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Published online by Cambridge University Press: 20 January 2017
On June 16, 2015, the European Court of Human Rights (ECHR or the Court) released its judgment in Chiragov and Others v. Armenia, finding that the rights of Azerbaijani refugees had been violated by their inability to return to property in an area under Armenia’s control. The judgment, which centers on a long-standing, “frozen” territorial armed conflict in Nagorno-Karabakh, develops the Court’s jurisprudence on extraterritoriality. The intervention of Azerbaijan in the case makes it into a pseudo interstate dispute. Finally, although not the focus of this note, the application of the Pinheiro Principles to adjudicate mass population transfer is praiseworthy for its advancement of the contribution of human rights law to conflict resolution.
* This text was reproduced and reformatted from the text available at the European Court of Human Rights website (visited November 2, 2015), http://hudoc.echr.coe.int/eng?i=001-155353.
1 Chiragov and Others v. Armenia, Eur. Ct. H.R. (2015), http://hudoc.echr.coe.int/eng?i=001-155353.
2 The Court however uses the outdated “boots on the ground” interpretation of the Article 42, 1907 Hague Regulations standard for occupation, sidestepping the remote-control nature of some occupations, widely accepted by the International Committee of the Red Cross, states, international organizations, and scholars in relation to the situations in Northern Cyprus, Western Sahara, and the Gaza Strip.
3 Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 29, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
4 Id. art. 6.
5 Sargsyan v. Azerbaijan, Eur. Ct. H.R. (2015), http://hudoc. echr.coe.int/eng?i=001-155662 (concurring opinion by Yudkivska, J.).
6 Chiragov, Eur. Ct. H.R. ¶ 168.
7 Id. ¶ 186.
8 Id.
9 Id.
10 Id. ¶ 94.
11 See Yutaka, Arai-Takahashi, The Law of Occupation 145 (2009)Google Scholar; Yoram, Dinstein, The International Law of Belligerent Occupation 58 (2009)Google Scholar.
12 Agency could even extend to the civilians of the occupying power if there is lack of due diligence on the part of the military government in preventing or punishing these acts. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Commentary of 1958: Art. 29, International Committee of the Red Cross, https://www. crc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documented=845F8C8972D63EB8C12563CD0042BA92 Google Scholar (last visited Dec. 14, 2015). See also Dinstein, supra note 11, at 57–58.
13 Dinstein, supra note 11, at 57.
14 See, for example, the U.S. Restatement for Foreign Relations in relation to extra-territorial conduct with cross-border impact: “Jurisdiction to prescribe” exists when the regulated activity has “substantial, direct and foreseeable effect upon or in the territory.” Restatement (Third) of Foreign Relations Law of the U.S. § 403 (2) (Am. Law Inst. 1987). See also, Chiragov, Eur. Ct. H.R. ¶ 6 (dissenting opinion by Ziemele, J.)Google Scholar.
15 Article 6 is triggered when a year has passed since military operations have come to an end, and the occupier continues to exercise some functions of government in the occupied territory—which is arguably not triggered even in the case of Israel’s long-standing occupation of Palestinian territory. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Commentary of 1958: Art. 6, International Committee of the Red Cross, http://www.icrc.org/ihl.nsf/COM/380-600009?OpenDocument Google Scholar (last visited Dec. 14, 2015); Valentina, Azarova, Disingenuous “Disengagement”: Israel’s Occupation of the Gaza Strip and the Protective Function of the Law of Belligerent Occupation , Opinio Juris (Apr. 24, 2012, 12:00 PM)Google Scholar, http://opiniojuris.org/2012/04/24/disingenuous-disengagement-israels-occupation-of-the-gaza-strip-and-the-protective-function-of-the-law-of-belligerent-occupation.
16 The French formulation of Article 43 of 1907 Hague Regulations is: “l’ordre et la vie publics.”
17 In Loizidou, the European Court of Human Rights confirmed that effective control could be maintained directly by the occupying power, or exercised through a “subordinate local administration.” Loizidou v. Turkey, 23 Eur. H.R. Rep. 513, ¶ 52 (1996).
18 Id. ¶ 56.
19 Ilaşcu v. Moldova and Russia, 2004-VII Eur. Ct. H.R. 179, ¶¶ 316, 382 (2004). See also Chiragov, Eur. Ct. H.R., ¶¶ 66– 70 (dissenting opinion by Gyulumyan, J.).
