Tert.am presents an article by the constitutional expert Vardan Poghosyan, in which the author analyzes the 1994-1995 ceasefire agreements and their nature in the international legal. The author notes that Azerbaijan has an international obligation to comply in good faith with the 1994-95 ceasefire agreements both with respect to the Republic of Armenia and the Republic of Artsakh. From the point of view of international law, there are no grounds for Azerbaijan's assertion that it has the right to use force or threaten to use such force to ensure its territorial integrity.
The aggressions against the Republic of Artsakh unleashed by Azerbaijan in the April of 2016 and September of 2020 are gross violations of international law, which is an infringement of the prohibition of the threat or use of force, as well as the Ceasefire Agreements of 1994-1995. Neglecting both the prohibition of the threat or use of force, prescribed under Article 2 (4) of the UN Charter, and the Ceasefire Agreements of 1994-1995, Azerbaijan has declared multiple times that in case of failing to find satisfactory results through negotiations, they will settle the issue through military solutions. Such intentions were even established in the Military Doctrine, adopted by the Parliament of Azerbaijan on June 8, 2010.
The following article (note 1) reflects upon the extent to which Azerbaijan is restrained by the prohibition of the threat or use of force against Artsakh (1), as well as the aforementioned Ceasefire Agreements of 1994-1995 (2).
1. Prohibition of the Threat or Use of Force
The prohibition of the threat or use of force is prescribed under UN Charter Article 2 (4), which reads as follows: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
This principle is specified in the Friendly Relations Declaration (Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States), adopted by the UN General Assembly on 24 October 1970. The Friendly Relations Declaration directly prescribes that “Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.”
According to the UN International Court of Justice, the universal prohibition of violence is not merely imposed in compliance with the UN Charter (as a conventional norm), but is universally recognized as a rule of customary international law (note 2). As a norm of customary international law, the universal prohibition of violence both defends and restrains all non-member states of the UN as well. The prohibition of use force is agreed by many to belong to the special category of international ius cogens (note 3).
The prohibition of the threat or use of force also applies to all de facto regimes, regardless of their international recognition, and refers to the territorial boundaries of these regimes. As established under the Explanatory notеs to Article 1 (Definition of Aggression) of the United Nations General Assembly Resolution 3314 (XXIX), the term “State” “is used without prejudice to questions of recognition or to whether a Sate is a member of the United Nations” (note 4).
Provided that the Republic of Artsakh is neither a UN member nor is diplomatically recognized as a state by any other state, a question arises as to whether the universal prohibition of violence applies to the relations of the Republics of Artsakh and Azerbaijan, that is to say – can Artsakh make a reference to the universal prohibition of violence and, in case of its infringement, to its right to self-defence (UN Charter, Article 51).
The answer to this question depends on whether the Republic of Artsakh complies with the internationally recognized criteria of statehood, being a de facto state. The International law approaches this issue by establishing the following basic criteria required to be characterized as a state: a defined territory, permanent population and effective government (note 5). Furthermore, the existence of a state is not conditioned by its recognition, and non-recognition does not mean that entities that consider themselves a state do not have any international legal status. The practice of states shows that entities that actually exercise power in a certain territory for a long time are considered as partial subjects of international law.
In the case of internationally recognized states the above mentioned criteria are self-evident. With reference to those entities which consider themselves as states but lack international recognition, Jochen Frowein, an eminent German public law specialist, has established the theory of “stabilized de facto regimes (de facto states)”, which envisages two criteria attributed to states of this type: (1) effective independence of regime (effektive Unabhängigkeit) and (2) at least limited involvement of the given regime in international relations (note 6). The issue of Artsakh’s statehood should be examined on the grounds of the the criteria, developed in the doctrine of the international law, pertaining to de facto states.
a) Effective Statehood of Artsakh
After the declaration of its independence in 1991, the Artsakh Republic has never been under the de facto sovereignty of Azerbaijan. The Republic of Artsakh possesses a fully accomplished and competent state governance, including a proficient army. Its state bodies operate in compliance with the Constitution, the elaboration, adoption and content of which are in full compliance with the standards of a democratic state governed by the rule of law. The first Constitution, adopted on December 10, 2006, envisaged a semi-presidential system of government with dual (two-level) executive power. The President of the Republic was elected by the citizens for a term of 5 years with no more than two consecutive terms. The legislative power was exercised by the Parliament, formed in accordance with democratic principles and comprising 33 Deputies (Members of Parliament).
