Legal Status of Nagorno-Karabakh and other Occupied Territories

1. Legal Status of Nagorno-Karabakh and other Occupied Territories Relevance of the Security Council Resolutions 822, 853, 874, 884 to the Peaceful Settlement Javid Gadirov Assistant Professor Zirve University

2. Overview • History (legal background) • Main issues and principles • UNSC Resolutions – ambiguities, legal force, obligations of third states • Remedial secession • Future legal battles

3. History • 1826 – Treaty of Turkmenchay • Northern Azerbaijan Khanates (including Karabakh) transferred to Russian Empire. • 28 May 1918 – Azərbaycan Xalq Cümhuriyyəti

4. Soviet Azerbaijan • 28 April 1920 – XI Red Army joined Azerbaijan to Soviet Union • 1921 - first attempt to transfer Karabakh • Decision of Plenum of Kavburo from 5 July 1921 on Karabakh • Stalin, Ordzhonikidze, Makharadze, Orakhelashvili, Kirov, Nazaretyan, Myasnikov, Narimanov

5. First attempt… • KavBuro decided “…to retain Nagorno-Karabakh within Azerbaijan SSR with wide regional autonomy with administrative center in city of Shusha…”

6. Second attempt… • 1 December 1989 the Supreme Council of the Armenian SSR adopted the resolution "On Reunification of the Armenian SSR and Nagorno-Karabakh” • 10 January 1990 the Supreme Council of USSR adopted Decision on unconstitutionality of this and some other acts of the Supreme Council of the Armenian SSR

7. Independence of Azerbaijan • 18 October 1991, Constitutional Act on State Independence of the Republic of Azerbaijan: • Azerbaijan proclaimed itself successor to the first Republic of 1918-20 • Recognized 1920 actions of USSR as aggression under international law and compared it to XIX century annexation by the Russian Empire • 29 October 1991 Azerbaijan applied to United Nations and was accepted as a full member.

8. Military Conflict • Bishkek Ceasefire Protocol 12 May 1994

9. Applicable Principles • Prohibition of aggressive war (pacific settlement) • Utipossidetisjuris • Inviolability of borders • Right to remedial secession • Inadmissibility of the use of force for the acquisition of territory • Protection of fundamental human rights (primacy of individual rights)

10. Four UNSC Resolutions S/RES/ 822 (1993) 30 April 1993 S/RES/ 853 (1993) 29 July 1993 S/RES/ 874 (1993) 14 October 1993 S/RES/ 884 (1993) 12 November 1993

11. Aggression or not? • Chapter VI: Pacific settlement of disputes • Chapter VII: Action with respect to threats to the peace, breaches of the peace, and acts of aggression • Article 39 • “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

12. Ambiguities in the Text? • Resolutions emphasize values of sovereignty and territorial integrity of the Azerbaijani Republic • But also “Calls upon the Government of Armenia to use its influence to achieve compliance by the Armenians of the NagornyKarabakh region of the Azerbaijani Republic”

13. Ambiguities - cont • “unilateral withdrawal of occupying forces” • is it forces of the Republic of Armenia or “Armenians of the NagornyKarabakh region of the AR”? • Kelbadjar, Agdam, Zangelan and Goradiz and “other recently occupied areas of Azerbaijan” • does this include NK region or only territories outside?

14. Binding Force of Resolutions • Article 25 • “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” • Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), International Court of Justice, June 21, 1971

15. South West Africa case “113. It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view.Article 25 is not confined to decisions in regard to enforcement action but applies to ‘the decisions of the Security Council‘ adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter.”

16. Obligations of Third States • "The member States of the United Nations are...under obligation to recognize the illegality and invalidity of South Africa's continued presence in Namibia. • "obligation to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia" • "obligation to abstain from entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia" • "obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the Territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such agents already there" • "no State which enters into relations with South Africa concerning Namibia may expect the United Nations or its Members to recognize the validity or effects of such relationship, or of the consequences thereof“ (119-127)

17. Right to secession • Reference re Secession of Quebec, [1998] 2 S.C.R. 217 • "whether a right to unilateral secession exists under international law" • "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. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination."

18. Kosovo case • Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, 22 July 2010 • ICJ declined to consider “remedial secession” • “general international law contains no applicable prohibition of declarations of independence” (84)

19. Kosovo case - cont • With regard to SC resolutions condemning certain declarations of independence, at 81: • “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).”

20. No Legal Vacuum • Does SC preempt other legal action? • Can ICJ consider legality of SC actions? • European Court of Human Rights? • International Criminal Court? • National courts?

21. No legal vacuum • Minas Sargsyan against Azerbaijan, Admissibility Decision 14/12/2011 • ElkhanChiragov and others against Armenia, Admissibility Decision 14/12/2011 • Individual criminal responsibility

22. TEŞEKKÜRLERTHANK YOU