Appendices – Artsakh

  • The Territorial Integrity Norm: International Boundaries and the Use of Force [1]
  • THE CASE FOR CANADA’S RECOGNITION OF
    THE REPUBLIC OF ARTSAKH (NAGORNO-KARABAKH)
    AS A MEASURE OF THE RESPONSIBILITY TO PROTECT[2]
  • INTERNATIONAL LAW AND THE CRITERIA FOR STATEHOOD[3] 

The Territorial Integrity Norm: International Boundaries and the Use of Force

library.fes.de/libalt/journals/swetsfulltext/10676368.pdf
Mark W. Zacher
Cursed be he that removeth his neighbor’s landmark.
—Deuteronomy 27:17
Good fences make good neighbors.
—Robert Frost, Mending Wall
In the late twentieth century many international relations scholars and observers
have commented on the declining importance of interstate territorial boundaries for
a variety of national and transnational activities.1 Concurrently, something very
signiŽ cant has been happening in international relations that raises questions
concerning judgments of the decreasing importance of boundaries: the growing
respect for the proscription that force should not be used to alter interstate
boundaries—what is referred to here as the territorial integrity norm.2 The development
of a norm concerning respect for states’ territoriality is particularly important
because scholars have established that territorial disputes have been the major
I am grateful to the Institute of International Relations at the University of British Columbia and the
Social Sciences and Humanities Research Council of Canada for Ž nancial assistance. I particularly thank
Robert Jackson for many stimulating discussions and insightful comments concerning the stabilization of
boundaries. I also thank the following for their comments on earlier drafts: Kai Alderson, David
Armstrong, William Bain, Michael Barnett, Barry Buzan, Ron Deibert, Raymond Duvall, Paul Evans,
Kal Holsti, Brian Job, Robert Keohane, Barbara Koremenos, David Long, John Ruggie, John Owen,
Allen Sens, Sasson Sofer, George Thomas, Monica Toft, John Vasquez, Michael Webb, Robert Wolfe,
the co-editors of IO, and three anonymous reviewers. I beneŽ ted from discussions of earlier drafts of this
article with colleagues at the University of British Columbia, University of Chicago, Hebrew University,
McGill University/University of Montreal, Panteios University, University of California Los Angeles,
and University of California Berkeley. I am grateful to Craig Murley for his research assistance.
1. See Ohmae 1990 and 1995; Rosecrance 1986 and 1996; Ruggie 1993; Rosenau 1990; Elkins 1994;
and Hirst and Thompson 1996.
2. A norm is generally deŽ ned as “a standard of appropriate behavior for actors of a given identity”
(Finnemore and Sikkink 1999, 251) and an international regulatory norm is strong when it is respected
and viewed as legally binding by the great majority of states.
International Organization 55, 2, Spring 2001, pp. 215–250
© 2001 by The IO Foundation and the Massachusetts Institute of Technology
cause of enduring interstate rivalries, the frequency of war, and the intensity of war.3
After reviewing studies on interstate wars, John Vasquez wrote that “Of all the
issues over which wars could logically be fought, territorial issues seem to be the
ones most often associated with wars. Few interstate wars are fought without any
territorial issue being involved in one way or another.”4
In this article I trace the dramatic change in attitudes and practices of states in the
Westphalian international order concerning the use of force to alter interstate
boundaries. I also explore the factors that have shaped this historical change. Of
course, theWestern state system did not expand to most of Asia and Africa until the
twentieth century, and even the Latin American states were marginal to the system
in the nineteenth century. In the Ž rst section I brie y outline the attitudes and
practices of states regarding territorial boundaries from the seventeenth century until
World War II. In the second section I focus on the remarkable changes in beliefs and
practices from World War II until the present. In the third section I explore the roots
of the territorial integrity norm. States’ motivations for accepting the territorial
integrity norm have been both instrumental and ideational, and the importance of
different motivations has varied among groups of states. Also, the coincidence of a
number of conditions has been crucial for the growing strength of the norm.
International Boundaries from the Seventeenth to the Early
Twentieth Century
Political life has not always disclosed a clearly deŽ ned system of international
boundaries. The medieval world did not have international boundaries as we
understand them today;5 authority over territorial spaces was overlapping and
shifting. The political change from the medieval to the modern world involved the
construction of the delimited territorial state with exclusive authority over its
domain. Even at that, precisely surveyed national borders only came into clear view
in the eighteenth century.6 In the words of Hedley Bull, the practice of establishing
international boundaries emerged in the eighteenth century as “a basic rule of
co-existence.”7
The birth of the modern interstate system is often dated at the 1648 Peace of
Westphalia, although key features of the system emerged gradually and  uctuated
in strength before and after 1648. Initially, the legitimacy of interstate borders was
deŽ ned in dynastic terms: state territory was the exclusive property of ruling
families, and they had an absolute right to rule their territories. But this international
order did not re ect any absolute right to particular territory that could legitimately
3. See Holsti 1991; Goertz and Diehl 1992; Vasquez 1993, 123–52; Huth 1996; Hensel 1999; and
Vasquez and Henehan 2001.
4. Vasquez 1993, 151.
5. Clark 1961, chap. 10.
6. Clark 1972, 144.
7. Bull 1977, 34–37.
216 International Organization
change hands by inheritance, marriage, war, compensation, and purchase.8 In these
early centuries of the Westphalian order territory was the main factor that determined
the security and wealth of states, and thus the protection and acquisition of
territory were prime motivations of foreign policy.Most wars, in fact, concerned the
acquisition of territory, and most of these wars led to exchanges of territory; this
practice continued until the middle of the twentieth century (see Table 1). These
practices were re ected in the legal norm concerning the legitimacy of conquest. To
quote the eminent international legal scholar Lassa Oppenheim writing in 1905, “As
long as a Law of Nations has been in existence, the states as well as the vast majority
of writers have recognized subjugation as a mode of acquiring territory.”9
In the early centuries of the Westphalian system the populations of the early
modern states were often culturally diverse and politically disorganized. Many
people were not collectively identiŽ ed by state borders that moved back and forth
without much regard for them.10 The practice of drawing boundaries in disregard of
the people living in the territories was extended from Europe to the rest of the world
during the age of Western colonialism from the sixteenth through the nineteenth
centuries. This was often carried out with little attention to the cultural and ethnic
character of the indigenous peoples of the non-European world. Yet it was the
borders that were initially drawn and imposed by Western imperialists that later
became the acceptable reference for articulating anticolonial demands for selfdetermination
and independent statehood.11
The nineteenth century was, of course, the age of nationalism, which was spurred
by the French Revolution and Napoleon’s support for popular sovereignty and
national self-determination. These intellectual currents began to alter peoples’ views
concerning the legitimacy of territorial conquests. “From the middle of the nineteenth
century the current of opinion, in uenced by the growing belief in national
self-determination, was moving against the legitimacy of annexation outside the
colonial sphere, when effected without the consent of the inhabitants.”12 Sharon
Korman referred to this change in attitudes as the beginning of an “important change
in the moral climate of international relations.”13 This moral climate, with its clear
democratic thrust, however, had con icting implications for the stability of boundaries.
On the one hand, nationalism supported the precept that a territory belonged
to a national grouping and it was wrong to take the land from a nation. On the other
hand, nationalism provided grounds for a national grouping in one state trying to
secede to form an independent state or to unite with its ethnic compatriots living in
other states. In fact, nationalism had a more disruptive than pacifying effect on
international relations in the late nineteenth and early twentieth centuries, as was
8. Holsti 1991.
9. Quoted in Korman 1996, 7. Juxtapose this with the statement of Professor Lauterpacht in the 1955
edition of Oppenheim’s International Law in Korman 1996, 179.
10. Clark 1972, 143.
11. See Jackson and Rosberg 1982; and Korman 1996, 41–66.
12. Korman 1996, 93.
13. Ibid., 39 (italics added). Malcolm Anderson has spoken of “the sacralization of homelands” as a
result of the growth of nationalism. Anderson 1996, 3.
Territorial Integrity 217
witnessed in the wars surrounding the uniŽ cation of the German and Italian peoples
and in the division of the Hapsburg, Hohenzollern, and Ottoman empires into
numerous national states.14
14. See Cobban 1969; and Mayall 1990.
TABLE 1. Interstate territorial wars, 1648–2000
a. Wars by historical era
Period
Territorial
con icts
Con icts resulting
in redistribution
of territory
Con icts in which
territory was
redistributed
Territorial
redistributions
per year
1648–1712 19 15 79% 0.23
1713–1814 30 24 80% 0.24
1815–1917 25 20 80% 0.19
1918–1945 18 16 88% 0.59
1946–2000 40 12 30% 0.22
b. Wars by half century
Period
Territorial
con icts
Con icts resulting
in redistribution
of territory
Con icts in which
territory was
redistributed
Territorial
redistributions
per year
1651–1700 14 11 79% 0.22
1701–1750 16 14 88% 0.28
1751–1800 12 8 67% 0.16
1801–1850 13 11 85% 0.22
1851–1900 14 10 71% 0.20
1901–1950 26 23 89% 0.46
1951–2000 37 10 27% 0.20
Sources: Data used to identify territorial wars between 1648 and 1945 is from Holsti 1991. Holsti
classiŽ es wars according to twenty-two issues. Six of these are clearly concerned with control over
territory: territory, strategic territory, colonial competition, empire creation, maintaining integrity of
empire, and national uniŽ cation. Additional information on these con icts was derived from a number
of secondary sources, including Goertz and Diehl 1992; Goldstein 1992; McKay and Scott 1983; and
Taylor 1954. Wars are classiŽ ed by their beginning date.
Information on territorial wars between 1946 and 2000 was also obtained from a large number of
secondary sources, including Bercovitch and Jackson 1997; Goertz and Diehl 1992; Kacowicz 1994;
Huth 1996; and Wallensteen and Sollenberg 1998. Goertz and Diehl focus on territorial con icts
where there were exchanges of territory; Kacowicz examines cases of peaceful territorial change; and
Huth includes territorial disputes that involved and did not involve international violence. The Correlates
of War list of con icts was also consulted. It includes territorial wars with over one thousand
deaths. Singer and Small 1982. There were Ž ve con icts between 1946 and 2000 that led to minor
border alterations and are not included under “Con icts resulting in redistribution of territory.” For
descriptions of the territorial aggressions between 1946 and 2000, see Table 2.
218 International Organization
Three interrelated territorial issues during and at the end of World War I were
whether the victorious states should be able to take territory from the defeated,
whether states should commit themselves to respect the territorial integrity of other
states, and whether national self-determination should take precedence over respect
for existing state boundaries in shaping the territorial order. On the Ž rst issue, in the
early years of World War I the major states still supported the right of victorious
states to realize territorial gains, and this was re ected in their secret treaties
concerning territorial exchanges at the end of the war. This perspective was altered
signiŽ cantly following the United States’ entry into the war, the Russian revolution
in 1917, and popular pressure against territorial annexation in some countries.15 In
the 1919 Versailles settlement the victorious states only obtained small territorial
concessions in Europe, although they realized some signiŽ cant gains by dividing up
the colonies of the defeated powers. Still, these colonies were declared League
Mandates, and the new colonial powers were implicitly obligated to prepare the
colonial peoples for self-governance—especially in the case of the former Turkish
territories.16 As Korman has noted, while “It cannot be concluded . . . that the
distinguishing feature of the territorial settlement of 1919 was the abandonment of
the legal doctrine of the right of a victor to dispose of the territory of the vanquished
by right of conquest . . . from the perspective of the evolution of attitudes towards
the right of states to acquire territory by conquest or military victory, the First World
War undoubtedly marked a moral turning point.”17
On the second issue, the obligation to uphold the territorial integrity of all states,
President Woodrow Wilson was the strongest protagonist. His famous “Fourteenth
Point” spoke of “speciŽ c covenants for the purpose of affording mutual guarantees
of political independence and territorial integrity to great and small states alike.”18
Such a revolutionary proposal took the form of Article 10 of the League of Nations
Covenant, whose approval really constituted the beginning of states’ formal support
for the territorial integrity norm. It read: “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.”
On the third question of the weight that should be given to the right of national
self-determination in redrawing international boundaries, there was clearly tension
within democratic governments between protagonists of national self-determination
and respect for existing boundaries; and the former generally lost. Even President
Wilson, who was viewed as the leader of the national self-determination cause,
came out fundamentally on the side of respect for territorial integrity. National
self-determination for ethnic nations was not mentioned in the covenant, and at the
Versailles conference self-determination for ethnic nations was only applied to some
of the territories of the defeated states in World War I.19 Overall, recognition of the
15. Korman 1996, 132–36.
16. See Article 22 of the League Covenant; Claude 1964, 322–28; and Korman 1996, 141–42.
17. Korman 1996, 161, 132–78.
18. See Zimmern 1939, 199; Egerton 1978; and Knock 1992.
19. Franck 1990, 154– 62.
Territorial Integrity 219
territorial boundaries of juridical states gained signiŽ cant support in post–World
War I settlements.
Following the World War I peace settlements, the territorial integrity norm was
supported in several multilateral declarations and treaties. The 1928 General Treaty
for the Renunciation of War (better known as the Kellogg-Briand Pact) certainly
included support for the prohibition against territorial aggressions, although it did
not explicitly focus on territorial aggrandizement.20 The norm was then directly
supported by the League’s backing for the Stimson Doctrine in 1931, which denied
the legitimacy of territorial changes obtained by force.21
Despite broad backing for the norm in these multilateral declarations, the
supportive political conditions for maintaining the territorial status quo during the
interwar decades were not as strong as many leaders hoped. First of all, there was
the problem of inconsistency and inequity in some of the 1919 settlements that
evoked dissatisfaction in a number of countries. For example, for entering the war
on the side of the allies the Italians were given a piece of formerly Austro-Hungarian
territory where few Italians lived. This was an obvious throwback to a past era when
territories were exchanged with little attention to the local populations. Far more
signiŽ cant was the division of the German nation, leaving millions of Germans
residing in the new or reborn states of Czechoslovakia and Poland.22 Second, by the
1930s the great powers were divided in their commitment to the territorial integrity
norm, and the supporters lacked the commitment to use force to uphold states’
territorial boundaries. In particular, Britain, France, and the United States stood by
and tolerated the territorial expansionism of Japan, Germany, and Italy before they
Ž nally met these aggressive powers with military force.
