility, which impels States to not recognize a situation that has been created as a result of the violation of a jus cogens norm. Applying this Article to the rationale of the ICJ Kosovo Advisory Opinion would mean that the non-recognition principle will not be invoked in cases where the secession of an ethnic minority is not connected to a breach of a jus cogens norm. Thus, sovereign States are, in such cases, free to determine whether they want to recognize the secession of an ethnic minority.
While the independence of the NKR is connected to the use of force, which is a jus cogens norm, it is not in any way constituting a contravention of the ban on the use of force for two reasons. First, it has been demonstrated that Karabakh Armenians did not intend to escalate the conflict into a war and thus had no desire to commence and continue an aggressive war to gain territory. The conquest of territory outside the NKR was necessary for self-defence reasons, which is the exception to the ban on the use of force. These conquered territories, which were all once part of Nagorno- Karabakh’s original territory, are still needed to function as a ‘safety-zone’ against hostile Azerbaijan because it has terminated the existence of Nagorno-Karabakh as an enclave within Azerbaijan and therefore has put Azerbaijan in a more disadvantageous position in case of renewed military aggression. Second, the UNSC is expected to invoke the non-recognition principle in cases of a violation of the ban on the use of force, but has omitted to do so in the war between Azerbaijan and 73 the (Karabakh) Armenians. Therefore, members of the international community may recognize Nagorno-Karabakh’s unilateral declaration of independence without breaching their duty under Article 41(2) of the ILC Articles on State Responsibility. Such recognition will not include the territories outside the proclaimed NKR as these were not recognised by the NKR as part of its territory when it declared its independence. Recognition will thus not end the conflict yet, since the future status of the territories outside of NKR, which are in the hands of NKR, and those territories of NKR, which are still under Azeri control, must be settled between an independent Nagorno-Karabakh and Azerbaijan. Nonetheless, the acceptance of the NKR as a sovereign State is made difficult because States are reluctant to recognize Nagorno-Karabakh’s independence due to political reasons.
It should further be recalled that, in 1921-23, Azerbaijan removed a large part of the original territory of Nagorno-Karabakh and got rid of most of the Armenian population from the region that was to be named the NKAO, so as to create of Nagorno-Karabakh an enclave within Azerbaijan. The objective of this move was to prevent the Karabakh Armenians from ever reuniting with Armenia by cutting off Nagorno-Karabakh from the rest of Armenia. Nagorno-Karabakh’s existence as an enclave has therefore become the most artificial internal border of a former union republic of the Soviet Union. As a result hereof, another problem arises if the international community is prepared to recognise Nagorno-Karabakh’s statehood, and that is the realisation that an independent and sovereign Nagorno-Karabakh could only exist if border adjustments are made, mainly at the expense of Azerbaijan’s de jure territory. Taking into account Azerbaijan’s hostile attitude towards Nagorno- Karabakh, it may be stated that Azerbaijan cannot be trusted as the only neighbouring State of an independent Nagorno-Karabakh. If Nagorno-Karabakh is ever to become a sovereign State, it surely cannot exist as an enclave within Azerbaijan.
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Giragosian 2000 R. Giragosian, ‘The Organization for Security and Cooperation in Europe (OSCE) and the Nagorno- Karabakh Conflict: A Compilation for Analyses’ (July 2000), pp. 1-17, available at:
Gudeleviciute 2005 V. Gudeleviciute, ‘Does the Principle of Self-Determination Prevail over the Principle of Territorial Integrity?’, International Journal of Baltic Law (2005), Vol. 2, No. 2, pp. 48-74.
Llamzon 2007 A.P. Llamzon, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’, The European Journal of International Law (2007), Vol. 18, No. 5, pp. 815-852.
Milanovic 2011 M. Milanovic, ‘What the Kosovo Advisory Opinion Means for the Rest of the World’, (October 19, 2011), ASIL Proceedings, 2011, available at:
Musgrave 1997 T.D. Musgrave, Self-Determination and National Minorities, Oxford: Oxford University Press 1997.
Pavković & Radan 2007 A. Pavković & P. Radan, Creating New States: Theory and Practice of Secession, Aldershot: Ashgate 2007.
Pavković & Radan (ed.) 2008 A. Pavković & P. Radan (ed.), On the Way to Statehood: Secession and Globalization, Aldershot: Ashgate 2008.
Pentassuglia 2002 G. Pentassuglia, Minorities in International Law: An Introductory Study, Strasbourg: Council of Europe Publishing 2002.
Raič 2002 D. Raič, Statehood and the Law of Self-Determination, The Hague: Kluwer Law International 2002.