20 James, Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 245 (2002)Google Scholar.
1 See, for example, Benvenisti, E., The International Law of Occupation (Oxford: Oxford University Press, 2012), at p. 43 CrossRefGoogle Scholar; Arai-Takahashi, Y., The Law of Occupation: Continuity and Change of International Humanitarian Law, and Its Interaction with International Human Rights Law (Leiden: Martinus Nijhoff Publishers, 2009), at pp. 5–8 CrossRefGoogle Scholar; Dinstein, Y.,The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009), at pp. 42–45 CrossRefGoogle Scholar, §§ 96–102; and Roberts, A., Transformative Military Occupation: Applying the Laws of War and Human Rights , 100 American Journal of International Law 580 (2006), at pp. 585–586 Google Scholar.
2 Most experts consulted by the International Committee of the Red Cross (ICRC) in the context of the project on occupation and other forms of administration of foreign territory agreed that ‘boots on the ground’ are needed for the establishment of occupation – see Ferraro, T., Occupation and other Forms of Administration of Foreign Territory (Geneva: ICRC, 2012), at pp. 10, 17 Google Scholar and 33; see also Benvenisti, E., cited above, at pp. 43ff; and Koutroulis, V., Le debut et la fin de l’application du droit de l’occupation (Paris: Editions Pedone, 2010), at pp. 35–41 Google Scholar.
3 T. Ferraro, cited above, at pp. 17 and 137; Y. Dinstein, cited above, at p. 44, § 100.
4 Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian Law (Geneva/Cambridge: ICRC/Cambridge University Press, 2005)CrossRefGoogle Scholar.
5 The name Nagorno-Karabagh or Nagorno-Karabakh is of Russian, Persian and Turkish origin. Nagorno is the Russian word for “mountainous”. Kara comes from Turkish and bagh/bakh from Persian. Karabagh or Karabakh may be translated as “black garden”. The Armenian name for the territory is Artsakh. I will use the transliterated name Nagorno-Karabakh for the sake of consistency with the majority’s judgment.
6 See Article 33 of the Constitution of the “Nagorno-Karabakh Republic”.
7 See Article 25 of the Constitution of the “Nagorno-Karabakh Republic”.
8 In Cyprus v. Turkey [GC], no. 25781/94, § 184, ECHR 2001-IV, the Court agreed with the Commission’s analysis of the relevant constitutional provisions of the TRNC. I fail to understand why the constitutional framework of the “Nagorno-Karabakh Republic” has not been examined in the present case as well.
9 See Loizidou v. Turkey (merits), judgment of 18 December 1996, § 45, Reports of Judgments and Decisions 1996-VI, on the basis of the Advisory Opinion of the International Court of Justice (ICJ) on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, p. 56, § 125.
10 This is a well-established rule of customary international law (see Interhandel Case, Judgment of March 21st 1959, ICJ Reports 1959, p. 27, and Article 14 of the Draft Articles on Diplomatic Protection of the International Law Commission (ILC).
11 See Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, § 100, 1 March 2010.
12 It is highly regrettable that this evidence, which has been available in the file since 2006, was simply ignored by the majority. No attention is given to this argument of the respondent State in paragraphs 117 and 118 of the judgment.
13 See Pad and Others v. Turkey (dec.), no. 0617/00, § 69, 28 June 2007, and ILC Third Report on Diplomatic Protection (A/CN.4/523), § 83.
14 I have already referred to this censurable way of proceeding in a case where the persons potentially interested in the outcome of the case were not so numerous (see my separate opinion appended to Vallianatos and Others v. Greece GC], nos. 29381/09 and 32684/09, ECHR 2013).
15 See Cyprus v. Turkey, cited above, § 324.
16 Even if the majority do not take into account the final judgments presented by the respondent Government in the hearing before the Grand Chamber, which refer to complaints similar to those of the applicants in the present case, there are other judicial cases which concern criminal, labour and land law where persons of Azeri or Kurdish origin were successful before Armenian and “Nagorno-Karabakh Republic” courts, one of the cases referring to an inheritance claim by a person of Kurdish origin before a “Nagorno-Karabakh Republic” court.
17 See Parliamentary Assembly of the Council of Europe, Resolution 1547 (2007) on the state of human rights and democracy in Europe.
18 See, for example, Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX.
19 In Loizidou (merits), cited above, § 66, the Court found, when interpreting the concept of “home” in Article 8: “Nor can that term be interpreted to cover an area of a State where one has grown up and where the family has its roots but where one no longer lives”.