At the end of World War II the Western Allied Powers exhibited very strong
support for the integrity of interstate boundaries. With one exception they did not
request or obtain sovereignty over any territories that belonged to the defeated
powers, although they did obtain some UN Trust Territories that were formerly
colonies of Japan and Italy and that they were obliged to bring to independence.The
exception was the right of the United States to maintain control over some of the
PaciŽ c islands that formerly belonged to Japan.23 The same approach toward
territorial gains, however, was not true for the Soviet Union, which continued to
operate with a classical view of boundaries, namely, that the victors in wars could
claim territorial spoils. The Baltic states were integrated into the Soviet Union by
Stalin against the wishes of their populations and without the recognition of major
Western powers. The Soviet Union also absorbed parts of Poland, Germany,
Finland, Rumania, the southern half of Japan’s Sakhalin Island, and Japan’s Kurile
Islands. In addition, the territory of postwar Germany was realigned and reduced.
These changes were clearly reminiscent of the outcomes of wars in earlier centuries,
but they were the last major diplomatic developments in Europe that blatantly deŽ ed
20. Korman 1996, 192–99.
21. Stimson and Bundy 1948, 227–60.
22. Franck 1990, 154–59.
23. See Korman 1996, 176; and Claude 1964, 339– 40.
220 International Organization
the consent principle in the determination of international boundaries.24 Finally,
despite most countries’ accession to the territorial gains of the Soviet Union, all
countries at the 1945 San Francisco conference acceded to the obligation to respect
existing boundaries in the UN Charter: “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.”25
The Evolution of the Territorial Integrity Norm Since 1945
General Legal and Declaratory Developments
The UN Charter of 1945, as noted, afŽ rmed states’ obligation not to use force to
alter states’ boundaries. This same respect for the borders of juridical entities
in uenced the UN’s approach to de-colonization. The colonial territory, which was
often artiŽ cial in terms of delimiting ethnic nations, became the frame of reference
for making and responding to claims for self-determination and political independence.
26 The 1960 UN Declaration on Granting Independence to Colonial Countries
and Peoples made clear that it was existing colonies, and not ethnic groups, that
were eligible for independence. Concerning “dependent peoples,” it stated that “the
integrity of their national territory shall be respected.” It then proclaimed that “any
attempt aimed at the partial or total disruption of the national unity or territorial
integrity of a country is incompatiblewith the purposes and principles of the Charter
of the United Nations.”27 In 1970 the UN General Assembly approved a comparable
normative statement in the Declaration of Principles of International Law Concerning
Friendly Relations and Cooperation Among States.28 There is clearly no
ambiguity as to whether these major UN declarations supported respect for the
territorial integrity of juridical states and existing colonies. To quote Michael
Barnett and Martha Finnemore, “The UN encouraged the acceptance of the norm of
sovereignty-as-territorial-integrity through resolutions, monitoring devices, commissions,
and one famous peacekeeping episode in the Congo in the 1960s.”29
Apart from reviewing UN normative statements, it is important to look at
developments relating to respect for international boundaries in several regional
organizations. The charters of the Arab League and Organization of American
States, which were approved in 1945 and 1948, respectively, contained provisions
supportive of the territorial integrity of member states, but the issue was not
24. Korman 1996, 161–78. The new German-Polish border subsequently acquired legitimacy. The
need to recognize this border was made abundantly clear to Chancellor Helmut Kohl by Germany’s
Western allies in 1990 when he voiced a desire to relocate the border. Fritsch-Bournazel 1992, 102–11.
25. Article 2 (4). On debates over whether the UN prohibition allows any exceptions, see Korman
1996, 199–229.
26. Jackson 1993.
27. Declaration on Granting of Independence to Colonial Countries and Peoples, UNGA res. 1514,
1960.
28. Declaration of Principles of International Law Concerning Friendly Relations and Cooperation
Among States, UNGA res. 2625, 1970.
29. Barnett and Finnemore 1999, 713 (italics in original).
Territorial Integrity 221
highlighted by the founding member states.30 Several decades afterwards, however,
the Organization of African Unity (OAU) and the Conference on Security and
Cooperation in Europe (CSCE) adopted strong and well-publicized stands in favor
of the sanctity of existing state boundaries. The 1963 OAU Charter contains a strong
article in support of territorial integrity (Article 3), but a much more speciŽ c
statement was adopted by the Assembly of Heads of State and Government in 1964
after both Morocco and Somalia had launched wars of territorial revisionismagainst
neighboring states. All member states except Morocco and Somalia approved a
resolution calling on members “to respect the borders existing on the achievement
of national independence.”31
In 1975 the CSCE reiterated the same principle in the Helsinki Final Act:
“Frontiers can [only] be changed, in accordance with international law, by peaceful
means and by agreement.” Separate bilateral treaties between West Germany and its
major Communist neighbors (East Germany, Poland, and the Soviet Union) that
preceded and anticipated the Helsinki agreements committed the parties to “respect
without restriction the territorial integrity” of each state and “reafŽ rm[ed] the
inviolability of existing boundaries.”32 At the end of the ColdWar the 1990 Charter
of Paris for a New Europe reiterated exactly the same principle, as have all
subsequent conferences concerning international boundaries, including the 1995
Dayton peace treaty that settled the wars in Croatia and Bosnia-Herzegovina.33
One other development should be noted with regard to attitudes and practices
within Europe and the Western community more generally. In the 1990s both the
European Union (EU) and NATO proclaimed that all new members must have
accords with contiguous states as to their borders. This has necessitated that the East
European countries aspiring to membership sign boundary treaties with their
neighboring states—sometimes at the cost of sacriŽ cing long-held dreams of
absorbing parts of these neighboring countries.34 In 1999 EU leaders agreed that all
candidates should submit outstanding territorial disputes to the International Court
of Justice “in a reasonable period of time” and that the leaders would review
outstanding disputes by 2004 at the latest.35 Overall, these policies have added to the
stability and legitimacy of the European territorial order.
The Ž fteen successor states of the Soviet Union have also followed the Western
countries in supporting their existing boundaries. The Commonwealth of Independent
States (CIS) has supported the principle of territorial integrity in their main
constitutional documents. In part their support for the territorial integrity norm is
attributable to pressure from the Western countries, especially through the Organization
for Security and Cooperation in Europe (OSCE), but the great majority of
30. Zacher 1979, 189, 165.
31. Ibid., 129.
32. Maresca 1985, 86–87.
33. See Ullman 1996; and Holbrooke 1998. The Dayton Agreement can be found at 7 http://
www1.umn.edu/humanrts/icty/dayton8 . See particularly Articles 1 and 10.
34. DonaldM. Blinken and Alfred H. Moses, Hungary-Romania Pact: Historic but Ignored, The Daily
Yomuri (Tokyo), 21 September 1996, 11.
35. Financial Times (London), 15 December 1999, 3.
222 International Organization
these countries have recognized that respect for inherited boundaries (the principle
of uti possidetis) is in their mutual interest.36
Territorial Aggressions Since 1946: International
Responses and Outcomes
Prior to discussing the patterns of territorial wars in the post-1945 period I review
some data on territorial wars since the seventeenth century because they highlight
the marked changes in international practices in the late twentieth century. Table 1
contains data on international territorial wars for Ž ve historical eras in international
relations over the past three and a half centuries and seven half-century periods. The
Ž ve historical eras are frequently used in historical analyses of the interstate system.
They are also employed by Kalevi Holsti from whose book this article has drawn the
list of wars for the period 1648–1945. The wars listed by Holsti are major military
con icts in “the European and global states system.”37 He includes some civil wars,
but they are excluded from the con icts examined here. Of the 119 interstate wars
between 1648 and 1945, 93 were judged to be territorial wars in that Holsti classiŽ ed
them as being concerned with six issues that clearly involve state control over
territory.38 The list is not exhaustive of all territorial aggressions or wars, but it is
extensive enough to reveal important patterns.
The list of forty territorial aggressions for the period 1946–2000 is drawn from
extensive research in secondary materials. The deŽ nition of territorial aggressions or
wars for this period encompasses a larger group of con icts because the management
and outcomes of small as well as large military encounters reveal a great deal
about the development of the territorial integrity norm. Territorial aggressions or
wars include interstate armed con icts where a clear purpose of the military attack
was the change of boundaries of a state or its colonies; the invading state sought to
capture some territory from the attached state—not merely to punish it (China’s
1979 invasion of Vietnam, for example); attacking states were widely recognized as
sovereign states; and the invasion or occupation lasted at least a week. Using this
deŽ nition clearly reduces the value of comparisons with the pre-1946 territorial
wars, but the value of using a larger group of territorial aggressions for the recent
period greatly assists our understanding of recent changes.39
Several key patterns emerge from the data in Table 1. First, and most importantly,
while approximately 80 percent of territorial wars led to re-distributions of territory
for all periods prior to 1945, this Ž gure dropped to 30 percent after 1945. Second,
the number of territorial redistributions per year (given our list of wars) has varied
by time period. It was about 0.24 from 1648 to 1814; it dropped to 0.19 between
36. See MacFarlane 1999, 4; and Webber 1997.
37. Holsti 1991, 20.
38. See note to Table 1.
39. The term “aggression” is more accurate than “war” for some of the con icts since in a few cases
the attacked state did not resist militarily and in some cases the number of deaths was small. However,
such territorial occupations are often referred to as “wars” and therefore the terms “war” and “aggression”
are used interchangeably.
Territorial Integrity 223
1815 and 1917; it rose dramatically to 0.59 between 1918 and 1945; and then it
dropped back to 0.22 in the post-1945 period.
In looking at the average territorial redistributions per year, it is valuable to take
into consideration that a larger population of territorial con icts is included in the
1946–2000 period than in other periods and, more importantly, that the number of
states has increased dramatically over recent centuries—especially since 1945. A
recent study provides data on the number of states (with certain characteristics)
between 1816 and 1998, and it allows us to control for the number of states in the
international system by calculating the number of territorial redistributions per
country-year for particular periods of time. The Ž gure for 1816–50 is 0.0032; for
1851–1900, 0.0035; for 1901–50, 0.0073; and 1951–98, 0.0015.40 These Ž gures
indicate, of course, that the number of territorial redistributions per country-year
was more than twice as high in the nineteenth century than it was in the last half of
the twentieth century. Also, it was almost Ž ve times higher in the Ž rst half of the
twentieth century than in the second half. These Ž gures have to be interpreted in
light of the fact that the criteria for the inclusion of wars differs for the pre- and
post-1945 years, and there is no claim of statistical signiŽ cance.
The preceding Ž gures do point to important changes in some patterns of territorial
armed con ict. However, it is also crucial to look at post-1945 territorial wars
(summarized in Table 2) in some detail since the development and management of
these con icts reveal a great deal about the strengthening of the norm. This section
starts with territorial wars in Europe and then moves to the Americas, Africa, the
Middle East, and Asia.
Europe. It is Ž tting to consider territorial aggressions in Europe Ž rst, not only
because the modern territorial order Ž rst developed there, but also because that
continent has witnessed some of the most destructive territorial con icts in modern
history. In the late 1940s Europeans were certainly not conŽ dent that the era of
violent territorial revisionism was at an end. However, only four interstate territorial
wars have occurred in Europe since 1945; only one of them (Turkey-Cyprus) led to
a territorial change, and it could be reversed.
Regarding the three wars among the states that emerged from the dissolution of
Yugoslavia in 1991 and 1992, the European states and the United States supported
the territorial boundaries that Slovenia, Croatia, and Bosnia possessed when they
declared their independence in 1991 and 1992, and all the warring parties accepted
them at the 1995 Dayton peace conference. Finally, in 1996 Yugoslavia, under
considerable U.S. and European pressure, signed bilateral accords with Croatia and
40. Gleditsch and Ward 1999. The authors include states that meet the following criteria: (1) they
possessed autonomous administration over some territory; (2) they were regarded as distinct entities by
local actors; and (3) they had a population over 250,000. The average number of states per year between
1816 and 1850 was 53.05; between 1851 and 1900, 56.70; between 1901 and 1950, 63.42; and between
1951 and 1998, 134.58. The total number of territorial redistributions for these four periods was 6, 10,
23, and 10, respectively. To determine the number of territorial redistributions per country-year for a
particular period it is necessary to multiply the total number of years by the average number of countries
per year and to divide this sum into the total number of redistributions for the period.
224 International Organization
TABLE 2. Interstate territorial aggressions, 1946–2000
States involved Issue Outcome Change
Europe
Turkey-Cyprus,
1974–present
Turkey invaded Cyprus to protect the
Turkish Cypriot community. It gathered
all Turkish Cypriots into the northern
40 percent of the island. In 1983
Turkey supported the creation of the
Turkish Republic of Northern Cyprus
(TRNC). Turkish troops remain in the
TRNC.
The UN and NATO opposed the
invasion and recognition of the
TRNC. Western and UN
attempts to negotiate a
settlement based on a federation
of the two sections of the island
have failed. Only Turkey
recognizes the TRNC.
Major change
Yugoslavia-
Slovenia, 1991
Yugoslavia’s armed forces attacked to try
to reverse Slovenia’s departure from
the federation after Slovenia declared
independence on 25 June 1991.
Yugoslavia ceased its attack after
eight days of Ž ghting and
withdrew from Slovenia.
