security and human rights 28 (2017) 180-213 brill.com/shrs The Purposes and Principles of the un Charter Origins, Subsequent Developments in Law and Practice and (Mis)interpretation in the Context of Unilateral Secession Claims in the osce Area Tofig F. Musayev * ll.m in International Human Rights Law, University of Essex, u.k., Counsellor, Permanent Mission of Azerbaijan to the u.n. [email protected] Rovshan Sadigbayli m.a. in International Relations, Bilkent University, Turkey, Counsellor, Permanent Mission of Azerbaijan to the o.s.c.e. [email protected] Abstract The article reviews the purposes and principles of the u.n. Charter in light of persistent claims voiced in the context of protracted conflicts in the osce area that the principle of self-determination allegedly grants the right to unilateral secession. The drafting history of the Charter indicate that States did not recognise a right to unilateral seces- sion of a part of population of a State as a means of exercising self- determination. Subsequent development of this principle in law and in practice in the decades after the adoption of the Charter to a large extent has been shaped by the original ideas and understanding that went into the Charter. Invalidation at the international level of secessionist claims and actions, collective non-recognition of the resulting situa- tions and abstention from aid or assistance that contributes to their consolidation are among legal and political consequences that have been applied and need to be con- sistently maintained with regard to the protracted conflicts in the osce area and their settlement processes. * The opinions expressed in this article are those of the authors. © Tofig F. Musayev and Rovshan Sadigbayli, 2019 | doi 10.1163/18750230-02801006 This is an open access article distributed under the terms of the prevailing CC-BY-NC license at the time of publication. Downloaded from Brill.com09/30/2021 04:04:55AM via free access <UN> The Purposes and Principles of the un Charter 181 Keywords un Charter – self-determination – territorial integrity – protracted conflicts Introduction The misconception of perceived contradiction between the principle of equal rights and self-determination of peoples and the principle of territorial integ- rity of States is deeply rooted in the academic community and the political domain alike.1 This dichotomy is nowhere more acute than in the context of the protracted conflicts in the osce area.2 The primary purpose of this article is not a detailed account of the historical background and political dynamics of these conflicts, which have been reviewed elsewhere.3 Rather, the focus of 1 See, for example, J. Summers, ‘The Rhetoric and Practice of Self-Determination: A Right of All Peoples or Political Institutions?’, in Nordic Journal of International Law, 2004, no. 73; J. Falkowski, ‘Secessionary Self-Determination: A Jeffersonian Perspective’, in Boston Univer- sity International Law Journal, 1991, no. 209; Z. Velasco, ‘Self-determination and Secession: Human Rights-based Conflict Resolution’, in International Community Law Review, 2014, no. 16; E. Laing, ‘The Norm of Self-Determination, 1941–1991’, in California Western International Law Journal, 1992, no. 209; M. Gunter, ‘Self-Determination or Territorial Integrity: The Unit- ed Nations in Confusion’ in World Affairs, 1979, no. 3, pp. 203–216; O. Kamanu, ‘Secession and the Right of Self-Determination: An O.A.U. Dilemma’ in The Journal of Modern African Studies, 1974, no. 3, pp. 355–376; M. Islam, ‘Secessionist Self-Determination: Some Lessons from Katanga, Biafra and Bangladesh’ in Journal of Peace Research, 1985, no. 3, pp. 211–221; L. Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’, in Yale Journal of International law, 1991, no. 177; F. Kirgis, ‘The Degrees of Self-Determination in the United Nations Era’ in The American Journal of International Law, 1994, no. 2, pp. 304–310; Repertoire of Practice of the u.n. Security Council, Consideration of the provisions of Article 1, Paragraph 2 of the Charter, 1975–1980, pp. 407–408. 2 The term ‘protracted conflicts’ is often used to describe the conflicts in Abkhazia and South Ossetia (Georgia), the conflict in and around the Nagorno-Karabakh region of Azerbaijan, the Transdniestrian conflict in Moldova and the crisis in and around Ukraine. 