On February 20, 2017, a new Constitution (note 7) was adopted through a referendum, in accordance to which the semi-presidential system of governance was replaced by a purely presidential system. In the future too, the President of the republic will continue to be elected by the people as both the head of the state and the government, embodying the executive power. The Parliament of Artsakh has strong balancing powers in relation to the President. Not only does it possess the rights to mainstream parliamentary control over the office of the President, but it can also for political reasons express no confidence in the President by 2/3 of the votes of deputies. The Judicial power is empowered by virtue of the appointment of the judges by the Parliament, upon recommendation of the Supreme Judicial Council, and no longer by the President of the Republic. The new constitution of Artsakh establishes a wide range of modern fundamental rights and ensures guarantees for their realizations.
All presidential elections have been conducted in a competitive manner as a result of which the 4th President of the Republic of Artsakh is currently in office.
It’s worthy of notice that the Freedom House has always characterized Azerbaijan as a “non-free” state, positioning it in the lowest level of its rating of political rights and civil liberties, whereas Artsakh has been rated as “semi-free”(note 8).
b) Artsakh’s Engagement in International Relations
The Republic of Artsakh has been involved in international relations since the dawn of its existence. In addition to the OSCE, which plays the leading role in the search for ways of a Nagorno-Karabakh peace settlement, the Artsakh issue is also the subject of discussion by other international organizations (UN, Council of Europe, EU, etc.) as well.
Since 1992, Nagorno-Karabakh has had immediate participation as a conflicting party in the “Minsk Group” procedures, along with Armenia and Azerbaijan. Additionally, official Nagorno-Karabakh has frequently expressed quite independent standpoints, which differed from those of the Republic of Armenia. All Ceasefire Agreements of 1993 were signed by Nagorno-Karabakh and Azerbaijan, as parties of the conflict. From 1992 through 1997, Nagorno-Karabakh as a party of conflict participated in all negotiations pertaining to the issue of Artsakh.
All 4 UN Security Council resolutions adopted in the period of April to May, 1993 (note 9), have taken into account the fact that the Armenians of the Nagorno-Karabakh were a conflicting party.
In its very first 822 Resolution of 1993, the UN Security Council made a direct statement that the Kelbadjar District had been occupied by “the local Armenian forces”. Although the later resolutions did not involve such wording, the Security Council never made a statement on any Azerbaijani territory being occupied by the Republic of Armenia. On the contrary, under Clause 9 of the Resolution 853, adopted on 27 July 1993, the UN Security Council “Urges the Government of the Republic of Armenia to continue to exert its influence to achieve compliance by the Armenians of the Nagorny-Karabakh region of the Azerbaijani Republic with its resolution 822 (1993) and the present resolution, and the acceptance by this party of the proposals of the Minsk Group of the CSCE.”
The UN Security Council’s conviction that the military operations against Azerbaijan were conducted by the armed forces of Nagorno-Karabakh, is indubitably reflected in the resolution 884 (1993), wherein the Security Council “Calls upon the Government of Armenia to use its influence to achieve compliance by the Armenians of the Nagorny- Karabakh region of the Azerbaijani Republic with resolutions 822 (1993), 853 (1993) and 874 (1993), and to ensure that the forces involved are not provided with the means to extend their military campaign further”.
2) The Nature of the Ceasefire and its Legal Consequences
In the present situation the only valid international legal documents directly binding the conflicting parties are the 1994-1995 ceasefire agreements. It’s worth noticing that in the result of signing these documents, all 4 resolutions adopted by the UN Security Council in 1993 have become obsolete and lost any legal significance. It should also be kept in mind that they haven’t initially been adopted as binding decisions in compliance with Chapter 7 of the UN Charter.