No change
Yugoslavia-
Croatia,
1991–95
Croatia declared independence in 1991.
Yugoslavia (Serbia-Montenegro) sent
troops to assist Serbs in Croatia (12
percent of pop.) who wanted to attach
their areas to Yugoslavia. Most Serb
troops defending Serb enclaves came
from Croatia, but some came from
Yugoslavia.
UN called for withdrawal of
foreign troops and a cease-Ž re.
Fighting killed 15,000. Main
Serb force was defeated in
1995. Dayton accord in 1995
recognized former boundary.
Yugoslavia and Croatia
recognized boundary in bilateral
treaty in August 1996.
No change
Yugoslavia-
Bosnia,
1992–95
Bosnia declared independence in 1992.
Serb population of Bosnia (assisted by
Yugoslav military) fought against an
alliance of Bosnian Muslims and
Bosnian Croats. The Serb forces
wanted to unite parts of Bosnia with
Yugoslavia. The Croatian army
intervened at times, and in a few
instances it fought Muslim forces.
UN called for withdrawal of non-
Bosnian troops and cease-Ž re.
The Ž ghting killed 200,000. The
1995 Dayton accord created a
multiethnic government and
recognized the original
boundaries of Bosnia-
Herzegovina. Yugoslavia and
Bosnia recognized boundary in
bilateral treaty in October 1996.
No change
The Americas
Nicaragua-
Honduras, 1957
Nicaragua occupied a part of Honduras. Nicaragua withdrew and accepted
ICJ arbitration because of OAS
pressure. ICJ awarded territory
to Honduras in 1959.
No change
Argentina-Britain,
1982
Argentina occupied Malvinas/Falkland
islands.
UN called for Argentina’s
withdrawal. Britain reoccupied
islands.
No change
Ecuador-Peru,
1995
Ecuador sent troops into an area it lost in
peace treaty at end of 1942 war.
Four guarantor powers of 1942
treaty promoted withdrawal.
The two states signed a border
treaty in 1998.
No change
Africa
Egypt-Sudan,
1958
Egypt occupied a small area of Sudanese
territory.
Arab League pressured Egypt to
withdraw.
No change
Ghana–Upper
Volta, 1963–65
Ghana occupied a small border area of
Upper Volta in 1963.
In 1965 OAU supported original
boundary. Ghana withdrew.
No change
Algeria-Morocco,
1963
Morocco occupied a part of Algeria. Arab League and OAU called for
withdrawal. OAU established
mediators. Morocco withdrew.
No change
Somalia-Ethiopia
and Kenya,
1964
Somalia provided troops to Somali rebels
in eastern Ethiopia and northern Kenya
seeking union with Somalia.
OAU supported original
boundaries and established
mediator. Somalia withdrew.
No change
Libya-Chad,
1973–87
In 1973 Libya secretly occupied a border
area of Chad called the Aouzou Strip.
OAU tried to secure Libyan
withdrawal in 1980s. Libya was
driven out by Chad in 1987. ICJ
arbitration was accepted in 1990.
ICJ ruled in Chad’s favor in
1994.
No change
Territorial Integrity 225
TABLE 2. continued
States involved Issue Outcome Change
Mali–Burkina
Faso, 1975
Mali claimed a small area of Burkina
Faso in 1960. Mali occupied the area in
1975.
OAU mediated a cease-Ž re and
withdrawal by Mali.
No change
Somalia-Ethiopia,
1976–80
Somalia occupied most of the Ogaden
region of Ethiopia. Ethiopia received
military forces from Cuba.
An OAU committee called for
respect for former boundary.
Somalia withdrew all forces by
1980.
No change
Uganda-Tanzania,
1978
Uganda occupied a small part of
Tanzania.
Within several weeks of Tanzanian
military action, Uganda
withdrew.
No change
Morocco–Spanish
Sahara, 1975–
2000
Morocco claimed Spanish Sahara prior to
independence and sent in military
contingents in 1975. Under pressure
Spain agreed to cede the colony. Since
1976 Morocco and the independence
movement Polisario have conducted a
continuous war.
The OAU and the UN have called
for Moroccan withdrawal and a
referendum. The UN tried to
organize a referendum during
the 1990s. (Mauritania occupied
part of Spanish Sahara from
1976 to 1978.)
Major change
Libya-Chad,
1981–82
Libya pressured Chad to accept a political
union in exchange for military
assistance in its civil war.
OAU opposed union and provided
some troops. Chad ended
political union and Libya
withdrew troops.
No change
Mali–Burkina
Faso, 1985
Dispute over a small strip existed from
time of independence and led to
violence again.
In 1985 they accepted ICJ
arbitration as a result of OAU
mediation. In 1986 ICJ divided
the area equally between the
two states.
Minor change
Eritrea-Ethiopia,
1998–2000
Eritrea and Ethiopia dispute sovereignty
over several small border regions.
Eritrea occupied some areas in 1998. In
1999 and 2000 Ethiopia regained
control of all areas.
The OAU and the Western powers
promoted a cease-Ž re, a
withdrawal to the pre-1998
boundary, and arbitration based
on colonial treaties. These were
accepted in June 2000.
No change
Middle East
Arab states–Israel,
1948
Britain accepted a UN recommendation to
divide Palestine into Israeli and Arab
states. Neighboring Arab states attacked
Israel at time of independence in May
1948 to support Palestinian Arabs’
claim to entire area.
Israel gained territory in each
stage of the war. At end of 1948
both sides accepted armistice
lines. Arab Palestinians retained
control of the West Bank and
Gaza Strip (administered by
Jordan and Egypt).
Major change
Israel–Arab states,
1967
Israel occupied the West Bank, Gaza
Strip, Sinai, and Golan Heights. It later
annexed East Jerusalem and applied
Israeli law to Golan Heights.
UN Security Council in November
1967 called for withdrawal of
Israel to 1948 armistice lines in
exchange for recognition by
Arab states of Israel. In 1978
Israel agreed to return the Sinai;
in 1993 Israel accepted staged
implementation of self-rule for
West Bank and Gaza.
Major change
Egypt and Syria–
Israel, 1973
Egypt and Syria sought to recapture the
Sinai and Golan Heights.
UN Security Council called for
cease-Ž re. Fighting ended after
two weeks. Egypt was allowed
to keep a small enclave in the
Sinai.
Minor change
Iraq-Kuwait,
1990–91
Iraq invaded Kuwait and annexed it. Most UN members called for
Iraq’s withdrawal. Iraq was
expelled by a UN-sanctioned
force.
No change
226 International Organization
TABLE 2.
States involved Issue Outcome Change
Asia
Pakistan-India,
1947–48
British India was partitioned and India
and Pakistan became independent in
1947. Pakistan army joined Muslim
rebels in Kashmir who were seeking
union of Kashmir with Pakistan.
Pakistan secured control over a
sparsely populated third of
Kashmir by end of war. UN
Security Council supported
plebiscite during war, but India
did not accept it. Post-1948
border is the Line of Control.
Major change
North Korea–
South Korea,
1950–53
North Korea attempted to absorb South
Korea.
Armistice line re ects very minor
changes in former boundary.
Minor change
China-Burma,
1956
China moved into a small border area of
Burma.
The two states negotiated a new
border that gave China a part of
the area it occupied.
Minor change
Afghanistan-
Pakistan, 1961
Afghanistan sent irregular Afghan forces
into the Pathanistan region of Pakistan
to support local forces favoring union
with Afghanistan.
Afghan incursions were defeated
by Pakistan.
No change
India-Portugal,
1961
India invaded and absorbed the
Portuguese-controlled colony of Goa.
Most states accepted the
legitimacy of India’s action.
Major change
Indonesia-
Netherlands,
1961–62
Indonesia claimed West New Guinea
(West Irian) over which the
Netherlands had colonial control.
Indonesia invaded in 1961.
In 1962 Indonesia and the
Netherlands agreed to a
plebiscite after one year of UN
administration. The plebiscite
favored integration with
Indonesia.
Major change
China-India, 1962 China occupied Aksai Chin and part of
Northeast Frontier Agency that it
claimed.
China still occupies the areas. Major change
North Vietnam–
South Vietnam,
1962–75
France administered the northern and
southern parts of Vietnam separately
prior to 1954. After independence in
1954 South Vietnam did not allow a
referendum on uniŽ cation as provided
in the Paris peace accord. By 1962
North Vietnamese forces were Ž ghting
with the Viet Cong to promote
uniŽ cation.
In 1975 North Vietnamese and
Viet Cong forces defeated the
South Vietnamese army, and the
two areas were reuniŽ ed.
Major change
Indonesia-
Malaysia,
1963–65
Indonesia claimed the Malaysian territory
of North Borneo, and it introduced
military contingents to expel Malaysian
authorities.
Britain and Australia sent troops to
help Malaysia. Indonesia was
unsuccessful.
No change
Pakistan-India,
April 1965
Pakistan sent a force into the Rann of
Kutch.
Britain negotiated a cease-Ž re and
the parties agreed to an
arbitration that awarded 10
percent of the area to Pakistan
in 1968.
Minor change
Pakistan-India,
August 1965
Pakistan attacked India to secure control
of the Indian-controlled part of
Kashmir.
Pakistan was defeated. USSR and
Western powers backed the
1948 Line of Control.
No change
India-Pakistan
(creation of
Bangladesh),
1971
The Bengali population in East Pakistan
sought to secede from Pakistan. Indian
troops intervened in the civil war to
secure the creation of Bangladesh.
The UN General Assembly called
for Indian withdrawal; India did
not withdraw, and it facilitated
the creation of Bangladesh.
Major change
Iran–United Arab
Emirates, 1971
Upon Britain’s granting of independence
to the UAE Iran occupied some of the
islands in the Straits of Hormuz that
belonged to the UAE.
Iran maintains control of the
islands.
Major change
(continued)
Territorial Integrity 227
Bosnia accepting those boundaries. The basic position of most of the Western
powers was enunciated in a statement by U.S. Secretary of State James Baker in a
meeting with President Milosevic in 1991: “The United States and the rest of the
international community will reject any Serbian claims to territory beyond its
borders.”41 Subsequently, the chief U.S. negotiator at Dayton, Ambassador Richard
Holbrooke, substantiated Baker’s judgment: “There was a moral issue: the United
States and its European allies could not be party to . . . legitimizing the Serb
aggression.”42
The one territorial aggression in Europe that has succeeded is Turkey’s invasion
of Cyprus in 1974 following a coup d’etat in Cyprus that brought to power a
government committed to amalgamating Cyprus with Greece. After its invasion,
Turkey brought together the Turkish Cypriots in the northern part of Cyprus,
expelled the Greek Cypriots from the area, and maintained a military presence in
this northern region. In 1983 the Turkish Cypriots, with Turkey’s backing, created
an independent Turkish Republic of Northern Cyprus that de facto constituted a
change of state boundaries by the use of force. Both the Western countries and the
UN have steadfastly refused to recognize the Turkish Republic of Northern Cyprus.
41. See Baker 1995, 481; and Ullman 1996.
42. Holbrooke 1998, 363.
TABLE 2. continued
States involved Issue Outcome Change
China–South
Vietnam, 1974
China expelled South Vietnam from the
western Paracel Islands that it claimed.
China maintains control of the
islands.
Major change
Indonesia-
Portugal (East
Timor),
1975–99
Indonesia invaded East Timor several
months before it was to achieve
independence from Portugal. It made it
a province of Indonesia.
UN demanded Indonesian
withdrawal and selfdetermination
through 1982. In
1999 Indonesia relented to
international pressure and
allowed a referendum that led to
independence.
No change
Cambodia-
Vietnam,
1977–78
Cambodia attacked Vietnam to establish
control over a small border region.
Cambodian forces were defeated.
War was the result mainly of
political con icts.
No change
Iraq-Iran,
1980–88
Iraq invaded Iran to seize control of the
Shatt al-Arab waterway and some other
areas.
UN Security Council backed
acceptance of former boundary
in 1987. The two states accepted
a cease-Ž re in 1988 and the
former boundary in 1990.
No change
Note: Of the forty interstate territorial con icts listed here, twelve involved major redistributions of
territory, and Ž ve involved minor alterations of borders. A “minor change” refers to small border adjustments.
Any change apart from a minor border alteration is regarded as a “major change.” The
con ict over the Spratly Islands, which involves China, Taiwan, Vietnam, Philippines, Malaysia, and
Brunei, is not included because there has never been any local or international consensus on jurisdictions.
See Haller-Trost 1990; and Lo 1989.
228 International Organization
In fact, only Turkey has recognized the secessionist state. The eventual outcome of
the international opposition to the creation of the secessionist state could be a
reuniŽ cation of the Turkish and Greek parts of the island and hence a nulliŽ cation
of a coercive territorial change.43
The Americas. In Latin America the principle of uti possidetis, or the obligation
of states to respect the boundaries inherited from the previous governing power,
originated in the 1820s following the Latin American states’ achievement of
independence from Spain and Portugal. While the principle was not respected by all
countries in the region throughout the nineteenth century, it had some impact in
promoting greater order in the region.44 After World War II the members of the
Organization of American States (OAS) declared their opposition to coercive
territorial revisionism,45 and very few military challenges to territorial boundaries
have been made by states in the Western Hemisphere. Also, all attempts to alter
boundaries by force have failed.
In 1957 Nicaragua sought to absorb a region of Honduras; the OAS pressured
Nicaragua to withdraw and persuaded the two states to submit their dispute to the
International Court of Justice, which rejected the Nicaraguan claim.46 In 1995 a
small war broke out between Ecuador and Peru over Ecuador’s claim to a border
region that was awarded to Peru in the 1942 Protocol of Rio de Janeiro. The four
guarantor powers of the 1942 protocol (Argentina, Brazil, Chile, and the United
States) secured a restoration of the status quo ante.47 Finally, there was the
Malvinas/Falklands war between Argentina and Britain in 1982 that eventuated in
Britain’s reoccupation of the islands.48Most UN member states called for Argentina
to withdraw; most Latin American states, however, supported Argentina because
they regarded the Malvinas as a British colony that should be ceded to Argentina.49
Overall the Latin American countries have been strong opponents of coercive
territorial aggrandizement, and the United States, of course, has exerted a strong
in uence in favor of the territorial integrity norm in the region.