20 The majority themselves acknowledge these discrepancies in paragraph 142, but accept them in view of the “totality of evidence presented”, meaning the statements of former neighbours and the documents showing the applicants’ identities.
21 See paragraphs 146 and 149 of the judgment. Consequently, the simple question of the very existence of the houses, which was left open in the Court’s admissibility decision, remains undecided even now.
22 See Principle 15.7 of the Pinheiro Principles, invoked in the judgment. The considerable degree of the Court’s flexibility can be seen in paragraphs 142, last sentence, and 143, of the judgment.
23 In Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 330 and 392, ECHR 2004-VII, the Court assessed the effective control until the date of delivery of the Grand Chamber judgment. This approach was confirmed in Catan and Others v. Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, §§ 109 and 111, ECHR 2012.
24 See Šilih v. Slovenia [GC], no. 71463/01, §§ 159–163, ECHR 2009. See for my interpretation of the Court’s ratione temporis jurisdiction, my separate opinion in Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, ECHR 2014.
25 See Catan and Others, cited above, § 116.
26 Reference to isolated cases evidently does not suffice. In fact, in paragraphs 76 and 182, the majority refer to three cases (Zalyan, Sargsyan and Serobyan v. Armenia, nos. 36894/04 and 3521/07) that have not even been finalised yet, in spite of the time that has passed since the delivery of the admissibility decision. Another fourth case is mentioned, that of Mr Armen Grigoryan, of which the Court has no direct evidence.
27 Rule 33 of the Rules of Court provides for the possibility of restricting public access to certain documents in the interests of public order or national security. It does not contain any rule on the restriction of disclosure of evidence to one party. The General Instruction for the Registry on the treatment of internal secret documents approved by the President of the Court in March 2002 does not apply to the evidence provided by the parties either. Finally, the Practice Direction on Written Pleadings issued by the President of the Court in November 2003 and amended in 2008 and 2014 (“Secret documents should be filed by registered post”) is manifestly insufficient.
28 See, for some examples of these agreements, http://www.army.mod.uk/operations-deployments/22753.aspx., http://www.defense.gouv.fr/operations/rubriques_complementaires/carte-des-operations-exterieures and http://www.emgfa.pt/pt/operacoes/estrangeiro.
29 S/RES/882 (1993).
30 S/RES/853 (1993).
31 S/RES/874 (1993).
32 S/RES/884 (1993). The expressions used are “the local Armenian forces” (Resolution 822) and “Armenians of the Nagorno Karabakh region of Azerbaijan” (Resolutions 853 and 884).
33 A/RES/62/243. The expression used is “all Armenian forces”. Thus, the reference to this Resolution in paragraph 176 of the judgment is misleading, since the General Assembly does not refer to the withdrawal of armed forces of the Republic of Armenia.
34 See paragraph 16 of the Loizidou judgment, cited above, for a detailed establishment of the facts.
35 In the Ilaşcu and Others judgment (cited above) the Grand Chamber found it established “beyond reasonable doubt” (§ 26) that the support provided to the separatists by the troops of the 14th Army and the massive transfer to them of arms and ammunition from the 14th Army’s stores put the Moldovan army in a position of inferiority that prevented it from regaining control of Transdniestria. On 1 April 1992 the President of the Russian Federation officially transferred the 14th Army to Russian command, and it thereafter became the “Russian Operational Group in the Transdniestrian region of Moldova” (ROG). The Court went on to describe the military activities of the ROG in order to support the separatists. The same evidential criterion has been applied in Cyprus v. Turkey, cited above, § 113, and in Catan and Others, cited above, §§ 19 and 118.
36 Nonetheless, it has been recognised by Transdniestria, Abkhazia and South Ossetia, which themselves have limited international recognition.
37 This does not necessarily call into question their binding force (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), cited above, p. 53, § 113). The language used in these resolutions is indicative that they are not mere recommendations or exhortations, but legally binding decisions. For the dispute over the legal force of the Security Council acts approved outside the scope of Chapter VII, see for example the comments of Herve´ Cassan and Suy/Angelet, in Cot et al., La Charte des Nations Unies, Commentaire article par article, I, 3rd edition, Paris, 2005, respectively, pp. 896–897 and 912–915.
38 The resolution was voted on as follows: 39 States in favour, 7 against and 100 abstentions. The three co-chairs opposed the “unilateral text” of the draft resolution, because it “threatened to undermine the peace process”. The majority of the Grand Chamber did refer to this document in the “Facts” part, but omitted the result of the vote taken, and did not use the reference in the “Law” part. No mention was made in the judgment of the two previous General Assembly Resolutions taken without a vote.