Azerbaijan has not accomplished the basic requirement of all 4 resolutions to cease fire and all military acts of hostility, and has resorted to the military resolution of the conflict. It was the failure to meet the requirements of the resolutions that made the complete implementation of the resolutions impossible, including the withdrawal of troops, despite the certain measures taken by Artsakh to meet the requirements of the resolutions. Azerbaijan remains silent with regard to other requirements of the resolutions, namely, lifting the economic, transport and energy blockades, which haven’t been carried out by Azerbaijan either. According to the representative of Russia in the Minsk Group at that time V. Kazimirov, “in fact, all 4 UN Security Council resolutions on Karabakh were devalued. The Security Council no longer wanted to pass the fifth resolution, because it undermined its authority. He adopts resolutions, but they are not implemented. Therefore, when we worked on a ceasefire agreement, we could not work on the basis of a Security Council resolution. We were forced to come up with a different basis” (note 10). This basis appeared to be the Ceasefire Agreement of May 11, 1994 (note 11) and the subsequent Agreements of July 26, 1995 and February 4, 1995 (note 12).
The first Ceasefire Agreement of May 11, 1994 envisaged a “complete ceasefire and cessation of hostilities” starting on May 12 of the same year. Because of the failure to sign the subsequent agreement on terminating the armed conflict in the prescribed period (until May 22, 1992), on July 26, 1994 all three parties (Azerbaijan, Nagorno-Karabakh and Armenia) assumed commitment “to cease fire and maintain the regime of ceasefire until the larger Political Agreement was signed, which would provide for the complete cessation of military operations” (highlights presented by the author).
As a furtherance of these agreements, the three parties (Azerbaijan, Nagorno-Karabakh and Armenia) signed an Agreement on Strengthening the Ceasefire in the Nagorno-Karabakh conflict, “with the aim of creating more favorable conditions for the advancement of the peace processes” (note 13).
The international law distinguishes between the suspension and termination of military hostilities. Until the World Wars, an armistice meant an agreement designed to bring about a mere suspension of hostilities between belligerent parties. Whereas in modern international law, the essence of the armistice agreements has undergone drastic transformations. “A modern armistice agreement divests the parties of the right to renew military operations at any time and under any circumstances whatsoever. By putting an end to war, an armistice today does not brook resumption of hostilities as an option” (note 14). This becomes evident also in the July 26, 1994 Ceasefire Agreement text, which directly emphasizes that the ceasefire regime shall be maintained “up until the larger Political Agreement is signed” (highlights presented by the author).
Indeed, a ceasefire agreement is not equivalent to a peace treaty. The latter goes beyond the framework of ending a war and ensures further establishment or restoration of diplomatic, economic and other relations between the conflicting sides.
The above narrative suggests that the 1994-1995 Agreements are binding documents of international law and prohibit all parties involved to undertake any actions in violation of their content, notably resolving any issue via military measures.
After its act of aggression in 2016, Azerbaijan attempted to renounce the 1994 Ceasefire Agreement, interpreting them as “denounced” by Armenia (note 15). Meanwhile, Azerbaijan wished to present the April 5, 2016 unwritten agreement between Armenia and Azerbaijan on bilateral ceasefire as the single legal ground for the ceasefire. In response, the Russian Federation made a resolute statement in the official note addressed to the Permanent Mission of Azerbaijan to the OSCE, that the 1994-1995 Agreements “have no fixed term and continue to be considered a basis for the cessation of hostilities, as in the past” (note 16). The Armenian Ministry of Foreign Affairs also affirmed the same standpoint in a statement made on April 25, 2016 (note 17). Such a resolute view fully resonates with the joint standpoint of the three Co-Chairs of ONCE Minsk Group (note 18). These presented arguments provide additional evidences to confirm that the Ceasefire Agreements of 1994-1995 pursued aims of termless cessation of military operations.