Africa. Most African states are composed of a variety of ethnic groups, and often
these groups straddle boundaries with neighboring states. Consequently, there are
sociological pressures for territorial revisionism in many parts of the continent. This
condition as well as the military weakness of the African states are key reasons why
they have supported the principle of uti possidetis.
43. See McDonald 1989; and Necatigil 1989.
44. Parkinson 1993, 140– 46.
45. Shaw 1986, 180.
46. Zacher 1979, 232.
47. See Day 1987, 424–25; and Fighting on Peru-Ecuador Border, Keesing’s Contemporary Archives
41 (January 1995), 40356.
48. See Kacowicz 1994, 150–51; and Korman 1996, 275–80.
49. During the late 1970s and the early 1980s there was also the possibility of a territorial war between
Chile and Argentina over islands in the Beagle Channel. In 1984, the dispute was settled by arbitration
by the Vatican. Day 1987, 385.
Territorial Integrity 229
We now turn to unsuccessful wars of territorial aggrandizement. One war
occurred before the founding of the OAU in 1963: Egypt’s occupation of a small
area in the Sudan in 1958. The Arab League was responsible for pressuring Egypt
to withdraw.50 The Ž rst challenge to the territorial integrity norm in Africa after the
creation of the OAU was Morocco’s occupation of a part of Algeria in October
1963. Within several months Morocco was pressured to withdraw by the OAU and
the Arab League.51 A similar development occurred in 1964 when Somalia sent
troops into areas of Ethiopia and Kenya inhabited by ethnic Somalis. Somalia was
subsequently pressured by the OAU to withdraw. On each occasion the OAU
insisted that the con ict be settled in keeping with the OAU principle of state
territorial integrity, and the super powers backed con ict resolution by the OAU.52
In 1965 the OAU also successfully pressured Ghana to withdraw from a small area
of neighboring Upper Volta.53 Within its Ž rst three years (1963–65), the OAU was
remarkably successful in upholding the territorial integrity norm, or what James
Mayall has called the OAU’s “unnegotiable acceptance of the status quo.”54
Since 1973 the norm has been tested by eight territorial aggressions, and most
OAU members have consistently upheld it; in one case, however, the aggression has
not been reversed.55 One of these wars involved large-scale Ž ghting over four years
and was politically very important. From 1976 to 1980 Somalia unsuccessfully tried
to absorb the Ogaden region of Ethiopia, and the OAU, the former Soviet Union,
and the Western powers all opposed the Somali military action. The African and
Western opposition to the Somali action is quite signiŽ cant since the Ethiopian
government was Marxist and relied on Cuban troops.56
The one successful violation of the territorial integrity norm in Africa is Morocco’s
absorption of the former Spanish Sahara (Western Sahara) in 1975. It is
included as a case of territorial aggression because Morocco pressured Spain into
ceding the area prior to its scheduled independence in 1976 by sending in military
contingents and mobilizing its troops and its civilian population at the border.
Morocco’s absorption of the area was supported by France and the United States
because they preferred that pro-Western Morocco, and not the radical Polisario
independence movement, control the region. The majority of OAU and UN
members have periodically called for a referendum for the inhabitants of the former
Spanish Sahara. During the 1990s a UN mission sought regularly, though unsuccessfully,
to organize a referendum in the Western Sahara.57
50. Zacher 1979, 199–200, 233.
51. See Goldstein 1992, 173–74; and Wild 1966.
52. See Wild 1966; Touval 1972; and Day 1987, 129–31.
53. Zacher 1979, 246– 47.
54. Mayall 1990, 56.
55. Libya-Chad, 1973–87; Mali–Burkina Faso, 1975; Somalia-Ethiopia, 1976–80;Morocco–Spanish
Sahara, 1975–present; Uganda-Tanzania, 1979; Libya-Chad, 1981–82; Mali–Burkina Faso, 1985; and
Eritrea-Ethiopia, 1998–2000. The only con ict the OAU did not get involved in was Uganda-Tanzania
because it ended very quickly. The agreement of June 2000 ending the Eritrea-Ethiopia war is available
at < www.bbc.co.uk/hi/world/africa> .
56. Day 1987, 129–31.
57. See Layachi 1994; and Von Hippel 1995, 72–79.
230 International Organization
In nine of the eleven African territorial wars since 1963, the OAU has been a
major in uence in securing troop withdrawals, and it could succeed eventually in the
Morocco–Western Sahara con ict. When the OAU was founded in 1963, few
thought that the society of African states would be such an important force in
securing the stability of African boundaries. The OAU members have exerted
signiŽ cant diplomatic pressure on aggressing states, and they have in uenced
outside powers to back OAU positions against territorial aggressions.
The Middle East. Table 2 lists four territorial wars in theMiddle East, excluding
Arab North Africa. Two wars between North African Arab states are listed under
“Africa.” In these two North African con icts the Arab League opposed Egypt’s
occupation of a small region of Sudan in 1958 and Morocco’s occupation of an area
of Algeria in 1963. Among the four territorial wars in the Arabian Peninsula only
one was between Arab states—namely, the Iraqi invasion of Kuwait in 1990–91. In
that war only three of the more than two dozen members of the Arab League failed
to oppose Iraq’s military absorption of Kuwait within the context of the UN
deliberations.58
Within the Arabian Peninsula, three major territorial wars have concerned Israel
and its Arab neighbors. The 1948 and 1967 wars led to signiŽ cant redistributions of
territory in favor of Israel, and the 1973 war saw the return of a small piece of
territory from Israel to Egypt. In May 1948 the armies of the neighboring Arab
states, which rejected the UN partition plan to create separate Jewish and Arab states
in Palestine, attacked Israel. These Arab armies subsequently lost ground during
each phase of Ž ghting during 1948, and at the end of the hostilities the Arab armies
controlled only the West Bank and the Gaza Strip where most of the Arab
Palestinians had gathered. No international attempts were made to reverse the Israeli
expansion since both super powers favored Israel, the Arab states had initiated the
Ž ghting, and the prohibition against coercive territorial revisionism was certainly
not as strong as it later became.59
In the Six Day War in June 1967, Israel occupied the West Bank, Gaza, the Sinai
Desert, and the Golan Heights following bellicose statements and actions by the
Arab states. A very important development in the wake of this war was the Security
Council’s passage of Resolution 242 in November 1967. It stated, in essence, that
Israel should return the Arab lands that it occupied in exchange for diplomatic
recognition from the Arab states. In 1980 the UN Security Council opposed Israel’s
making East Jerusalem part of the capital of Israel and extending Israeli law to the
58. In 1990 Yemen, Libya, and Jordan parted company with the other Arab states by supporting Iraq.
See Friedman and Karsh 1993; and Johnstone 1994. Note that in 1961 Iraq threatened to invade Kuwait,
and all of the Arab League countries opposed it. In fact, most sent troops to defend Kuwait. Zacher 1979,
199, 341.
59. See Hurewitz 1950; and Day 1987, 204–207. In 1949 King Abdullah of Transjordan (now Jordan)
indicated Transjordan’s intention to absorb the West Bank, which was occupied by the Transjordanian
army, but after strong protestations by other Arab states he agreed that Transjordanian administration
would last only until the Palestinians were able to establish a united Palestinian state.
Territorial Integrity 231
Golan Heights.60 The Western powers have, for the most part, strongly supported
the return of the occupied territories. In 1978, the United States mediated the Camp
David agreement between Israel and Egypt that restored the Sinai Desert to Egypt,
and in 1993 the Western powers were active in promoting the Oslo accord, which
anticipates eventual Israeli withdrawal from the West Bank and Gaza. In December
1999, Israeli-Syrian negotiations concerning the return of the Golan Heights Ž nally
commenced. The territorial integrity norm continues to have an important impact on
the con ict, since withdrawal from the occupied areas (or most of the areas) is a
standard that the Western powers feel obligated to support and that the con icting
states will probably accept as a tolerable outcome.61 The 1948 armistice lines have
taken on a legitimate status for many states, and it is likely that future Arab-Israeli
accords will make only modest alterations in these borders.
Asia. Asia has witnessed twice as many territorial redistributions as all other
regions combined, although Asia is the one region without the outbreak of a new
territorial war since 1976. Most wars originated with states’ dissatisfaction with
boundaries that were inherited from the colonial era, and increasingly these
territorial disputes have been resolved. Of the seventeen territorial wars in Asia, six
wars did not lead to any exchange of territory; three led to minor border alterations;
and eight eventuated in major territorial changes.
In six Asian wars that led to a restoration of the status quo ante, the attacked states
were often supported by a great power ally, and most had local military superiority
to defeat the invasion.62 In two of these wars the UN passed resolutions calling for
withdrawals, which were eventually accepted. In the Iraq-Iran war of 1980– 88,
outside powers were generally noncommittal on the merits of the con ict for most
of the war. In the Ž nal stage of the war in 1987 the UN Security Council passed a
resolution calling on the parties to accept the prewar boundary, and they eventually
did.63 In the case of Indonesia’s invasion of East Timor in 1975, the UN General
Assembly regularly called for Indonesia’s withdrawal and the holding of a referendum
between 1975 and 1982, but Indonesia did not relent because it had the de
facto backing of the United States and some other Western powers who feared that
an East Timor government controlled by the pro-independence party, Fretilin, would
establish close ties with communist China after independence. With the end of the
Cold War, foreign public opinion and some governments began to push for a
referendum concerning East Timorese independence.This pressure eventually led to
a decision by Indonesia to allow a referendum on independence in 1999 after having
60. Korman 1996, 250–60.
61. See Kacowicz 1994, 129; Makovsky 1996, 205–10; Newman 1999; and Whetten 1974.
62. Afghanistan-Pakistan, 1961; Indonesia-Malaysia, 1963–65; Pakistan-India, April 1965; Indonesia-
Portugal (East Timor), 1975–99; Kampuchea-Vietnam, 1977; Iraq-Iran, 1980– 88.
63. See MacDonald 1990, 214–215, 218; and Dramatic Acceptance by Iraq of Peace Offer, Keesing’s
Contemporary Archives 36 (August 1990), 37667.
232 International Organization
controlled East Timor for twenty-four years. This important development strengthened
the territorial integrity norm.64
Among the three Asian wars where minor territorial changes occurred, in only
one (the Korean War, 1950–53) did the UN take a stand against the aggressor.
SigniŽ cantly, the armistice line is very close to the pre-1950 boundary. In the other
two (China-Burma, 1956; and Pakistan-India, April 1965) diplomacy soon brought
about accords to implement minor border adjustments.
When one looks at the eight cases of successful territorial revisionism in Asia, it
becomes clear that there has not been as much territorial turbulence as the number of
cases implies.65 China absorbed remote and sparsely populated areas of two neighboring
states—namely, India’s Aksai China and Northwest Frontier Agency in 196266 and
South Vietnam’s Paracell Islands in 1974.67 In the 1990s China has actually been very
active in signing legal accords to stabilize its boundaries—speciŽ cally, agreements with
Russia, Kazakhstan, Uzbekistan, and Vietnam.68 India absorbed the small Portuguese
colonial enclave of Goa in 196169 and assisted a popular secessionist movement in
East Pakistan to create the state of Bangladesh.70 Pakistan in 1948 established
control over a third of the area of the Indian state of Jammu and Kashmir whose
accession to India was certainly challenged by many observers.71 Indonesia in 1962
absorbed the sparsely populated Dutch colony of West Irian that it had long
claimed.72 In 1971 Iran occupied some small but strategic islands belonging to the
United Arab Emirates soon after the latter’s independence.73 Finally, North Vietnam
united the two parts of Vietnam by force, but uniŽ cation would probably have
resulted from an election in the mid-1950s if South Vietnam had permitted it.74 In
evaluating the history of territorial aggrandizement in Asia it is noteworthy that
there have been no new territorial wars in Asia since 1976.
64. See Carey and Bentley 1995; Day 1987, 332–33; Korman 1996, 181–92; and 7 http://www.
nautilus.org/napsnet/sr/East_Timor/index.html8 .
65. Pakistan-India, 1948; India-Portugal, 1961; Indonesia-Netherlands, 1961–62; North Vietnam–
South Vietnam, 1962–75; China-India, 1962; Iran–United Arab Emirates, 1971; India-Pakistan, 1971;
and China–South Vietnam, 1974. On Asian territorial wars, see Anderson 1996, 93–104.
66. See Liu 1994; and Foot 1996.
67. Lo 1989.
68. Wang 2000.
69. Korman 1996, 267–75. Most developing states supported India, and the West did not exert strong
pressure to promote its withdrawal.
70. Sisson and Rose 1990. Most states voted for Indian withdrawal in the UN since they did not want
to set a precedent of approving foreign military assistance to a secessionist group; but there was broad
public support for India’s assistance to the Bengalis.
71. See Brecher 1953; and Korbel 1966. The Hindu princely ruler acceded to India while the majority
Muslim population strongly supported union with Pakistan. The UN Security Council called for a
referendum, but India rejected it.
72. Van der Veur 1964. The developing countries overwhelmingly supported the Indonesian claim.
73. Day 1987, 242–44. The failure of the United States and the United Kingdom to exert strong
pressure against Iran to secure its withdrawal evidently stemmed from Iran’s strong pro-Western stance
at that time.
74. Turley 1986. South Vietnam rejected the provisions of the 1954 Paris agreements calling for a
referendum.