39 A/RES/48/114.
40 A/RES/60/285.
41 Parliamentary Assembly of the Council of Europe (PACE) Resolution 1047 (1994) on the Conflict in Nagorno-Karabakh and Recommendation 1251 (1994) on the Conflict in Nagorno-Karabakh.
42 PACE Resolution 1119 (1997) on Conflicts in Transcaucasia.
43 PACE Resolution 1304 (2002) on the Honouring of obligations and commitments by Armenia.
44 The edited reference in paragraph 176 to this passage of the PACE Resolution is misleading, because the PACE does not mention the occupation of Azerbaijani territory by the army of the Armenian Republic, nor the annexation of Azerbaijani territory by the State of Armenia. One should not read into the letter of the resolution something which it clearly does not say.
45 PACE Recommendation 1690 (2005)1 on The conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference and Resolution 1416 (2005) on The conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference.
46 See the European Parliament Resolutions of 19 January 2006 on the European Neighbourhood Policy (ENP), of 15 November 2007 on strengthening the ENP, of 6 July 2006 on the European Neighbourhood and Partnership Instrument (ENPI), of 7 April 2011 on the review of the European Neighbourhood Policy – Eastern Dimension, and more recently, of 23 October 2013 on the European Neighbourhood Policy: towards a strengthening of the partnership. Position of the European Parliament on the 2012 reports.
47 See the European Parliament Resolution of 20 May 2010 on the Need for an EU Strategy for the South Caucasus.
48 European Parliament Resolution of 18 April 2012 containing the European Parliament’s recommendations to the Council, the Commission and the European External Action Service on the negotiations of the EU-Armenia Association Agreement.
49 Thus, the reference in paragraph 176 of the judgment to the 2012 EP Resolution is misleading, since the EP did not refer to the occupation of Azerbaijani territory by the army of the State of Armenia. The call on Armenia to stop sending conscripts to serve in Nagorno-Karabakh, which is based on the 1994 agreement referred to above, must be understood in the framework of the EU proposal of general demilitarization of the region.
50 The majority refer to this evidence in the “Facts” part, but do not take it in account in the “Law” part.
51 See also the Zheleznovodsk Communiqué of 23 September 1991, the Sochi Agreement of 19 September 1992, the military-technical protocol on the implementation of the Sochi Agreement of 25 September 1992, the Timetable of Urgent Steps proposed by the Chairman of the CSCE Minsk Group of September 1993, in which Nagorno-Karabakh appears as a party to the conflict for the first time.
52 Recommendation 1251 (1994)1 on the conflict in Nagorno-Karabakh.
53 Resolution 1416 (2005) on the conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference.
54 See Al-Skeini and Others, cited above, § 139.
55 See the references above to the 2005 OSCE mission, the esult of which was confirmed by the 2010 mission.
56 For example, Armenia receives funding from the European Neighbourhood and Partnership Instrument (ENPI) through a national programme. EU bilateral assistance to Armenia amounts to EUR 157 m for 2011–13 (compared to EUR 98.4 m for 2007–10). As a result of progress in reforms, governance and democracy, Armenia benefitted from additional EU allocations (EUR 15 m in 2012 and EUR 25 m in 2013) under the Eastern Partnership Integration and Cooperation programme (EAPIC), in the framework of the application of the “more for more” principle of the revised European Neighbourhood Policy. Armenia also benefits from a number of thematic programmes such as the European Instrument for Democracy and Human Rights (EIDHR). No one would pretend that Armenia is therefore under the effective control of the EU.
57 See Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 139, ECHR 2011.
58 Ultimately, the majority contradict themselves, since in paragraph 96 of the judgment they consider that military occupation always involves “the presence of foreign troops which are in a position to exercise effective control without the consent of the sovereign”, and in paragraph 146 they refer explicitly to Nagorno-Karabakh, the district of Lachin and the other surrounding territories as “now under occupation”, while in paragraph 180 they retract from the “boots on the ground” criterion in favour of a more complacent and slippery criterion of “significant involvement” based on military support in terms of equipment and expertise. The contrast of paragraph 180 of Chiragov and Others with paragraphs 144 and 224 of the Sargsyan judgment is even more astonishing. In paragraph 144 of Sargsyan, the majority return to “the presence of foreign troops” as the necessary criterion to establish occupation and in paragraph 224 they maintain that Azerbaijan “lost control over part of its territory as a result of war and occupation”.