3 See, for example, V. Lozinskiy, ‘The osce Mission in Nagorno-Karabakh’, in Journal of Interna- tional Peacekeeping, No. 1, 2000; A. Alexandru, ‘The Role of Mediation in Settling Protracted Conflicts. Case Study: The Transnistrian Conflict’, in Romanian Journal of International Law, No. 227, 2012; D. Lynch, ‘Separatist States and Post-Soviet Conflicts’, in International Affairs, 2002, No. 4; L. Laurinaviciute & L. Bieksa, ‘The relevance of remedial secession in the post- Soviet “frozen conflicts”, in International Comparative Jurisprudence, 2015, No. 66; Marie-Jose van Rie, “The Role of the osce in the Conflict in Georgia” in Security & Human Rights, 2009, No. 318; T.D. Grant, ‘Frozen Conflicts and International Law’, in Cornell International Law Journal, No. 361, 2017. security and human rights 28 (2017) 180-213 Downloaded from Brill.com09/30/2021 04:04:55AM via free access <UN> 182 Musayev and Sadigbayli this research is on a common feature pertaining to all these conflicts – claims that the principle of self-determination allegedly grants the right to unilateral secession. Proponents of this view often try to find support to their legal po- sition in the u.n. Charter and other international and regional documents.4 Given the implications of this theoretical discourse for the conflict settlement processes and its contribution to the intractability of these conflicts, it is worth briefly revisiting the Charter and other relevant documents to see whether such arguments really derive from them. Recourse to the drafting history of the u.n. Charter, by following the gen- eral rules of the interpretation of the treaties,5 will be particularly valuable for our analysis. The Documents of the United Nations Conference on International Organization,6 which is considered by the United Nations as a complete docu- mentary legislative history of the United Nations Conference,7 The Yearbook of 4 See, for example, on the conflicts in Georgia – Comment by the Information and Press De- partment on the 10th anniversary of the August 2008 events in the Caucasus, Ministry of Foreign Affairs of the Russian Federation, No. 1462-07-08-2018, 7 August 2018, <http://www .mid.ru/ru/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/3315007?p_p _id=101_INSTANCE_cKNonkJE02Bw&_ 101_INSTANCE_cKNonkJE02Bw_languageId=en_GB>; On the crisis in and around Ukraine – Provisional Verbatim Record of 7138th Meeting of the u.n.s.c., 15 March 2014, un Doc. S/pv.7138, <https://www.securitycouncilreport.org/atf/ cf/%7b65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7d/s_pv_7138.pdf>; In the context of Armenia-Azerbaijan conflict, Note Verbale dated 21 March 2005 from the Permanent Mission of Armenia to the United Nations Office at Geneva addressed to the Office of the United Nations High Commissioner for Human Rights, Annex, ‘Legal Aspects for the Rights to Self- Determination in the Case of Nagorny Karabakh’, u.n. Doc. E/cn.4/2005/G/23. 5 For the general rules of interpretation of the treaties, see articles 31 and 32, Vienna Conven- tion on the Law of Treaties, 8 ilm 679 (1969); B. Simma, D.-E. Khan, G. Nolte, A. Paulus, (ed.), The Charter of the United Nations. A Commentary, Oxford: Oxford University Press, 2012, 3rd ed, vol. i, pp. 75–79. 6 Documents of the United Nations Conference on International Organization, San Francisco, (1945), vol. i–xxii, available at <http://digitallibrary.un.org/record/1300969?ln=en>. 7 The United Nations Conference on International Organization (referred to as u.n.c.i.o. or the Conference) convened in San Francisco, California, from 25 April–26 June 1945, for the purpose of drafting the Charter and the Statute of the International Court of Justice. The Conference had a complex organization and structure, divided into four Commissions tasked to recommend to the Conference action upon draft proposals submitted to it by the twelve drafting technical committees and sub-committees and four general committees. For the modalities of the Conference, see Doc. 25, dc/1, u.n.c.i.o. Documents, vol. v; Doc. 31, dc/6, April 27, u.n.c.i.o. Documents, vol. v, pp. 125–126. No stenographic transcript of proceedings of the Conference was kept except at the plenary sessions and public meet- ings of the Commissions. For all other meetings the Secretariat prepared a summary of the security and humanDownloaded rights from 28 Brill.com09/30/2021 (2017) 180-213 04:04:55AM via free access <UN> The Purposes and Principles of the un Charter 183 the United Nations 1946–1947,8 reports of participating governments and aca- demic research, provide useful insight into the negotiations of the Charter and its subsequent interpretation and will be consulted, where appropriate.9 The pages that follow will show that the development of the principle of self-determination in the decades after the adoption of the u.n. Charter to a large extent has been shaped by the original ideas and understanding that went into the Charter. The un Charter: Emergence of the Rules-based International Order While reviewing the Charter, one should follow the prescription of its draft- ers, who viewed the Purpose of the Charter as indivisible part with other pro- visions, namely Preamble and Principles, each of them being “equally valid, binding and operative”.10 The rapporteur of the drafting Committee11 observed discussions and of the decisions reached. Doc. 25, dc/1, u.n.c.i.o. Documents, vol. v, p. 19; Doc. 177, st/5, vol. v, p. 200. 8 Yearbook of the United Nations 1946–1947, (1947).