Territorial Integrity 233
It is clear that there have been very few cases of coercive boundary change in the
last half century during which UN membership has grown from 50 to 190. No longer
is territorial aggrandizement the dominant motif of interstate politics; whereas in the
three centuries leading up to 1946, about 80 percent of all interstate territorial wars
led to territorial redistributions, for the period 1946–2000, the Ž gure is 30 percent
(twelve out of forty) (Table 1a). Given the huge increase in the number of states in
the international system in the past half century and our deŽ nition of territorial wars
for the period, the absolute numbers of forty territorial wars and twelve cases of
major boundary change are not very large by historical standards. Two of the
successful uses of force involved turbulent decolonization processes in 1947 and
1948 in the Indian subcontinent and former British Palestine, and the other ten
occurred between 1961 and 1975. Of these ten wars, the UN passed resolutions
calling for withdrawal in four of them (Israel-Arab states in 1967, India-Pakistan in
1971, Turkey-Cyprus in 1974, andMorocco-Spanish Sahara in 1975). Another three
of the ten (India-Portugal in 1961, Indonesia-Netherlands in 1961–62, and North
Vietnam-South Vietnam from 1962 to 1975) were viewed by many countries as
stages of the decolonization process. The remaining two involved China’s occupation
of remote areas—parts of northern India in 1962 and South Vietnam’s Paracel
Islands in 1974.
An interesting characteristic of territorial wars concerns the role of international
organizations in bringing them to an end, since multilateral responses
often re ect broad international backing for the norm. In the four territorial wars
in Europe (except for the quick war between Yugoslavia and Slovenia in 1991)
the NATO states and the UN were active in promoting respect for boundaries.
In the Western Hemisphere the OAS or an important group of OAS members
was active in promoting a withdrawal of forces in two con icts, and the UN
backed withdrawal in the other. In Africa the OAU was very active in ten of the
twelve territorial wars (one being prior to the OAU’s creation), and the UN
played a role in several con icts as well. In the Middle East the UN played a
signiŽ cant role in promoting a return to the status quo ante in three territorial
wars (not the Arab-Israeli war of 1948). In Asia international organizations have
not been active in most of the seventeen territorial wars. However, the UN had
a major long-term role in promoting Indonesia’s recent withdrawal from East
Timor.
The Boundaries of Successor States
In discussing the post-1945 stabilization of boundaries another pattern of international
behavior should be noted, since it is closely related to support for the
prohibition of the use of force to alter boundaries. During the postwar period, all of
the successor states that emerged from the nine breakups of existing states have kept
their former internal administrative boundaries as their new international bound-
234 International Organization
aries.75 In fact, in cases where some doubt existed as to whether the successor states
would accept these boundaries, outside countries pressured the successor states to
adopt their former administrative boundaries as their new interstate borders. This
indicates that states generally desire predictability regarding the international
territorial order. They do not like secessions, but if they are going to occur, they do
not want the successor states Ž ghting over what their boundaries should be.
Some of the best examples of international policy on this issue concern the
breakups of the former Yugoslavia and the former Soviet Union. The United States
and the European powers went to tremendous lengths to preserve the former internal
administrative boundaries of Croatia and Bosnia as their new international boundaries.
These boundaries were legitimated in the Western countries’ recognition of
these states in 1992, the 1995 Dayton accord, and the 1996 accords between
Yugoslavia (Serbia), on the one hand, and Croatia and Bosnia, on the other.76 The
Western countries have also been active in promoting respect among the Soviet
successor states for the boundaries they originally possessed as Soviet republics.
Concerning why the former internal boundaries have been maintained as interstate
borders, Neil MacFarlane has remarked:
Most signiŽ cant . . . are the norms of sovereignty and non-intervention and the
principle of territorial integrity. The 15 republics of the former Soviet space
exist in the territorial boundaries deŽ ned under Soviet rule, whether or not
they make sense in ethno-geographical terms, or correspond to the aspirations
of the people living within them. They do so in part because Western states
and international organizations . . . have self-consciously promoted these
norms. . . . For better or worse, the West is committed to the attempt to address
problems relating to minority rights within the context of acceptance of
the sovereignty and territorial integrity of the new states.77
Western efforts at promoting the territorial integrity of the successor states (often
through the OSCE) have focused on keeping Nagorno-Karabakh (an Armenian
enclave) within Azerbaijan and keeping Abkahzia and Ossetia within Georgia, but
Western policy has had a broader impact as well in strengthening the international
territorial order among the Soviet successor states.78
75. Syria’s secession from the UAR in 1961, Singapore’s secession from Malaysia in 1965,
Bangladesh’s secession from Pakistan in 1971, Gambia’s secession from Senegambia in 1989, Namibia’s
secession from South Africa in 1990, Eritrea’s secession from Ethiopia in 1993, the breakup of the former
Soviet Union into Ž fteen states in 1991, Yugoslavia’s breakup into Ž ve states in 1991–92, and Slovakia’s
secession from Czechoslovakia in 1992. In the case of Eritrea-Ethiopia, they maintained the former
internal administrative boundary from 1993 to 1998. In 1998 Eritrea occupied several small border areas,
and in 1999 and 2000 Ethiopia regained the lost territories. In 2000 the OAU backed withdrawal of all
forces behind the pre-1998 boundary and the establishment of an arbitral body to settle the dispute.
76. See Weller 1992, 587, 602; and Ullman 1996.
77. MacFarlane 1999, 4, 16.
78. See Baranovsky 1966, 267–78; Webber 1997; MacFarlane and Minnear 1997; and Menon 1998.
Armenia’s support for the Armenian population in Azerbaijan is not regarded as an interstate territorial
war because Armenia (some of whose army fought for Nagorno-Karabakh) has not explicitly backed
secession by Nagorno-Karabakh.
Territorial Integrity 235
It is impossible to declare that the acceptance of internal administrative boundaries
as interstate boundaries for secessionist states is now an authoritative rule of
international practice. Quite possibly, however, this norm will become entrenched
as a part of the new territorial order that  ows from states’ concern for reducing the
incidence of destructive wars and wars’ impact on commercial relations. States and
international commercial interests increasingly abhor violence and uncertainty over
what political entities have jurisdiction over particular geographical spaces.
Overview of Stages in the Development of the Norm
In concluding the discussion of the evolution of normative declarations and state
practices concerning coercive territorial revisionism, it is valuable to look at past
developments as falling into a number of stages. Two scholars have identiŽ ed three
stages of norm development as emergence, acceptance, and institutionalization.79
The emergence stage is marked by a growing advocacy of the new norm by
important countries and nongovernmental groups and some multilateral declarations.
The acceptance stage is characterized by growing support for the norm and its
integration into treaties to that point where it is viewed as legally binding by most
countries. The institutionalization stage includes the integration of the norm in
additional international accords and more effective multilateral efforts to promote
state compliance.
Before moving to an analysis of the three stages of norm development during the
twentieth century, I offer some observations about the nineteenth century. The
magnitude of international violence declined from 1815 to 1913 as a result of
regular consultations within the framework of the Concert of Europe, but the great
powers were involved periodically in territorial aggrandizement within the Western
state system as well as in colonial expansion in the Southern Hemisphere. In fact,
territorial adjustments in Europe and in the colonial world were central to maintaining
a balance of power.
The emergence stage of norm development started with the end of World War I
and more particularly Article 10 of the League Covenant, and it lasted through the
end of World War II. The major proponents of the norm were the Western
democratic states. During this period major multilateral treaties and declarations for
the Ž rst time upheld the territorial integrity norm—particularly the 1919 League
Covenant, the 1928 Kellogg-Briand Pact, and the League’s approval of the Stimson
Doctrine in 1931. At the same time the great powers tolerated a number of territorial
aggressions, and Germany, Italy, and Japan became increasingly committed to
territorial expansion in the 1930s. The emergence stage was very bloody, but it was
states’ experience with this era of destructive territorial aggrandizement that
increased support for the norm after World War II.
The acceptance stage of norm development began with the adoption of Article
2(4) in the UN Charter in June 1945, and it lasted until the mid-1970s. It was not
79. Finnemore and Sikkink 1999, 254– 61.
236 International Organization
until the 1960s and early 1970s that broad and strong backing for the norm became
palpable. The key post-1945 multilateral accords were the 1960 UN declaration that
upheld the territorial integrity of states and pronounced that existing colonies (not
ethnic groups) were eligible for self-determination; the OAU’s 1963 charter provision
and 1964 resolution supporting respect for inherited boundaries; and the 1975
CSCE’s Helsinki Final Act with its proscription that boundaries could only be
altered by consent. In 1975 the last case of signiŽ cant territorial revisionism
occurred—Morocco’s absorption of the Spanish Sahara.
The institutionalization (strengthening) stage of norm development encompassed
the period from 1976 to the present; no major cases of successful territorial
aggrandizement have occurred during this period. The key events that strengthened
the norm were states’ responses to individual con icts. Particularly noteworthy
cases were Somalia’s war against Ethiopia, 1976– 80; Iraq’s occupation of Kuwait,
1990–91; and Yugoslavia’s attempts to absorb parts of Croatia and Bosnia,
1992–95. Also important was the decision by Indonesia in 1999 to allow a
referendum in East Timor. Another noteworthy development during this period was
the International Court of Justice’s adjudication of several territorial con icts; the
court based its decisions on the principle of uti possidetis, which means that states
have rights to those territories that were legally ceded to them by prior governing
states and, of course, that other states do not have the right to take these territories
by force.80
Roots of the New Territorial Order
International practices regarding the use of force to alter boundaries have changed
markedly in recent years, and in this section I analyze the reason for this transformation
in the international order. At the heart of this analysis are several general
assertions. First, states have backed the norm for both instrumental and ideational
reasons, though the former have dominated. Instrumental reasons are rooted in
perceptions of how a norm and congruent practices beneŽ t the self-interests of
countries. Ideational reasons are rooted in changing views of ethical behavior
toward other peoples and states. A number of scholars have recognized that both
instrumental and ideational factors in uence the evolution of norms and that
applying an “either/or” approach concerning their in uence is wrong.81
Second, the reasons for such a change in beliefs and practices have varied among
countries, and no single factor explains the support for the norm among a particular
grouping of states.82 These factors include the perceived relationship between
territorial aggrandizement and major international wars, the power relations be-
80. Prescott 1998, 241–52.
81. See Nadelmann 1990; Finnemore 1996; Finnemore and Sikkink 1999; Jackson 1993; and Ruggie
1999.
82. The Soviet bloc is not speciŽ cally discussed in this section. It was generally supportive of existing
boundaries because it wanted to legitimize the Eastern European boundaries that were established in
Territorial Integrity 237
tween possible territorial aggressors and the major powers supporting the norm, the
costs and beneŽ ts of territorial aggrandizement, and moral predispositions concerning
territorial aggression. Although we can speculate about the relative importance
of speciŽ c factors, providing deŽ nitive conclusions about the weight of each is
difŽ cult when the factors have generally pressured states in the same direction. It
appears that the coincidence of several factors has been crucial for both the Western
and the developing states’ backing of the norm.
Among the Western industrialized states, the association of territorial revisionism
with major wars was the central driving force that led these states after World
Wars I and II to advocate a prohibition of coercive territorial revisionism. The key
international afŽ rmations of the norm were after the world wars in 1919 and 1945
and at the 1975 Helsinki conference whose central purpose was the prevention of a
major war between the Western and Soviet alliances. Territorial aggrandizement
was not the central motivation of the key antagonists in World War I, but it played
a part in states’ participation and the postwar settlements. Also, attempts to promote
national self-determination and hence border changes exacerbated feelings of
international hostility after World War I, and this made many states wary of this
justiŽ cation for territorial revisionism. To quote Michael Howard, “The Mazzinian
doctrine, that peace could result only from national self-determination, had left its
followers in disarray. It had caused chaos at the Paris peace conference, and it was
increasingly clear that this mode of thought lent itself far more readily to right-wing
authoritarianism . . . than it did to any form of parliamentary democracy.”83
The fear of territorial aggrandizement as a cause of major war was exacerbated by
World War II because the origins of the war lay signiŽ cantly in German and
Japanese territorial ambitions. The Western states came to fear the right of national
self-determination, and particularly the right to unite national compatriots in
different states, since it encouraged territorial irredentism and xenophobic nationalism.
84 Then, after World War II the introduction of nuclear weapons increased
their fear of major war and enhanced support for the norm. Western nations’ concern
was instrumental at its heart, since states were concerned Ž rst and foremost with
preventing the destruction of their own societies, though governments did share a
certain moral concern for other societies as well.85
Because Western countries’ support for democratic political institutions grew
during the development of the norm,86 it is important to ask whether their liberal
democratic ethos in uenced their acceptance of the territorial integrity norm. This
1945. Like theWestern powers it occasionally supported territorial revisionism for Cold War reasons, for
example, Afghanistan-Pakistan, 1961; and Indonesia-Malaysia, 1963–65.
83. Howard 1978, 95.
84. See Cobban 1969; Mayall 1990; and Franck 1990, 155–74. The destructiveness of past territorial
wars also encouraged Latin American states to oppose territorial revisionism. Holsti 1996, 150–84.
85. In part the movement to abolish territorial revisionism was an aspect of the movement to abolish
war in the industrialized world. See Mueller 1989; and Luttwak 1996.
86. Michael Doyle has noted that the number of liberal states grew from three in 1800; to eight in
1850; thirteen in 1900; twenty-nine in 1945; and forty-nine in 1980. Doyle 1996, 56. With recent changes
in Eastern Europe, Latin America, and Asia the number is now considerably higher.
238 International Organization
question involves considering the reasons why democratic states might eschew wars
of territorial aggrandizement, the views of democratic leaders, and democratic and
nondemocratic states’ patterns of territorial aggrandizement. The key factor that has
probably in uenced democratic states’ opposition to territorial aggrandizement is
touched on in John Owen’s study concerning the democratic peace in which he
notes that “liberalism as a system of thought” is particularly attached to
“self-legislation or self-government” and “self-determination.”87 It is these values
that have shaped the policies of democratic leaders toward coercive territorial
revisionism.