59 Thus, the test of effective control in international humanitarian law depends on the cumulative requirements of unconsented presence of hostile troops on the ground and substitution of local authority (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 230, § 173, and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, p. 167, § 78; see also Ferraro, , “Determining the beginning and end of an occupation under international humanitarian law”, International Review of the Red Cross, 94 (2012), pp. 143–148 CrossRefGoogle Scholar; Koutroulis, , “Le début et la fin de ľapplication du droit de l’occupation”, Paris, 2010, pp. 35–41 Google Scholar; and Benvenisti, , “The International Law of Occupation”, second edition, Oxford, 2012, pp. 43–54)CrossRefGoogle Scholar. The possibility of an “indirect administration” through various Congolese rebel factions was considered possible by the International Court of Justice in the first case cited above, but rejected for lack of evidence. In any event, the specific actions of the non-State actor would have to be attributable to the foreign State in the sense of Article 8 of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts.
60 On the nature of the Court as the European Constitutional Court, see my separate opinion in the case of Fabris v. France [GC], no. 16574/08, ECHR 2013.
61 It is difficult to understand why the present case did not deserve the same care and attention as others of lesser repercussions, such as Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, Naumenko v. Ukraine, no. 42023/98, and Tekin Yildiz v. Turkey, no. 22913/04, where such evidential investigations took place. The Court did not even give reasons for rejecting the evidential steps proposed by the parties. For example, in McKerr v. the United Kingdom, no. 28883/95, § 117, ECHR 2001-III, the Court rejected an investigation because it considered that a fact-finding exercise would duplicate the ongoing domestic procedure. That would not have been true in the present case, where precisely the lack of domestic procedures made additional evidential enquiries indispensable.
62 Although the majority took note of the problem of the “justification for interfering with the individual rights of residents in the area” in paragraph 197 of the judgment, they avoided the issue by simply assuming that the “justification” for the capture of Lachin in May 1992 and the creation of a land link between Armenia and Nagorno-Karabakh had no “direct bearing” on the events that followed or on today’s situation. The majority failed to explain why. They have so neglected to justify why the current situation is no longer “an emergency situation” (paragraph 200). This position is not coherent with the stance taken in paragraphs 231–232 of the Sargsyan judgment, where the same majority discussed the relevance of international humanitarian law for the purposes of justifying deprivation of the Convention right. Unlike the majority in Chiragov and Others, but like the majority in Sargsyan, I am convinced that only the assessment of the “justification” for the 1992 events can provide a solid legal basis for the evaluation of both today’s situation and the situation during the time which elapsed in between, as will be demonstrated below. A similar methodological critique, according to which “it is impossible to separate the situation of the individual from a complex historical development and a no less complex current situation”, can be found in the separate opinion of Judge Bernhardt, joined by Judge Lopes Rocha, in the Loizidou v. Turkey judgment (cited above) and in the separate opinion of Judge Kovler in the Ilaşcu and Others judgment (cited above).
63 See, among many voices in the literature in favour of a right to remedial secession, Umozurike, , Self-determination in International Law, Hamden, 1972, p. 199 Google Scholar; Buchanan, , Secession: the Legitimacy of Self-Determination, New Haven, 1978, p. 332 Google Scholar; Kingsbury, , “Claims by non-state groups in international law”, in Cornell International Law Journal, 25 (1992), p. 503 Google Scholar; Kirgis, , “The degrees of self-determination in the United Nations era”, in American Journal of International Law, 88 (1994), p. 306 CrossRefGoogle Scholar; McCorquordale, , “Self-determination: a Human Rights Approach”, in International and Comparative Law Quarterly, 43 (1994), pp. 860 – 861 Google Scholar; Cassese, , Self-determination of Peoples, Cambridge, 1995, pp. 112–118 Google Scholar; Okafor, , “Entitlement, Process, and Legitimacy in the Emergent International Law of Secession”, in International Journal on Minority and Group Rights, 9 (2002), pp. 53–54 CrossRefGoogle Scholar; Raic, , Statehood and the Law of Self-Determination, Leiden, 2002, pp. 324–332 Google Scholar; Doehring, , in Simma, (ed), The Charter of the United Nations, 2002, article 1, annex: self-determination, notes 40 and 61Google Scholar; Novak, , UN Covenant on Civil and Political Rights Commentary, 2nd revised edition, Kehl, 2005, pp. 19–24 Google Scholar; Suski, , “Keeping the lid on the secession kettle: a review of legal interpretation concerning claims of self-determination by minority populations”, in International Journal of Minority and Group Rights, 12 (2005), p. 225 Google Scholar; Tomuschat, , Secession and self-determination, in Kohen, (ed.), Secession, International Law Perspectives, Cambridge University Press, 2006, pp. 41–45 Google Scholar; Dugard, and Raic, , “The role of recognition in the law and practice of secession”, in Kohen, (ed), ibid., p. 103 Google Scholar; Dugard, , “The Secession of States and their Recognition in the Wake of Kosovo”, Collected Courses of the Hague Academy of International Law, Leiden, 2013, pp. 116–117 Google Scholar; and Ben, Saul et al., The International Covenant on Economic, Social and Cultural Rights Commentary, Cases and Materials, Oxford, 2014, pp. 25–52 Google Scholar.