Consequently, Azerbaijan bears international obligations both before the Republic of Armenia and the Republic of Artsakh to fulfill the requirements of the 1994-1995 Ceasefire Agreements in good faith. Therefore, Azerbaijan's assertion that it is entitled to to resort to threat of force or to use force in order to ensure its territorial integrity has no grounds from the point of view of international law.
Back in 2016, Professor Otto Luchterhandt, has made the following conclusions on his work: “As a result, it should be stated that the assault of Azerbaijan on Nagorno-Karabakh on April 2, 2016 is a violation of the universal prohibition of violence. This is substantiated by the fact that (a) the enactment of the prohibition equally applies to the relation of Azerbaijan with Nagorno-Karabakh, (b) the Republic of Nagorno-Karabakh/Artsakh possesses a partial status of a subject of international law, as a de facto state or a de facto regime or, at least, as a signatory party in the Ceasefire Agreement of May 11, 1994, and (c) the Ceasefire Agreement of May 11, 1994 and the subsequent trilateral agreements signed prior to 1995, were in effect at the moment of the attack launched by Azerbaijan”.
These assumptions are equally valid today and are completely applicable to the context of the aggression unleashed by Azerbaijan on September 27, 2020.
1. The article was written taking into account the researches and publications, made by the prominent Germany specialist in the field of public law, Professor Otto Luchterhandt in 2010 to 2017.
2. Judgments by International Courts of Justice - Nicaragua v. United States of America, 27.6.1986, para. 176; Islamic Republic of Iran v. United States of America, 6.11.2003, para. 51.
3. O. Dörr, Use of Force//Max Planck Encyclopedia of Public International Law, Oxford University Press, հատոր 10, 2012, P. 607, A. Randelzhofer/O. Dörr, Art.2(4)//Bruno Simma (ed.) The Charter of the United Nations, 2. edition, Oxford 2002, P. 203 (mn. 1).
4. https://www.un.org/ru/documents/decl_conv/conventions/aggression.shtml. See also J․ Frowein, De Facto Regime//Max Planck Encyclopedia of Public International Law, Oxford University Press, Vol. 2, 2012, P. 1053.
5. James Crawford, Brownlie's principles of public international law, 8. edition, Oxford 2012, P. 128.
6. Jochen A. Frowein, Das de facto-Régime im Völkerrecht, Köln/Berlin 1968; стр. 52, J․Frowein, De Facto Regime//Max Planck Encyclopedia of Public International Law, Oxford University Press, Vol 2, 2012, P. 1052-1055.
9. Resolution 822 (1993), 30.4.1993, https://undocs.org/en/S/RES/822(1993), Resolution 8532 (1993), 29.7.1993, https://undocs.org/en/S/RES/853(1993), Resolution 874 (1993), 14.10.1993, https://undocs.org/en/S/RES/874(1993) и Resolution 884 (1993), 12.11.1993, https://undocs.org/en/S/RES/884(1993)
10. Московский комсомолец, 25․04․2016, N 27089.
12. Московский комсомолец, 25․04․2016, N 27089.
14. Y. Dinstein, Armistice//The Max Planck Encyclopedia of Public International Law, Oxford University Press, Vol. 1, 2012, P. 641.
18. Joint Statement of the Minister of Foreign Affairs of the Russian Federation, Secretary of State of the United States of America and State Secretary for Europe Affairs of France, Vienna, May 16, 2016, https://www.mid.ru/ru/maps/az/-/asset_publisher/0TeVwfjLGJmg/content/id/2283221?p_p_id=101_INSTANCE_0TeVwfjLGJmg&_101_INSTANCE_0TeVwfjLGJmg_languageId=en_GB
19. Otto Luchterhandt, Der Krieg Aserbaidschans gegen Berg-Karabach im April 2016 aus völkerrechtlicher Sicht//Archiv des Völkerrechts, Bd. 55, 2017, P. 226.