In the late stages of World War I President Wilson commented that “no right
exists anywhere to hand peoples about from sovereignty to sovereignty without their
consent,”88 and Prime Minister David Lloyd remarked that any territorial changes
had to be based on “the consent of the governed.”89 If the citizens of liberal states
adhered to this principle of not imposing a new government on people by force, they
would deŽ nitely be opposed to using force to change interstate boundaries—unless
possibly a liberal state sought to assist the secession of a national minority in a
foreign country. However, the dangers of supporting national secessionist groups
have been clearly recognized by liberal democratic states. While self-determination
for ethnic groups is at times viewed sympathetically by liberals, it is “trumped” by
their recognition that the logical outcome of allowing self-determination for every
national group would be continual warfare. Self-determination has had to be
compromised in the pursuit of physical security, which is itself necessary for
individuals’ realization of liberty. Hence, democratic states’ fear of major war and
their respect for self-determination by juridical states are inextricably interrelated in
their support for the territorial integrity norm.90 This perspective was recognized by
most of the statesmen involved in the peace settlements at the end of the two world
wars, including President Wilson.91 Inis Claude has remarked that President Wilson
“created his League to make the world safe by democracy,”92 and absolutely central
to his conception of democracy was a commitment to prevent the imposition of rule
by one juridical state on another juridical state or a part of that state.
The proclivity of democratic states to eschew territorial aggrandizement is
re ected in their evolving practices regarding territorial annexations at the end of the
world wars and in their colonial policies. At the end of World War I, the Triple
Entente states and their democratic allies gained little territory. Britain and the
United States, whose President Wilson led the Ž ght for “no annexations,” did not
87. Owen 1997, 32. Malcom Anderson has identiŽ ed another in uence on liberal democrats’ support
for the sanctity of boundaries—namely, that established boundaries are “essential for ordered constitutional
politics.” Anderson 1996, 8. For a discussion of institutional and cultural factors that have
in uenced the democratic zone of peace, see Russett et al. 1993.
88. Korman 1996, 136.
89. Lloyd George 1936, 1524–26.
90. Related to this argument, the international protection of minority rights during the twentieth
century has been concerned primarily with promoting international peace or order. Preece 1998.
91. See Mayall 1990; and Knock 1992.
92. Claude 1964, 47.
Territorial Integrity 239
establish sovereignty over any new territories, and France only reestablished
sovereignty over Alsace-Lorraine. Among the smaller allies, Belgium obtained a
small border area from Germany; Denmark secured two-thirds of Scheswig-
Holstein from Germany as a result of a referendum; and Italy and Greece obtained
small, but strategic, territories from Austria and Bulgaria. The Italian and Greek
gains might be explained by the relatively new and unstable character of their
democratic regimes, which collapsed in the interwar period.93 France, Britain,
Australia, and New Zealand (as well as Japan and South Africa) secured League
mandates that previously belonged to the defeated powers, and while there was no
obligation to bring them to independence, there was an implicit responsibility to
move in this direction for the A mandates and to a lesser extent the B mandates as
well.94 Some signs of a new normative orientation on territorial issues were present
in the policies of the victorious democratic states at the end of World War I, but the
old order that sanctioned annexations and colonialism still had a signiŽ cant in uence.
As happened with the expansion of the voting franchise in the Western states,
progress in promoting liberal democratic values about territorial revisionism occurred
in stages.
In the case of the settlements at the end of World War II, no Western power
achieved territorial control over new areas (except UN trusteeships that they were to
prepare for independence),95 whereas the authoritarian Soviet Union obtained
sovereign control over signiŽ cant areas in eastern Europe as well as some of Japan’s
northern islands. The democratic Western European states still clung to the legitimacy
of colonial empires through the immediate post–World War II years, but by
the 1950s they had all committed themselves to decolonization. However, the
authoritarian regimes in Portugal and Spain resisted granting independence to their
colonies until their democratic transformations in 1974. Granting the right of
self-determination to colonies  owed from the very same ideational source as did
opposition to violent territorial revisionism—namely, a liberal democratic belief
that it is wrong to impose rule on the people of another juridical state or a part
thereof. Decolonization resulted signiŽ cantly because the Western colonial powers
“lost conŽ dence in their normative right to rule.”96 Of course, in the Cold War era
the Western states fashioned themselves into an alliance that self-consciously
identiŽ ed itself as an upholder of democratic values,97 and hence it would have been
very difŽ cult to absorb foreign territories against the wishes of their citizens and
governments.
The reluctance of democratic states to engage in territorial aggrandizement is also
seen in their infrequent territorial aggressions sinceWorld War I. Between 1919 and
1945 there were twenty territorial wars; the only democratic state to achieve
93. Gleditsch and Ward 2000.
94. See Howard 1978, 83–84; and Lyons 2000, 302–12. One clearly authoritarian ally of the Triple
Entente was Romania, and it gained considerable territory.
95. Claude 1964, 285–302.
96. See Russett et al. 1993, 35; and Jackson 1993.
97. Risse-Kappen 1995.
240 International Organization
territorial gains was Poland in 1922, and its democratic government did not have
deep social roots, as the 1926 coup d’etat indicated.98 Since 1945 the only territorial
wars that have been initiated by democratic states have been India’s absorption of
the Portuguese colony of Goa in 1961, Israel’s invasion of three Arab neighbors in
1967 following Arab sabre rattling, and Ecuador’s invasion of Peru in 1995.99 The
other thirty-seven territorial aggressions have been by nondemocratic states.
In dwelling on whether the association of territorial revisionism and major war or
a liberal respect for other states is the crucial factor that shaped Western states’
support for the territorial integrity norm, it is interesting to ask what might have
happened if the other factor had not been present. First, if democracy had not grown
steadily in theWestern world during the twentieth century, would the Western states
have opted for the sanctity of states’ borders because of the linking of territorial
revisionism and major war? They might have adopted this strategy after the carnage
of the two world wars, but it is problematic whether the policy would have endured
without a moral belief that other juridical states deserved their respect. After all, the
Western states did not support the territorial integrity norm following major wars
prior to the twentieth century (for example, the Thirty Years’ War and the
Napoleonic Wars). Second, if territorial revisionism had not been a very important
cause of major wars, would the democratic states have come down strongly for a
prohibition against coercive territorial revisionism? Again, it is doubtful (probably
more doubtful) because without a fear that territorial revisionism could lead to
regional or world wars, they probably would have opted for the right of selfdetermination
for all ethnic or national groups. Liberal states were clearly in uenced
to support the right of self-determination for juridical states, and hence the territorial
integrity norm, because warfare was so horriŽ c in the twentieth century. Indicative
of this perspective is a provision in President Wilson’s Ž rst draft of the League
Covenant: “The parties accept without reservation the principle that the peace of the
world is superior in importance to every question of political jurisdiction or
boundary.”100 A fear of a major war and a liberal democratic respect for other
juridical states clearly have a symbiotic relationship that has motivated these
countries to support the territorial integrity norm, and it is highly problematic
whether the norm would have achieved the strength it has if both factors had not
been present.
In considering the support for the territorial integrity norm by non-Western or
developing states, we must Ž rst recognize that most of them have not experienced
very destructive territorial wars in recent centuries and have not had liberal
democratic governments in the postwar era. Their backing of the norm generally
98. See Table 1a; and Holsti 1991, 213–42. On the war proneness of new and unstable democratic
states, see Gleditsch and Ward 2000.
99. Huth found that of forty-one territorial disputes occurring between 1950 and 1990, the only one
where a state with Ž fteen years of democratic rule was the challenger was the Indian invasion of Goa.
Huth 1996, 136–37. Mitchell and Prins found that of the ninety-seven territorial “militarized disputes”
occurring between 1815 and 1992, only two were between well-established democracies; and these two
occurred between 1945 and 1992. Mitchell and Prins 1999.
100. Miller 1928, 23 (Art. 3).
Territorial Integrity 241
stems from the existence of ethnic groups that overlap borders and can provoke
territorial irredentism, the military weakness of many developing states vis-a`-vis
their neighbors, and their weakness vis-a`-vis Western supporters of the norm.
However, changing economic costs and beneŽ ts of territorial aggrandizement have
undoubtedly had an in uence in recent decades.
Among developing states, many (especially in Africa) have feared territorial
aggressions because of the likelihood of irredentist claims resulting from ethnic
groups’ overlapping borders and their own military weakness.101 These developing
states made sure that the 1960 UN Declaration on Granting Independence to
Colonial Territories and Countries established that the peoples of existing colonial
territories, not ethnic groups, are eligible for self-determination and that the
territorial integrity of all states should be respected.102 Through regional organizations
and the UN, the African, Middle Eastern, and Latin American states have also
been very active in opposing territorial aggrandizement and secessionist movements
(for example, Biafra) and in securing great power backing through concerted
diplomatic advocacy.
Another concern that has been (and still is) very important in promoting support
of the territorial integrity norm among developing states is their recognition that
they will probably meet strong Western opposition if they embark on territorial
aggression. In the Cold War the Western states provided assistance to their many
allies in the developing world if they were subject to territorial revisionist threats or
attacks. Good examples are South Korea in 1950, Kuwait in 1961 (a threat of
invasion from Iraq), and Malaysia in 1963. In addition, the Western states generally
opposed their allies when they pursued territorial expansionism.103 In some areas
the Western powers sought to promote military balances between states where
territorial revisionist wars could occur.104 In a few cases, such as South Korea in
1950 and Kuwait in 1990, the Western powers actually sent signiŽ cant military
forces to repel invasions. And in Eastern Europe the NATO countries bombed Serb
forces as part of their attempt to promote respect for the boundaries of Bosnia and
Croatia. If it had not been for the Western democratic powers’ (and especially the
United States’) willingness to employ their military and economic leverage in many
territorial wars over the entire post-1945 era, the norm against coercive territorial
revisionism would not have been sustained.However, the Western powers could not
have enforced the norm in the developing world without the backing of the great
majority of non-Western states. A crucial factor in the strength of the territorial
integrity norm in the developingworld is the coincidence of most developing states’
101. See Jackson 1990; and Touval 1972.
102. Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA res.
1514, 1960.
103. In a few cases the Western powers backed territorial revisionism for strategic reasons related to
the Cold War. They favored the absorption of the Spanish Sahara by Morocco and Mauritania and East
Timor by Indonesia in 1975 prior to their independence because of the political orientation of their
independence movements during the Cold War.
104. Holsti 1996, 162–63.
242 International Organization
opposition to coercive territorial revisionism and the willingness of the Western
states to use their power to reverse territorial aggressions.
In addition to the aforementioned international conditions and beliefs sustaining
the prohibition against coercive territorial change, scholars have observed that a
number of economic trends reduce the beneŽ ts and increase the costs of coercive
territorial revisionism. These trends have undoubtedly had an important impact on
strengthening support for the norm in recent decades, but it is doubtful whether they
could be regarded as important factors in securing its diplomatic acceptance
between World War I and the 1960s. These economic trends in uence why states
are less motivated to pursue territorial aggrandizement themselves, not why they
would oppose such actions by other states.
First, the declining value of land as a factor of production in modern economies
means that the conquest of foreign territory no longer brings the same beneŽ ts that
it did in the pre-industrial era. Robert Gilpin has observed that a state can now gain
more “through specialization and international trade” than it can “through territorial
expansion and conquests.”105 This is clearly true, but land has been viewed by some
countries in the twentieth century as quite valuable. It was certainly viewed as
valuable by Germany and Japan in the 1930s and 1940s—a time when the territorial
integrity norm was beginning to attract strong support. Today the accomplishments
of countries such as South Korea and Singapore are leading to a recognition that
economic development depends Ž rst and foremost on human skills and not on
control of territory; but this recognition has not been strong enough, and it did not
come soon enough in this century, to be seen as a crucial factor in driving broad
acceptance of the territorial integrity norm.
Second, some scholars argue that the occupation of foreign territory is more
difŽ cult and costly in an era of national consciousness, and therefore states are less
prone toward territorial expansionism.106 This view is true in many circumstances,
but as Peter Lieberman’s study has pointed out, the occupation of foreign territories
can be beneŽ cial as long as the occupying states do not meet large-scale military
resistance and are willing to use considerable force to suppress local populations.107
In World War II foreign occupiers were certainly willing to adopt such policies of
suppression. We should also recognize that quite a few cases of potential territorial
revisionism today concern a desire to unite ethnic brethren in different countries,
and in this case the problem of needing to suppress local populations would not
exist.
Finally, some political observers adopt a traditional liberal stance that war
generally, and territorial wars in particular, are increasingly being rejected in this
century because they disrupt valuable economic interdependencies.108 This hypothesis
is true to a degree. However, such interdependencies were not adequate to deter
major wars throughout most of this century. In fact, such interdependencies were
105. See Gilpin 1981, 125, 132; and Kaysen 1990, 54.
106. See Deutsch 1953; Kaysen 1990, 53; and Lieberman 1996.
107. Lieberman 1996.
108. See Rosecrance 1986 and 1996; and Zacher and Matthew 1995, 124–26.
Territorial Integrity 243
quite strong in 1914.109 Their impacts are certainly stronger at the end of the
twentieth century as a result of the recent growth of international economic
transactions, but they are unlikely to assure a rejection of coercive territorial
revisionism by the majority of countries. For one thing, many states are highly
interdependent with a relatively small number of other states (often not including
contiguous states), and wars with most countries would not have major impacts on
their commercial interactions.