64 Accordance with International Law of the Unilatera Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010.
65 [1998] 2 SCR 217.
66 The erga omnes nature of the right to self-determination was authoritatively confirmed by the ICJ in the East Timor Case (East Timor Case (Portugal v. Australia), ICJ, Judgment of 30 June 1995, p. 102, § 29). In this particular case, while Indonesian-controlled militiamen were massacring the East Timorese, Secretary-General Annan had to threaten the Indonesian Government with international prosecution for crimes against humanity in exchange for co-operation with the international community and admission of the principle of self-determination of Timor Leste (see Secretary-General’s Press Conference at the UN Headquarters, 10 September 1999). This is the reason why some have viewed Indonesia’s position as a “coerced consent”, which would make the Timor Leste secession a truly non-consensual secession (see Evans, , The Responsibility to Protect: Ending mass atrocity crimes once and for all, Washington, 2008, p. 63 Google Scholar, and Bellami, , Responsibility to Protect, London, 2009, pp. 147 and 148)Google Scholar.
67 Like Hersch, Lauterpacht Sir (Recognition in International Law, Cambridge, 1947, p. 1)Google Scholar, my point of departure is that recognition is not outside the orbit of international law and it depends on an objective legal appraisal of true facts. Although fraught with political implications, this issue does not fall within the purview of pure politics.
68 The ICJ has referred to UN Security Council resolutions condemning some declarations of independence (see Security Council Resolutions 216 (1965) and 217 (1965), concerning Southern Rhodesia; Security Council Resolution 541 (1983), concerning Northern Cyprus; and ecurity Council Resolution 787 (1992), concerning Republika Srpska) in order to conclude that “in all of those instances the Security Council was making a determination as regards the concrete situation existing at the time that those declarations of independence were made; the illegality attached to the declarations of independence thus stemmed not 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). . . . The exceptional character of the resolutions enumerated above appears to the Court to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council”. Pointing in the same direction, see Articles 40 and 41 of the ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts.
69 United Nations General Assembly Resolution 1514 (XV) of 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples (A/RES/1514 (XV), see also A/L.323 and Add.1-6 (1960)) and, in the constant case-law of the ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, cited above, p. 31, § 52; Western Sahara, Advisory Opinion, 1CJ Reports 1975, pp. 31–33, §§ 54–59; East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 102, § 29; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, cited above, pp. 171–172, § 88.
70 The UN Human Rights Committee has affirmed that the principle of self-determination applies to all populations and not only to colonised populations (Concluding Comments on Azerbaijan, CCPR/C/79/Add.38, § 6 and also its General Comment 12, § 7, which refers to General Assembly Resolution 2625 (XXV)).
71 A/RES/25/2625 (XXV) (see also A/8082 (1970)). Although adopted without a vote, the Declaration reflects customary international law (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, pp. 101–103, §§ 191–193).
72 A/RES/48/121. The Resolution was adopted without a vote.
73 A/CONF.157/24 (Part I) at 20 (1993). The Vienna Declaration was adopted by consensus by representatives of 171 States.
74 See African Commission on Human and Peoples’ Rights, Katangese People’s Congress v. Zaire, communication no. 75/92 (2000), and Kevin Mgwanga Gunme v. Cameroon, communication no. 266/2003, with two findings of no violation of Article 20 of the African Charter.
75 Paragraph 138: “the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development”.
76 Given that the States Parties to the CSCE are exclusively European, the “equal rights of peoples and their right to self-determination” cannot be ascribed evidently to colonial peoples.
77 See also Opinion no. 2 of the Badinter Arbitration Commission on Yugoslavia.
78 The Committee on the Elimination of Racial Discrimination, General Recommendation 21 (1996), § 6, admitted “the possibility of arrangements by free agreements of all parties concerned”.
