The two international law principles that are constantly used within the Artsakh/ Nagorno Karabakh/ case are self-determination and territorial integrity.
Territorial integrity and self-determination of nations are two principles of the international law, which raise many debates because of a supposed contradiction. Territorial integrity refers to the protection of an independent state’s territory from aggression of other states, while self-determination is defined as a right of nations to freely decide their sovereignty and political status without external compulsion or outside interference. Thus, territorial integrity is closely connected with a basic order in interstate relations among sovereign independent states, while self-determination is a fundamental human right and refers to the relations between an independent state and a people.
The principle of territorial integrity
The birth of the modern approach to the principle of territorial integrity (uti possidetis) dates back to 1648 Peace of Westphalia. The territory of the state was considered to be the main factor, determining the security and wealth of the state. The principle was included in Article 10 of the League of Nations Covenant, by which the members of the League “undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.” After WWI the principle was stated in several declarations and treaties. The importance of this principle is very great in interstate relations – to protect the state territory against foreign aggression. It is based on the principle of non-interference in the internal affairs of states and achieving and maintaining international security and stability in the world through establishing status quo.
This principle was formulated in the Charter of the UN, prohibiting the threat or use of force against the territorial sovereignty of states and its political independence. Among the documents that speak about the concept is the 1960 UN Declaration that states: “any attempt aimed at the partial or total disruption of the national unity or territorial integrity of a country is incompatible with the purposes and principles of the Charter of the UN.” In the 1970 declaration of International Law principles the territorial integrity was not wholly mentioned, but its several parts were explained. The 1975 Helsinki Final Act implies that frontiers can only be changed, in accordance with the International Law, by peaceful means and agreements.
The roots of the self-determination concept go back to the political ideas of Aristotle, later John Locke and Jean-Jacques Rousseau. The core philosophical meaning of the principle was that every human being has a right to control his/her own destiny. The concept was also included in Marxist doctrine as a right of working class to liberate from capitalism. The further development of the idea brought to its political implications after WWI. The advocates of the principle in its political aspect, as paradoxical as it sounds, were Vladimir Lenin and Woodrow Wilson. Although not explicitly the concept of self-determination is connected with the American president Woodrow Wilson and his famous Fourteen Points. The Soviet leader Vladimir Lenin was another advocate of the principle and was arguing not for “the self-determination of peoples and nations in general, but the self-determination of the proletariat as it existed within every nationality.”
The traces of the concept can be found in the United States Declaration of Independence (1776), which states the natural right of individuals to choose their own form of government. Interestingly, the declaration mentions “… when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.” Another mention of the idea is in the Joint Declaration of the US president and UK prime minister of 14 August 1941 – the Atlantic Charter. Point second of the Charter mentions the territorial changes that should be only in accord with the freely expressed wishes of the peoples concerned, while the parties announce to “respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them.”
The term self-determination of people is mentioned officially in the Charter of the United Nations (in Article 1, paragraph 2 and Article 55). It is also formulated in the UN General Assembly Resolutions, International Covenants on human rights, as well as in other documents. Every year, since 1980, the General Assembly of the UN has adopted a resolution on the right of self-determination. The right of self-determination has also been recognized in other international and regional human rights instruments such as Part VII of the Helsinki Final Act 1975 and Article 20 of the African Charter of Human and Peoples’ Rights, as well as the Declaration on the Granting of Independence to Colonial Territories and Peoples, etc.
Within the concept, there are internal and external self-determination. While the internal self-determination is about the status inside the boundaries of the existing state, the external self-determination is about secession and thus changes of boundaries and territorial integrity.
According to modern international law the right to self-determination did not involve necessarily a right to independence, but rather the recognition of “every right accorded to minorities under international convention as well as national and international guarantees consistent with the principles of international law” in other words: internal self-determination. The UN 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among States underlines that territorial integrity is defended only when the state performs its obligations to provide a “government representing the whole people belonging to a territory without distinction as to race, creed or color.” Once the latter guarantee fails, the people shall have the right to self-determination, even if it lends itself to secession.
Further, the right to secession does not arise in each case of oppression or discrimination; the oppression and discrimination must cross a certain threshold that threatens the survival of the group. Secession as a response to gross human rights violations has been termed as remedial secession – “secession accomplished in an attempt to remediate an ongoing situation.”
Not going deep into the analysis of remedial secession, it should be noted that state and judicial practice demonstrates the existence of the right to remedial secession conditioned upon some requirements. The most important case related to secession is the Quebec case. In its decision (1998) the Supreme Court of Canada indicated that when “a definable group is denied meaningful access to the government to pursue their political, economic, social and cultural development they are entitled to a right to external self-determination.” Although the Court also asserted that, a right to unilateral secession arises only in the extreme cases and under very carefully defined circumstances. In other words, if internal self-determination (regarding democratic values, culture, language, economy, stability, security etc.) is not met, the people have the legitimate right to external self-determination.
This approach of the Canadian Court, however, was not new in international law. The seeds of remedial secession and its requirements have been planted in a famous Åland Islands Case. Here the International Committee of Jurists “articulated the following requirements for justifiable secession when the parent state opposes it: 1) those wishing to secede were “a people”; 2) they were subject to serious violations of human rights at the hands of the parent state; and 3) no other remedies were available to them.”
Another important judicial case was connected with the Declaration of Independence of Kosovo. Again, without going deep into the legal analysis, it should be mentioned that the International Court of Justice, in essence, accepted the legality of secession. Moreover, in a separate opinion presented by some judges in a case when a group is subjected to systematic repression, crimes against humanity, persecution, discrimination or tyranny by its parent state, people are entitled to external self-determination. Another important implication connected with the case is that in the opinio juris presented by the states, 17 out of 43 recognized or did not reject the existence of the right to remedial secession.
The fact that the population of Bangladesh (East Pakistan) was subjected to an excessive violence and genocide was another crucial moment for recognizing the legitimacy of Bangladesh declaration of independence in 1971 by the international community.
Given the violent history of the conflict, persistent persecutions, massacres and discrimination against the Armenians of Artsakh, more recently the 2020 war and the violence against the civilians, persistent eradication of Armenian cultural heritage in order to erase any trace of Armenian presence and the rhetoric from Baku, the threat of ethnic cleansing and genocide is very real and imminent. The provisional verdict by the ICJ on 7 December 2021 is quite indicative of the long list of flagrant human rights violations committed by Azerbaijan against the Armenian population of Artsakh. Thus, even if considering the Artsakh issue within the self-determination territorial integrity dilemma, a remedial secession of Artsakh from an autocratic, totalitarian Azerbaijan is not only in full conformity with international law, both explicitly and normatively, but it is also the only viable solution to avoid the ethnic cleansing or a new genocide against the indigenous Armenian population.
For the full article: http://agmipublications.am/index.php/ijags/article/view/71/74
Dr. Edita Gzoyan,
AGMI Deputy Scientific Director