Another way to re ect on the roots of the territorial integrity norm is to look at
what has happened to the major incentives for territorial aggrandizement: the search
for economic gains, the search for strategic gains, and the protection of national
brethren. In the case of a striving for economic gain, the beneŽ ts of territorial
aggression are much lower now since land alone does not provide the resources it
once provided when agricultural production was a central source of wealth. Also,
the economic costs of occupying land inhabited by a different ethnic group can be
very high.
The use of territorial aggrandizement to achieve strategic gain, or an improvement
in a state’s relative power, has concerned the occupation of territories well
situated for launching military operations, the exploitation of captured land as a
source of national wealth, and the uniŽ cation of ethnic brethren in other countries
so as to increase the state’s population base. Having strategically located territory is
less important now than it once was because of the mobility of planes, missiles, and
ships—in our technologically advanced era, land provides less power potential than
it once did. Finally, increasing the population base of loyal nationals still gives a
state more power, but in this case an expansionist state would have to meet the costs
of international opposition.
The Ž nal motivation for territorial aggrandizement, protecting fellow nationals,
has concerned the protection of ethnic compatriots who are beingmistreated in other
states and the uniŽ cation of nationals in a single state. This motivation cannot be
squelched, but it is much more difŽ cult now for states to embark on attempts to
protect and absorb fellow nationals in foreign states when their civil rights are
respected. A central reason why the Western states have been so active in promoting
minority rights (particularly through the OSCE) is that they want to remove any
justiŽ cation for foreign intervention and territorial aggrandizement.
Conclusion
The decline of successful wars of territorial aggrandizement during the last half
century is palpable. In fact, there has not been a case of successful territorial
aggrandizement since 1976. Furthermore, there have been important multilateral
109. Thompson and Krasner 1989. Ethan Nadelmann has made an interesting comment about the
demise of piracy and privateering in the seventeenth century that is relevant to the gradual strengthening
of the territorial integrity norm: “The advantage to be derived from stealing from one another was giving
way to the greater advantage of stable commercial relations.” Nadelmann 1990, 487.
244 International Organization
accords in support of the norm and frequent interventions by international organizations
to force states to withdraw from foreign countries.
Clearly, a central source of the norm has been the industrialized world’s fear that
territorial revisionism could ignite a major war that would cause great human
suffering. Several scholars have observed that this revulsion against the imposition
of physical pain has been central to the strengthening of a variety of security and
human rights regimes.110 The experiences of the two world wars, a general
understanding of territorial revisionism’s encouragement of major wars, and a fear
of nuclear weapons drove the development of the territorial integrity norm at key
points in its multilateral legitimization. But one cannot dismiss the ideational
element of democratic values among Western, and an increasing number of
non-Western, countries. The Western democratic states were the driving force
behind the norm in 1919, 1945, and 1975. A recent study on the CSCE highlights
the impacts of democratic values on respect for interstate borders. According to
Gregory Flynn and Henry Farrell, these values orient states to the peaceful
settlement of disputes and respect for the territory and institutions of other countries.
111 They also stress that democratic countries place respect for states’ territorial
integrity before self-determination for ethnic communities because this strategy best
realizes their two values of self-governance and freedom from violence—or liberty
and order. They note that “the norm of [national] self-determination was not only
subordinated to the norm of inviolability of borders; it was also effectively removed
as an independent principle of international relations in Europe separable from the
norm of democracy.”112 In other words, for most Western liberals, self-determination
means self-governance for the peoples of juridical territorial states.
Wars of territorial aggrandizement since 1945 have, for the most part, concerned
developing states’ dissatisfaction with the boundaries they inherited from the
colonial powers; but these quarrels are largely coming to an end. On the whole, what
is remarkable is the degree of support for the territorial order by developing
countries. At the heart of their support have been their fear of territorial aggrandizement
based on con icting treaties, overlapping ethnic groups, and their military
weakness; but the leverage of the Western states has also had a major impact in
assuring respect for the norm. If the Western states had not backed the territorial
status quo in the developing world, a good number of territorial aggressions would
have succeeded, and the commitment of the developing states to the territorial
integrity norm would have probably declined markedly.
One should not discount the contribution of economic trends in the strengthening
of the territorial integrity norm, especially in recent decades. Of great import is the
signiŽ cance of a stable territorial order to the operation of the increasingly interdependent
international economy: “The globalizing economy requires the backing
110. Finnemore and Sikkink 1999, 267–68.
111. Flynn and Farrell 1999.
112. Flynn and Farrell 1999, 527 and passim. On the change in Western international practices that
 ow from the application of liberal democratic values, see also Adler 1998.
Territorial Integrity 245
of territorially based state power to enforce its rules.”113 At the same time there is
no indication that economic discourses and economic motivations sustained the
emergence of the norm—especially in the wake of the two world wars. In fact,
while these economic trends have reduced states’ perceptions of beneŽ ts and
increased states’ perceptions of costs of territorial aggrandizement, they do not
account for why states are so strongly opposed to territorial aggressions by other
states.
There is not a simple answer to why the territorial integrity norm has emerged as
a central pillar of the international order. Different reasons were key for two major
groupings of states, and the coincidence of several factors seems to have been
crucial to their backing. These key factors have wrought a major change in the
international territorial order. Boundaries have not been frozen, but states have been
effectively proscribed from altering them by force. The multistate political and
security order is clearly stronger than many political observers think in that the
society of states has largely eliminated what scholars have identiŽ ed as the major
source of enduring rivalries and the frequency and intensity of warfare.114
It is valuable at this point to address brie y the meaning of the emergence of a
strong territorial integrity norm for the international order. On the one hand, the
Ž ndings presented here support Stephen Krasner’s judgment that the archetypal
features of the Westphalian system, such as effective internal control and respect for
state territoriality, have varied considerably over recent centuries.115 On the other
hand, certain changes have taken place in the twentieth century that demarcate our
present era from past eras, and they should not be viewed as mere stages of a cycle.
In particular, a change in the normative status of state territoriality constitutes a
basic transformation in the global political order. As Vasquez has remarked,
“Territorial issues are so fundamental that the behavior associated with their
settlement literally constructs a world order.”116 It is likely that the world is
“witnessing emerging fragments of international security communities alongside the
traditional war system that continues elsewhere.”117 Contrary to what one might
initially think, the underlying premise of the territorial integrity norm is not a
commitment to separateness but a commitment to a global political order in which
people have excised a major source of international violence. In this sense mutually
recognized and respected boundaries are not what separate peoples but what binds
them together.
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250 International Organization

THE CASE FOR CANADA’S RECOGNITION OF
THE REPUBLIC OF ARTSAKH (NAGORNO-KARABAKH)
AS A MEASURE OF THE RESPONSIBILITY TO PROTECT

anccanada.org/wp-content/uploads/2020/12/The-Case-for-Canadas-Recognition-of-Artsakh-under-R2P-25-Nov-2020.pdf>.

25 November 2020
Authors*
Sheila Paylan, B.Sc., B.C.L./J.D. (McGill), LL.M. (London)
Anaïs Kadian, B.A. (York), B.C.L./J.D. (McGill)
Giselle Davidian, B.Sc., M.Env.Sc. (Toronto), B.C.L./LL.B. (McGill)
Vrouyr Makalian, B.C.L./LL.B. (McGill), LL.M. (Ottawa)
Emilie Kokmanian, LL.B./J.D. (Montréal)
Kami Temisjian, LL.L. (Ottawa)
Bela Kosoian, B.A., M.A., J.D. (Ottawa)
* The views expressed in this Paper are the authors’ own and do not necessarily represent the
views of any organizations with which they may be affiliated. The authors wish to thank
Manoug Alemian and Shahen Mirakian for their invaluable support and guidance
throughout the preparation of this Paper.
1
TABLE OF CONTENTS
I. Introduction …………………………………………………………………………………… 2
II. Responsibility to Protect (R2P) and Obligation to Prevent ………. 9
III. Canada’s Implication and Duty to Act ……………………………………. 12
IV. Remedial Secession/Recognition of Artsakh …………………………… 15
A. Artsakh has always been independent of Azerbaijan …………….. 17
i. The League of Nations never recognized Azerbaijan ………………………. 17
ii. The USSR illegally annexed Artsakh to the Azerbaijan SSR ………….. 18
iii. Artsakh legally seceded from the USSR ………………………………………… 20
iv. Artsakh is an independent State under international law ………………. 22
B. Artsakh’s remedial secession/recognition is warranted ………… 25
i. Azerbaijan’s claims to Artsakh are not valid …………………………………. 25
a. Azerbaijan can no longer invoke territorial integrity …………………. 25
b. Azerbaijan’s reliance on the 1993 UN Resolutions is inapposite …. 29
ii. Azerbaijan commits atrocious crimes against Armenians ………………. 31
a. History of persecution and pogroms …………………………………………. 31
b. Armenophobia and hate speech ……………………………………………….. 32
c. Present war crimes and atrocities ……………………………………………. 35
V. Conclusion ………………………………………………………………………………….. 44
2
I. Introduction
1. At the end of June 2020, 170 of the 193 member states of the United
Nations (“UN”) endorsed the UN Secretary-General’s appeal for a global
ceasefire due to the threat of the novel coronavirus pandemic (“COVID-19”).
Armenia was among the signatories; Azerbaijan, notably, was not.1
2. On 27 September 2020, Azerbaijan, backed by Turkey, initiated a
large-scale, unprovoked war against the Republic of Nagorno-Karabakh (also
known as, and hereinafter interchangeably, “Artsakh”),2 an independent
breakaway State predominantly inhabited by ethnic Armenians since the 5th
century BC, yet still internationally recognized as part of Azerbaijan despite
repeated assertions by the Armenians of Artsakh of their legal right to selfdetermination
for more than 30 years.3
3. Over the course of the next 44 days, Azerbaijan unrelentingly and
intentionally targeted and attacked civilians and civilian objects in Armenia
and Artsakh, including cultural and religious sites, with drones, as well as
illegal cluster munitions and other weapons banned by international
humanitarian law, including chemical weapons.4 Turkey supported
1 United Nations, “170 signatories endorse UN ceasefire appeal during COVID crisis”, 24
June 2020, retrieved from https://news.un.org/en/story/2020/06/1066982.
2 Political Geography Now, “All About Nagorno-Karabakh’s 2017 Name Change”, 30 January
2018, retrieved from https://www.polgeonow.com/2018/01/artsakh-name-change-nagornokarabakh.
html. A constitutional referendum was held in the Republic of Nagorno-Karabakh
on 20 February 2017, pursuant to which the name of the Republic was officially changed to
the Republic of Artsakh.
3 For more on the history of the Armenians of Artsakh’s struggle for independence, see infra
Section IV(A): Artsakh has always been independent of Azerbaijan. See also, inter alia,
Shahen Avakian, Nagorno Karabakh: Legal Aspects, 5th ed. (Moscow: MIA Publishers, 2015),
pp. 16-25.
4 See, e.g., The Human Rights Ombudsman of the Republic of Artsakh (“HRORA”), “Interim
Report on the Azerbaijani Atrocities against Artsakh Population in September 2020”, 1
October 2020, retrieved from https://artsakhombuds.am/sites/default/files/2020-10/Artsakh-
Ombudsman-report-on-Azerbaijan-attrocities-01.10.2020_4.pdf; The Human Rights Defender
of the Republic of Armenia (“HRDRA”), “Ad Hoc Report on Fact-Finding Activities in Villages
of Gegharkunik Province of Armenia Damaged by Azerbaijani Military Attacks”, 30
September – 1 October 2020, retrieved from
https://www.ombuds.am/images/files/dc1b379419a1a9aaeec5191128277502.pdf; HRDRA, “Ad
Hoc Public Report on Azerbaijani Drones’ Targeted Attacks against Peaceful Population of
Armenia and Artsakh in Grave Breach of International Law”, October 2020, retrieved from
https://www.ombuds.am/images/files/de3634c257bb698735db318a33f280bf.pdf; HRORA,
“Updated Edition of the Second Interim Report on the Azerbaijani Atrocities against the
Artsakh Population in September-October 2020”, 18 October 2020, retrieved from
https://artsakhombuds.am/sites/default/files/2020-10/new-Artsakh-Ombudsman-updatedsecond-
interim-report-on-the-Azerbaijani-atrocities-in-September-October-2020-
18.10.2020_3.pdf; HRORA, “Ad Hoc Public Report on the Azerbaijani Targeted Attacks
against the St. Holy Savior Ghazanchetsots Cathedral of Shushi, Artsakh (Nagorno
Karabakh) as a War Crime and Crime against Humanity”, 20 October 2020, retrieved from
https://artsakhombuds.am/sites/default/files/2020-10/Report_Ghazanchetsots_Cathedral_-
3
Azerbaijan’s attacks by supplying state-of-the-art weapons and drones (some
of which contained Canadian technology, as set out in Section III below) and
directly participating in the hostilities,5 as well as hiring and sending jihadist
mercenaries from Syria to fight against Armenians,6 which is also prohibited
under international law.7 Artsakh, by contrast, had only Armenia to count on
20.10.2020.pdf; HRDRA, “Ad Hoc Report on Azerbaijani Military Attacks against Davit Bek
and Agarak Villages of Syunik Province”, 30 October – 3 November 2020, retrieved from
https://www.ombuds.am/images/files/86cfd80eb354d0f2a600831371bb32c3.pdf; HRDRA and
HRORA, “Joint Ad Hoc Public Report on the Use of Incendiary Ammunition of Mass
Destruction (Incendiary Weapon) Against Civilian Objects of Artsakh (Nagorno-Karabakh)
by the Azerbaijani Armed Forces”, November 2020, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Report-On-White-Phosphorus.pdf;
HRORA, “Ad Hoc Report on the Children’s Rights Affected by the Azerbaijani Attacks
against the Republic of Artsakh (Nagorno-Karabakh)”, 9 November 2020, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Artsakh-Ombudsman-report-onchildren-
rights-09.11.2020_0.pdf. The HRDRA and HRORA jointly issued their “Fo[u]rth Ad
Hoc Report on Torture and Inhuman Treatment of Members of Artsakh Defence Army and
Captured Armenians by Azerbaijani Armed Forces (from November 4-18, 2020)”
confidentially (“Fourth Report on POWs”). This report can be made available on request by
contacting the Human Rights Defenders of Armenia or Arstakh directly. For more details on
the extent of the war crimes and other atrocities committed against the population of
Artsakh, see infra Section IV(B)(ii): Azerbaijan commits atrocious crimes against Armenians.