79 See Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States.
80 In addition to the references already made above, see in particular the Declaration on Principles of International Law concerning Friendly Relations, cited above, principle V, paragraph 7, which requires the observance of the principles of equal rights and self-determination of peoples and a “government representing the whole people belonging to the territory without distinction as to race, creed or colour”. A contrario this “safeguard clause” must be understood in the sense that a government which discriminates against a part of its population on the basis of race, creed or colour does not represent the whole people and may not require from them respect for its territorial integrity. Both systematic and teleological interpretations of the Declaration reinforce this conclusion, having regard to the preamble and its acknowledgment of the paramount importance of the right of self-determination. The 1993 Vienna Declaration on Human Rights, cited above, extended the right to external self-determination on the basis of violations of human rights, referring to a “government representing the whole people belonging to the territory without distinction of any kind” (A/Conf.157.24 (1993)). General Assembly Resolution 50/6, of 14 October 1995, which approved “by acclamation” the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations (A/RES/50/6), reiterated the Vienna formulation. The historical predecessor of this right to secession is the position of the Committee of Rapporteurs appointed by the League of Nations to give an opinion on the Aaland Islands dispute, which concluded as follows: “The separation of a minority from the State of which it forms a part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees” (Report of the Committee of Rapporteurs, 16 April 1921, League of Nations Council Document B7 21/68/106 (1921)). For additional references to the practice, see also my separate opinion in Sargsyan v. Azerbaijan (cited above).
81 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, cited above, p. 448, § 109.
82 ibid., p. 437, § 80. Although timid, this is the main contribution of the ICJ to the quarrel over the right to secession in international law. With this narrow interpretation of the territorial integrity principle, the ICJ’s position must be seen as endorsing tacitly that right for non-State actors in multinational States, which was also the position of Albania, Estonia, Finland, Germany, Ireland, Jordan, the Netherlands, Norway, Poland, Russia, Slovenia and Switzerland. The same line of argument could be drawn from Article 11 of the ILC’s Draft Declaration on Rights and Duties of States (“Every State has the duty to refrain from recognizing any territorial acquisition by another State acting in violation of article 9.”). Judge Antônio Cançado Trindade expressed similar views in his convincing separate opinion appended to the ICJ’s Kosovo Advisory Opinion, according to which the systematic violations of the human rights of the Kosovar Albanians gave rise to a right to external self-determination from the parent State (Separate Opinion of Judge Cançado Trindade, ibid., pp. 594–595, §§ 177–181). Judge Abdulqawi Ahmed Yusuf also accepted the existence of such a right, under which the ICJ should have examined the concrete facts of the case (Separate Opinion of Judge Yusuf, ibid;, pp. 622–623, §§ 11–13). Identically, Judge Wildhaber admitted in his separate opinion in Loizidou v. Turkey (cited above, joined by President Rysdall) the existence of a “right to self-determination if their human rights are consistently and flagrantly violated or if they are without representation at all or are massively under-represented in an undemocratic and discriminatory way”.
83 On the structure of the State and its functioning, see the Constitution of the Republic mentioned above and the regular multiparty elections which take place in the territory. On the capacity to enter into relations with other States even before the May 1994 Bishkek Protocol and the subsequent ceasefire agreement, see the evidence mentioned above in the present opinion.
84 See the above-cited case of the Canadian Supreme Court as well as the African Commission cases Katangese People’s Congress v. Zaire and Kevin Mgwanga Gunme v. Cameroon, where the populations of Quebec, Katanga and Southern Cameroon were denied the right to external self-determination in view of their internal self-determination. This stance was confirmed by Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples, adopted by General Assembly Resolution 61/295, of 13 September 2007 (A/RES/61/295), by a majority of 143 States in favour, 4 votes against and 11 abstentions.
85 The acquiescence or connivance of the State in the acts of private individuals which violate Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention (see Cyprus v. Turkey, cited above, § 81, and Ilaşcu and Others, cited above, § 318).