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Suksi (ed.) 1998 M. Suksi (ed.), Autonomy: Applications and Implications, The Hague: Kluwer Law International 1998.
Summers 2007 J. Summers, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations, Leiden: Martinus Nijhoff Publishers 2007.
Summers (ed.) 2011 J. Summers (ed), Kosovo: A precedent? The Declaration of Independence, the Advisory Opinion and Implications for Statehood, Self-Determination and Minority Rights, Leiden: Martinus Nijhoff Publishers 2011.
Tomuschat (ed.) 1993 C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers 1993.
Tricot & Sander 2011 R. Tricot & B. Sander, ‘Recent Developments: The Broader Consequences of the International Court of Justice’s Advisory Opinion on the Unilateral Declaration of Independence in Respect of Kosovo’, Columbia Journal of Transnational Law (2011), Vol. 49, No. 2, pp. 321-363.
Vidmar 2010 J. Vidmar, ‘The Kosovo Opinion and General International Law: How Far-Reaching and Controversial is the ICJ's Reasoning?’, (11 October 2010), The Hague Justice Portal, available at:
Walker 1991 C.J. Walker, Armenia and Karabakh: The Struggle for Unity, London: Minority Rights Publications 1991.
TREATIES
ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms, (Rome, 4 November 1950), 213 UNTS 222, ETS 5, entered into force 3 September 1953, as amended by Protocols 2 (ETS 44), 3 (ETS 45), 5 (ETS 55), 8 (ETS 118), and 11 (ETS 155) which entered into force 18 May 1954, 21 September 1970, 20 December 1971, 01 January 1990 and 11 May 1994, respectively.
FCNM Framework Convention for the Protection of National Minorities, (Strasbourg, 1 February 1995), ETS 157, entered into force 1 February 1998.
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ICCPR International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), UN GAOR , 21th Sess., Supp. No. 16, UN Doc. A/6316 (1966), at 52, (New York, 16 December 1966), 999 UNTS 171, entered into force 23 March 1976.
ICC Statute Rome Statute of the International Criminal Court, (Rome, 17 July 1998), 2187 UNTS 90, entered into force 1 July 2002.
ICJ Statute Statute of the International Court of Justice, (San Francisco, 26 June 1945), 3 Bevans 1179, 59 Stat. 1055, T.S. No. 993, entered into force 24 October 1945.
Protocol II to the Geneva Conventions Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), (Geneva, 8 June 1977), 1125 UNTS 609, entered into force 7 December 1978.
UN Charter Charter of the United Nations, (San Francisco, 26 June 1945), 3 Bevans 1153, 59 Stat. 1031, T.S. No. 993, entered into force 24 October 1945.
Vienna Convention 1963 Vienna Convention on the Law of Treaties, (Vienna, 23 May 1969), 1155 UNTS 331, entered into force 27 January 1980.
JURISPRUDENCE
Canada Supreme Court Reference re Secession of Quebec, [1998] 2 SCR 217 (August 20, 1998).
European Commission of Human Rights X. v/ Federal Republic of Germany, Application No. 6742/74, European Commission of Human Rights, decision of 10 July 1975, DR 3, pp. 98-103.
X. v/ the Netherlands, Application No. 7230/75, European Commission of Human Rights, decision of 4 October 1976, DR 7, pp. 109-114.
G. and E. v/ Norway, Application Nos. 9278/81 & 9415/81 (joined), European Commission of Human Rights, decision of 3 October 1983, DR 35, pp. 30-38.
International Court of Justice Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986 (June 27), p. 14.
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Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, ICJ General List No 141.
Written Statement of Finland Written Statement of the Republic of Finland, Concerning Request of United Nations General Assembly for Advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 17 April 2009.
Written Statement of Germany Written Statement of the Federal Republic of Germany, Concerning Request of United Nations General Assembly for Advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 15 April 2009.
Written Statement of Ireland Written Statement of the Government of Ireland, Concerning Request of United Nations General Assembly for Advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 17 April 2009.
Written Statement of the Netherlands Written Statement of the Kingdom of the Netherlands, Concerning Request of United Nations General Assembly for Advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 17 April 2009.
LEAGUE OF NATIONS DOCUMENTS
Aaland Island Agreement The Aaland Agreement in the Council of the League of Nations, placed on record 27 June 1921, LNOJ 701 (September 1921).
LN Council Decision Decision of the Council of the League of Nations on the Aaland Islands including Sweden’s Protest, placed on record 24 June 1921, LNOJ 697 (September 1921).
Report of the Commission of Rapporteurs Aaland Islands, Report of the Commission of Rapporteurs, LN Council Doc. B7/21/68/106 (April 1921).