86 Grotius, De jure belli ac pacis, Libri tres, 2.6.5.
87 At this juncture, it is worthwhile to recall the crucial importance of the Lachin corridor, as the Security Council and the CSCE/OSCE have explicitly recognised. Security Council Resolutions 822 (1993) and 853 (1993) thus reiterated: “Calls once again for unimpeded access for international humanitarian relief efforts in the region, in particular in all areas affected by the conflict, in order to alleviate the increased suffering of the civilian population and reaffirms that all parties are bound to comply with the principles and rules of international humanitarian law”. Resolution 874 insisted: “Calls on all parties to refrain from all violations of international humanitarian law and renews its call in resolutions 822 (1993) and 853 (1993) for unimpeded access for international humanitarian relief efforts in all areas affected by the conflict”. The Helsinki Additional Meeting of the CSCE Council (Summary of Conclusions, Helsinki, 24 March 1992, § 10), “urged all CSCE participating States and all concerned parties to take all necessary steps to ensure that humanitarian assistance is provided to all those in need through rapid and effective means including safe corridors under international control.” It is clear from these calls that the situation at the relevant time did require urgent humanitarian intervention, if need be through the means of safe corridors. On humanitarian intervention, both as a right and a responsibility of the international community, see my separate opinion in Sargsyan v. Armenia (cited above).
88 A thorough reply to these questions would require attentive consideration of the available official evidence of violations f the human rights of the Armenian population in Azerbaijan at the relevant time, such as, for example, the European Parliament Resolutions of 7 July 1988 (“whereas the deteriorating political situation, which has led to anti-Armenian pogroms in Sumgait and serious acts of violence in Baku, is in itself a threat to the safety of the Armenians living in Azerbaijan . . . [the European Parliament] [c]ondemns the violence employed against Armenian demonstrators in Azerbaijan”), 18 January 1990 (“having regard to the resumption of anti-Armenian activities by the Azeris in Baku (an initial estimate talks of numerous victims, some of whom died in particularly horrific circumstances) and the attacks on Armenian villages outside Nagorno-Karabakh, such as Shaumyan and Getashen, . . . whereas the blockade of Nagorno-Karabakh has been reinstated by Azerbaijan as harshly as ever”), 15 March 1990 (“concerned at the human rights situation in Nagorno-Karabakh, which is administered by Azerbaijan against the will of the majority of its inhabitants, more than 75% of whom are Armenians, and at the continuing violence in Azerbaijan”), 14 March 1991 (“massacres of Armenians in Azerbaijan”), 16 May 1991 (“deploring the continual aggravation of violence in the Caucasus, particularly against Armenians in the autonomous region of Karabakh”), 13 February 1992 (“whereas the Armenian population living in Nagorno-Karabakh has been subjected to constant blockade and aggression for the last three years, whereas at the end of December 1991 Azerbaijan launched a huge and unprecedented offensive against Armenians living in Nagorno-Karabakh, whereas Armenian villages in Nagorno-Karabakh were bombarded with heavy artillery on 34 occasions during January 1992, with over 1 100 rockets and mortars fired at them, wounding about 100 civilians, including women and children, whereas the situation of the people of Nagorno-Karabakh with regard to food and health has worsened to the point of becoming untenable”) 21 January 1993 (“aware of the tragic situation of the 300 000 Armenian refugees who have fled the pogroms in Azerbaijan . . . [the European Parliament] [t]akes the view that the relentless blockade carried out by Azerbaijan constitutes a violation of international law and insists that the Azerbaijani Government lift it forthwith”), and 10 February 1994 (“whereas the Azerbaijani air force has resumed its bombing of civilians, particularly in the town of Stepanakert”); section 907 of the United States Freedom Support Act of 24 October 1992, still in force (“United States assistance under this or any other Act (other than assistance under title V of this Act) may not be provided to the Government of Azerbaijan until the President determines, and so reports to the Congress, that the Government of Azerbaijan is taking demonstrable steps to cease all blockades and other offensive uses of force against Armenia and Nagorno-Karabakh.”); and the US Senate Resolution of 17 May 1991 (“Whereas Soviet and Azerbaijani forces have destroyed Armenian villages and depopulated Armenian areas in and around Nagorno-Karabakh in violation of internationally recognized human rights . . . [the US Senate] condemns the attacks on innocent children, women, and men in Armenian areas and communities in and around Nagorno-Karabakh and in Armenia; condemns the indiscriminate use of force, including the shelling of civilian areas, on Armenia’s eastern and southern borders; calls for the end to the blockades and other uses of force and intimidation directed against Armenia and Nagorno-Karabakh”). The Court itself acknowledged the existence of “expulsions”, accompanied by “arrests and violence”, of the Armenian civilian population, committed by the “government forces” in Azerbaijan territory in April-May 1991 (paragraph 32 of the Sargsyan v. Azerbaijan judgment, cited above).
89 See Šilih v. Slovenia, cited above, §§ 159–163.