Report of the International Committee of Jurists Aaland Islands, Report of International Committee of Jurists, LNOJ Spec. Supp. No. 3 (October 1920).
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UNITED NATIONS DOCUMENTS
CERD General Recommendation No. 21 Committee on the Elimination of Racial Discrimination, General Recommendation No. 21: Right to Self-Determination, UN GAOR, 51st Sess., Supp. No. 18, UN Doc. A/51/18 (1996), at 125.
CERD Summary Record 1996 Committee on the Elimination of Racial Discrimination, Summary Record of the 1147th Meeting, 13 March 1996, UN Doc. CERD/C/SR.1147.
HR/CT General Comment No. 23 Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/21/Rev.1/Add.5., UN GAOR, 49th Sess., Supp. No. 40, UN Doc. A/49/40(Vol. I) (1994), at 106.
ILC Yearbook 2001 Yearbook of the ILC (2001), Volume II, Part 2, Report of the Commission to the General Assembly on the work of its Fifty-third Session, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2).
ILC Yearbook 1949 Yearbook of the ILC (1949), Volume I, Summary Records and Documents of the First Session including the report of the Commission to the General Assembly, UN Doc. A/CN.4/SR.14.
UNESCO Report 1990 United Nations Educational Scientific and Cultural Organization, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples: Final Report and Recommendations, 22 February 1990, UN Doc. SHS-89/CONF.602/7.
UNGA Resolution 1497(XV) The Status of the German-speaking Element in the Province of Bolzano (Bozen); Implementation of the Paris Agreement of 5 September 1946, GA Res. 1497(XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doc. A/4684 (1960), at 5.
UNGA Resolution 1661 (XVI) The Status of the German-speaking Element in the Province of Bolzano (Bozen), GA Res. 1661 (XVI), UN GAOR, 16th Sess., Supp. No. 17, UN Doc. A/5100 (1961), at 10.
UNGA Resolution 2625 (XXV) Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), UN GAOR, 25th Sess., Supp. No. 28, UN Doc. A/8028 (1970), at 121.
UNGA Resolution 47/135 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res. 47/135, UN GAOR , 47th Sess., 92nd plen. mtg., UN Doc. A/47/49(Vol. I) (1992), at 210.
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UNGA Resolution 48/138 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res. 48/138, UN GAOR, 48th Sess., 85th plen. mtg.,UN Doc. A/ 48/49(Vol. I) (1993).
UNGA Resolution 50/6 Declaration on the Occasion of the 50th Anniversary of the United Nations, GA Res. 50/6, UN GAOR, 50th Sess., 40th plen. mtg., UN Doc. A/50/49(Vol. I) (1995), at 13.
UNGA Resolution 56/83 Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83, UN GAOR, 56th Sess., 85th plen. mtg., UN Doc. A/56/49(Vol. I) (2001), at 499.
UNGA Resolution 62/243 The Situation in the Occupied Territories of Azerbaijan, GA Res. 62/243, 86th plen. mtg., (2008).
UNSC Resolution 541 (1983) The Situation in Cyprus, SC Res. 541, UN SCOR, 38th Sess., 2500th mtg., UN Doc. S/INF/39 (1983), at 15.
UNSC Resolution 662 (1990) The Situation between Iraq and Kuwait, SC Res. 662, UN SCOR, 45th Sess., 2934th mtg., UN Doc. S/INF/46 (1990), at 20.
UNSC Resolution 822 (1993) The Situation relating to Nagorny Karabakh, SC Res. 822, UN SCOR, 48th Sess., 3205th mtg., UN Doc. S/INF/49 (1993), at 70.
UNSC Resolution 853 (1993) The Situation relating to Nagorny Karabakh, SC Res. 853, UN SCOR, 48th Sess., 3259th mtg., UN Doc. S/INF/49 (1993), at 71.
UNSC Resolution 874 (1993) The Situation relating to Nagorny Karabakh, SC Res. 874, UN SCOR, 48th Sess., 3292nd mtg., UN Doc. S/INF/49 (1993), at 72.
UNSSC Resolution 884 (1993) The Situation relating to Nagorny Karabakh, SC Res. 884, UN SCOR, 48th Sess., 3313th mtg., UN Doc. S/INF/49 (1993), at 73.
Vienna Declaration Vienna Declaration and Programme of Action, UN GAOR, World Conference on Human Rights, UN Doc. A/CONF.157/24 (1993), reprinted in 32 ILM 1661 (1993).
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COUNCIL OF EUROPE DOCUMENTS
ECRI Report 2007 European Commission against Racism and Intolerance, Second report on Azerbaijan, Strasbourg 2007, CRI(2007)22.
PACE Recommendation 1201 Council of Europe Parliamentary Assembly, Recommendation 1201 (1993), Additional Protocol on the Rights of Minorities to the European Convention on Human Rights, adopted by the Assembly on 1 February 1993 (44th Session- Fourth part, 22nd Sitting).
PACE Resolution 1047 Council of Europe Parliamentary Assembly, Resolution 1047 (1994), Conflict in Nagorno-Karabakh, adopted by the Standing Committee, acting on behalf of the Assembly, on 10 November 1994. Session: 1995 - First part-session
PACE Resolution 1119 Council of Europe Parliamentary Assembly, Resolution 1119 (1997), Conflicts in Transcaucasia, adopted by the Assembly on 22 April 1997 (Second part-session, 11th Sitting).
PACE Resolution 1416 Council of Europe Parliamentary Assembly, Resolution 1416 (2005), The Conflict over the Nagorno- Karabakh Region dealt with by the OSCE Minsk Conference, adopted by the Assembly on 25 January 2005 (First part-session, 2nd Sitting).
PACE Working Paper Doc. 8939 Council of Europe Parliamentary Assembly Doc. 8939, Rights of National Minorities; the opinion of the Political Affairs Committee, rapporteur: Mr Gjellerod, approved by the Committee on 20 January 2001.
PACE Working Paper Doc. 8943 Council of Europe Parliamentary Assembly Doc. 8943, Rights of National Minorities; the opinion of the Committee on Migration, Refugees and Demography, rapporteur: Mr Tabajdi, approved by the Committee on 23 January 2001.
PACE Working Paper Doc. 12879 Council of Europe Parliamentary Assembly Doc. 12879, An Additional Protocol to the European Convention on Human Rights on National Minorities; report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Frunda, adopted by the committee on 16 November 2011.
Venice Commission 1996 European Commission for Democracy through Law (Venice Commission): Opinion on the Interpretation of Article 11 of the Draft Protocol to the European Convention on Human Rights annexed to Recommendation 1201 of the Parliamentary Assembly, (1996) – CDL-MIN(96)4.
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CSCE/OSCE DOCUMENTS
Charter of Paris Charter of Paris for a New Europe and Supplementary Document to Give Effect to Certain Provisions of the Charter, (Paris, 21 November 1990), 30 ILM 190 (1991).
Copenhagen Document Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, (Copenhagen, 29 June 1990), 29 ILM 1305 (1990).
CSCE Report 1991 Report of the CSCE Meeting of Experts on National Minorities, (Geneva, 19 July 1991), 30 ILM 1692 (1991).
Helsinki Final Act Final Act of the Conference on Security and Co-operation in Europe, (Helsinki, 1 August 1975), 14 ILM 1292 (1975).
Lisbon Document Lisbon Document 1996, Doc. S/1/96, OSCE, 3 December 1996.
OTHER DOCUMENTS
G8 Summit 2009 Joint Statement on the Nagorno-Karabakh Conflict by U.S. President Obama, Russian President Medvedev, and French President Sarkozy at the L’Aquila Summit of the Eight, July 10, 2009, available at:
Human Rights Watch 1992 Human Rights Watch, Bloodshed in the Caucasus: Escalation of the Armed Conflict in Nagorno- Karabakh, September 1992.
Human Rights Watch 1994 Human Rights Watch, Azerbaijan: 7 Years of Conflict in Nagorno-Karabakh, December 1994.
International Commission of Jurists 1972 International Commission of Jurists, ‘The Events in East Pakistan, 1971: A Legal Study’, 1972.
MFA of the Republic of Azerbaijan 2009 The Armenia-Azerbaijan Conflict, Courtesy of the Ministry of Foreign Affairs of the Republic of Azerbaijan Journal “Diplomatiya Alуѳmi” (“World of Diplomacy”), 2009, available at:
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Annex 1
PROCLAMATION OF THE NAGORNO-KARABAKH REPUBLIC285
With the participation of delegates from all levels of councils in a joint session of people’s deputies of the Nagorno-Karabakh (NK) regional and Shahumian district councils, by the expression of the popular will supported by a documented referendum, and by the decision taken by the authorities of the NK autonomous region and the Shahumian district between 1988-91 concerning its freedom, independence, equal rights, and neighbourly relations;
Noting specifically the Azerbaijani Republic's declaration of restoring its national independence according to its 1918-20 boundaries;
Recognizing that Azerbaijan's policies of apartheid and discrimination have created an atmosphere of hatred and intolerance toward the Republic's Armenian population, and led to armed clashes, casualties, and the deportation of Armenian civilians from peaceful villages;
Establishing itself on the basis of the current constitution and the laws of the Union of the Soviet Socialist Republic (USSR), which, upon the secession of a union republic from the USSR, allow the peoples of autonomous formations and coexisting ethnic groups the right to self-determination of its national-legal status;
Noting that the territory of the Shahumian district was forcibly detached from Nagorno-Karabakh, and recognizing the intentions of the Armenian population to reunify as commensurate with the norms of natural and international law;
Intending that neighbourly relations between the peoples of Armenia and Azerbaijan will be restored based on mutual respect for each other's rights;
Taking into consideration both the complexity and controversial nature of the situation in the country, the future of the [Soviet] Union, and the uncertain future of the [Soviet] Union structures of ruling authority and government;
285 Website of the Office of the Nagorno-Karabakh Republic in the United States of America;
Respecting and abiding by the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the principles of the International Covenant on Civil and Political Rights, and trusting in the understanding and support of the international community;
Declares
The Nagorno-Karabakh Republic within the current boundaries of the NK autonomous region and the adjacent Shahumian district, the NKR.
The Nagorno-Karabakh Republic, basing itself on the authority given to republics by the constitution and legislation of the USSR, reserves the right to decide independently its legal status as a state on the basis of political consultations and negotiations with the leadership of other countries and republics.
Prior to the acceptance of the constitution and laws of the NKR, the constitution and legislation of the USSR, as well as other existing laws shall be in effect on the territory of the NKR unless they contradict the purposes and principles of this declaration and the specific nature of the republic.
/Signed/
Delegates of all levels participating in the joint session of the NK regional and Shahumian district councils' peoples delegation
September 2, 1991
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Annex 2
DECLARATION ON STATE INDEPENDENCE OF THE NAGORNO-KARABAKH REPUBLIC286
Proceeding from the peoples' inherent right for self-determination, as well as the will of the people of Nagorno-Karabakh expressed in December 10, 1991 republic referendum; understanding the responsibility for the fate of the historical Motherland; confirming adherence to the principles of the September 2, 1991 Declaration on the Proclamation of the Nagorno-Karabakh Republic; striving for normalization of relations between the Armenian and Azerbaijani peoples; willing to protect the NKR population from aggression and threat of physical extermination; developing on the experience of people's self-government in Nagorno-Karabakh in 1918-1920; expressing readiness to establish equal and mutually beneficial relations with all the states and commonwealths; respecting and following the principles of the Universal Declaration of Human Rights and International Pact on Economic, Social and Cultural Rights, final document of the Vienna meeting between the European Conference on Security and Cooperation member-states, other universally recognized norms of international law.
The Supreme Soviet of the Nagorno-Karabakh Republic Ratifies the NKR State Independence
The NKR is an independent state. It has its own national flag, emblem and anthem. The NKR Constitution and laws, as well as international and legal acts regulating respect of human rights and freedoms are in force in the NKR territory.
Whole power in the NKR belongs to the people of the Nagorno-Karabakh Republic, which realizes its power and will through nationwide referendum or via representative bodies.
286 Website of the Office of the Nagorno-Karabakh Republic in the United States of America;
All the residents of Nagorno-Karabakh are citizens of the NKR. The NKR allows double citizenship. The NKR protects its citizens. The NKR guarantees rights and freedoms of all its citizens regardless of their nationality, race and creed.
Armed forces, law enforcement and state security bodies are established in the NKR subordinate to supreme authorities to ensure the protection of its citizens and the security the population. The NKR citizens serve in the military on the territory of the NKR. The NKR citizens' military service in other states, as well as presence of foreign armed forces in the NKR territory is realized on the basis of interstate agreements and arrangements.
As a subject of international law, the NKR conducts an independent foreign policy, establishes direct relations with other states, and participates in the activities of international organizations.
Land, depths, air space, natural, material and spiritual wealth of the NKR is the property of its people. The NKR laws regulate their usage and ownership.
The NKR economy is based on the principle of equality of all forms of property. It ensures equal opportunities of full and free participation in the economic life for all citizens of the NKR.
The NKR recognizes the priority of human rights, ensures the freedom of speech, conscience, political and social activity and all the other universally recognized civil rights and freedoms. National minorities are under protection by the state. The NKR state structure ensures for national minorities the possibility of a full-fledged participation in political, economic and spiritual life of the Republic. The law prosecutes any national discrimination.
The NKR state language is Armenian. The NKR recognizes the national minorities' right for using, without any restrictions, their native language in economic, cultural and educational spheres.
This Declaration and General Declaration on Human Rights form the basis of the NKR Constitution and legislation.
January 6, 1992
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