5 See, inter alia, Dorian Jones, “Turkey Vows Support for Azerbaijan in Escalating Nagorno-
Karabakh Conflict”, Voice of America, 28 September 2020, retrieved from
https://www.voanews.com/south-central-asia/turkey-vows-support-azerbaijan-escalatingnagorno-
karabakh-conflict; Steven Chase, “Canadian-made targeting gear used in air strikes
against Armenians, evidence shows”, The Globe and Mail, 30 October 2020, retrieved from
https://www.theglobeandmail.com/politics/article-canadian-made-targeting-gear-used-in-airstrikes-
against-armenians/; Andrew E. Kramer, “Armenia and Azerbaijan: The Conflict
Explained”, The New York Times, 15 November 2020, retrieved from
https://www.nytimes.com/article/armenian-azerbaijan-conflict.html.
6 In this respect, UN human rights experts have confirmed: “[T]here were widespread reports
that the Government of Azerbaijan, with Turkey’s assistance, relied on Syrian fighters to
shore-up and sustain its military operations in the Nagorno-Karabakh conflict zone,
including on the frontline. The fighters appeared to be motivated primarily by private gain,
given the dire economic situation in the Syrian Arab Republic […]. In case of death, their
relatives were reportedly promised financial compensation and Turkish nationality. […] Turkey engaged in large-scale recruitment and transfer of Syrian men to Azerbaijan through
armed factions, some of which are affiliated with the Syrian National Army.” See
UN Working Group on the use of mercenaries as a means of violating human rights and
impeding the exercise of the right of peoples to self-determination,
“Mercenaries in and around the Nagorno-Karabakh conflict zone must be withdrawn”,
11 November 2020, retrieved from
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26494&LangID=E
&fbclid=IwAR0_JnkNB7eo-EgeedExyVrl0wruHYff4BwhgLJDEQPSFAFDS9Ax3DBQxvo.
See also, inter alia, Syrian Observatory for Human Rights, “Nagorno-Karabakh battles |
Over 2,000 mercenaries sent to Azerbaijan, nearly 135 killed so far”, 18 October 2020,
retrieved from https://www.syriahr.com/en/188669/.
7 See International Convention Against the Recruitment, Use, Financing and Training of
Mercenaries, which entered into force on 20 October 2001. Azerbaijan acceded to this
Convention on 4 December 1997, and Armenia ratified it on 27 October 2020.
4
to come to its aid, as its calls to the rest of the international community were
consistently ignored.8
4. On 7 October 2020, the Global Center for the Responsibility to Protect
issued an “Atrocity Alert” noting the indiscriminate shelling of civilians and
civilian infrastructure, the use of hired foreign mercenaries and the resulting
important displacement of populations in and around Artsakh.9 On 22
October 2020, a group of 80 genocide scholars issued a joint statement on the
imminent genocidal threat deriving from Azerbaijan and Turkey against the
Armenians of Artsakh, declaring that “already a case can be made that there
is conspiracy to commit genocide, direct and public incitement to commit
genocide, and attempt to commit genocide”.10 The UN Secretary-General also
noted that COVID-19 had doubled in Armenia and increased 80% in
Azerbaijan since the beginning of hostilities.11 Meanwhile, the death toll
rapidly rose to the thousands,12 and more than 85% of Artsakh’s indigenous
Armenian population of 150,000 was forcibly displaced from their ancestral
lands.13
5. Needless to say, the combined forces of Armenia and Artsakh alone
could prove no match for those of Azerbaijan and Turkey.14 Azerbaijan’s use
8 Artsakh’s Human Rights Ombudsman, Artak Beklaryan, who lost his sight from a
landmine explosion when he was a child during the 1988-1994 Nagorno-Karabakh war,
created a campaign under the hashtag “#DontBeBlind” calling on the international
community to focus attention on, and take action against, war crimes committed by
Azerbaijan against the population of Artsakh. See https://twitter.com/Artak_Beglaryan.
9 Global Center for the Responsibility to Protect, “Atrocity Alert No. 223: Nagorno-Karabakh,
Central African Republic and Sudan”, 7 October 2020, retrieved from
https://www.globalr2p.org/publications/atrocity-alert-no-223-nagorno-karabakh-centralafrican-
republic-and-sudan/.
10 See Open letter by members of the International Association of Genocide Scholars (IAGS),
22 October 2020, retrieved from https://www.voltairenet.org/article211404.html. See also
Ewelina U. Ochab, “Shortly Before Ceasefire, Experts Issue A Genocide Warning For The
Situation In Nagorno-Karabakh”, Forbes, 11 November 2020, retrieved from
https://www.forbes.com/sites/ewelinaochab/2020/11/11/shortly-before-ceasefire-experts-issuea-
genocide-warning-for-the-situation-in-nagorno-karabakh/?sh=440086e4d005.
11 The Independent, “‘The only winner is the pandemic’: United Nations chief calls for ceasefires
in major global conflicts to focus on pandemic”, 22 October 2020, retrieved from
https://www.independent.co.uk/news/un-ceasefire-coronavirus-yemen-afghanistan-armeniaazerbaijan-
pandemic-covid-19-b1235074.html.
12 See, e.g., BBC News, “Nagorno-Karabakh: Nearly 5,000 dead in conflict, Putin says”,
22 October 2020, retrieved from https://www.bbc.com/news/world-europe-54652704.
13 See, e.g., United Nations Children’s Fund, “UNICEF statement on one month of fighting in
and beyond Nagorno-Karabakh”, 28 October 2020, retrieved from
https://www.unicef.org/press-releases/unicef-statement-one-month-fighting-and-beyondnagorno-
karabakh.
14 For a side-by-side comparison of the defence budgets and military capabilities of Armenia
and Azerbaijan, see Al Jazeera, “Infographic: Military arsenals of Armenia and Azerbaijan”,
1 October 2020, retrieved from https://www.aljazeera.com/news/2020/10/1/infographicmilitary-
arsenals-of-armenia-and-azerbaijan. Between 2009 and 2018, Azerbaijan’s military
spending totaled almost USD$24 billion, according to updated data from the Stockholm
5
of force against Artsakh was therefore not only illegal on the basis of its
unprovoked aggression, but also grossly disproportionate and unjust in its
means and conduct. Facing impossible odds and total extermination, on 9
November 2020, Armenia (on behalf of Artsakh) was left no other choice but
to sign a highly prejudicial ceasefire statement brokered by Russia
(“Ceasefire Statement”) that, inter alia, allows Azerbaijan to hold on to areas
of Artsakh that it took during the conflict and requires Armenia to withdraw
from several other adjacent areas (see map in Annex).15 With nine bullet
points, the Ceasefire Statement constitutes more than a mere ceasefire, but
much less than an actual peace agreement, and does not resolve issues at the
core of the conflict. Crucially, there is no mention of the status of Artsakh
itself as a subject of ongoing dialogue, an omission given extra weight by
President Aliyev of Azerbaijan saying there will be no such discussion as long
as he is president.16
6. The third and fifth bullet points of the Ceasefire Statement provide for
the deployment of Russian peacekeepers for a minimum of five years and
that of “[a] peacekeeping center […] to monitor the ceasefire”. Despite
Canada having urged Turkey to “remain outside the conflict” after the
Ceasefire Statement was signed,17 Russia agreed to allow Turkey to
International and Peace Research Institute (“SIPRI”). Armenia spent slightly more than
USD$4 billion in the same period. See SIPRI Military Expenditure Database, retrieved from
https://www.sipri.org/databases/milex. Turkey’s military expenditure was USD$20.4 billion
just in 2019 alone, ranking it the 16th highest military spender in the world. See Nan Tian et
al., “Trends in World Military Expenditure, 2019”, SIPRI Fact Sheet, April 2020, retrieved
from https://www.sipri.org/sites/default/files/2020-04/fs_2020_04_milex_0_0.pdf. It is also
worth noting that, with a GDP of USD$40.7 billion in 2017, Azerbaijan’s economy is almost
four times as large as Armenia’s economy at USD$11.5 billion, and Azerbaijan’s population
of ca. 9.8 million is more than three times the size of Armenia’s population of ca. 3 million.
No recent verified statistical information exists on Nagorno-Karabakh, but the de facto
authorities state a reported population of ca. 146,000 and a reported GDP of ca. USD$480
million for 2016, although experts consider these figures to likely be inflated. See David Saha
et al., “The economic effect of a resolution of the Nagorno-Karabakh conflict on Armenia and
Azerbaijan”, Berlin Economics, 15 June 2018, pp. 10-11, retrieved from https://berlineconomics.
com/wp-content/uploads/The_Economic_Effect_Of_A_Resolution_Of_The_Nagorno-
Karabakh_Conflict.pdf.
15 See The Prime Minister of the Republic of Armenia, “Statement by the Prime Minister of
the Republic of Armenia, the President of the Republic of Azerbaijan and the President of the
Russian Federation”, 10 November 2020, retrieved from
https://www.primeminister.am/en/press-release/item/2020/11/10/Announcement/. See also
President of Russia, “Statement by the President of the Republic of Azerbaijan, Prime
Minister of the Republic of Armenia and President of the Russian Federation”, 10 November
2020, retrieved from http://en.kremlin.ru/events/president/news/64384.
16 Laurence Broers, “Russia’s Peace Imposed on Armenia-Azerbaijan Bloodshed”, Chatham
House, 11 November 2020, retrieved from https://www.chathamhouse.org/2020/11/russiaspeace-
imposed-armenia-azerbaijan-bloodshed. See also infra, fn. 23.
17 Statement by François-Philippe Champagne, Minister of Foreign Affairs of Canada,
Twitter, 11 November 2020, retrieved from
https://twitter.com/FP_Champagne/status/1326690424237543425.
6
participate in the establishment of the “peacekeeping center” and monitoring
process.18 Turkey’s involvement is in no way envisaged by the terms of
Ceasefire Statement, and, considering the direct role it played in the conflict,
can in no way be perceived as neutral or reasonable in the eyes of the
international community, let alone acceptable to Armenia or Artsakh.
7. As such, the Ceasefire Statement does not change the dangerously
fragile situation of the Armenians of Artsakh, who remain extremely
vulnerable in light of the current humanitarian crisis and the lack of final
status for Artsakh.19 Moreover, the conditions under which Armenia had to
accept the terms of the Ceasefire Statement bring into question their very
validity.20 Politicians and analysts have criticized the terms of the Ceasefire
Statement as being “unfair”, “tragic”, even “disastrous” for Armenia and
Artsakh, recognizing the need for Western intervention to achieve a balanced
and lasting settlement that preserves Artsakh’s right to self-determination.21
18 See Reuters, “Erdogan says Turkey, Russia to monitor Karabakh ceasefire”, 11 November
2020, retrieved from https://ca.reuters.com/article/idUSKBN27R1CP; Siranush
Ghazanchyan, “Russia, Turkey to jointly monitor the Nagorno Karabakh ceasefire”, Public
Radio of Armenia, 12 November 2020, retrieved from
https://en.armradio.am/2020/11/12/russia-turkey-to-jointly-monitor-the-ceasefire-in-nagornokarabakh/;
Al Jazeera, “Turkey seeks approval to deploy peacekeepers in Azerbaijan”, 16
November 2020, retrieved from https://www.aljazeera.com/news/2020/11/16/turkey-seeksapproval-
to-deploy-peacekeepers-in-azerbaijan.
19 International Crisis Group has warned that “the safety of thousands of ethnic Armenians
remaining in the region is a serious concern”. See International Crisis Group, “Getting from
Ceasefire to Peace in Nagorno-Karabakh”, 10 November 2020, retrieved from
https://www.crisisgroup.org/europe-central-asia/caucasus/nagorno-karabakh-conflict/gettingceasefire-
peace-nagorno-karabakh.
20 Special agreements such as ceasefires and peace agreements are usually concluded in the
context of armed conflict, where, almost inevitably, force is used. Article 52 of the 1969
Vienna Convention on the Law of Treaties stipulates that a treaty is void “if its conclusion
has been procured by the threat or use of force in violation of the principles of international
law embodied in the Charter of the United Nations”. How does this rule relate to special
agreements? According to one view, “[a] treaty is only procured by coercion if the use or
threat of force is directly intended to bring about the treaty or if the treaty is aimed at
maintaining a situation which was created by an illegal use of force”. Another view is that “a
treaty is only invalid if the victim of the coercion did not have any other choice but to
conclude the treaty”, thus very narrowly construing the rule. It can be anticipated that
ambiguity in the validity of an agreement in the light of this rule will most likely arise in
relation to ceasefire agreements. See International Committee of the Red Cross,
“Commentary on the Second Geneva Convention” (Cambridge: Cambridge University Press,
2017), Article 6: Special Agreements, paras. 988, 1014-1015, retrieved from https://ihldatabases.
icrc.org/ihl/full/GCII-commentary.
21 See, e.g., Statement by Jean-Yves Le Drian, Minister for Europe and Foreign Affairs, 10
November 2020, retrieved from https://www.diplomatie.gouv.fr/en/countryfiles/
azerbaijan/news/article/nagorno-karabakh-statement-by-jean-yves-le-drian-minister-foreurope-
and; Statement by Brad Sherman, United States Congressman, Twitter,
11 November 2020, retrieved from
https://twitter.com/BradSherman/status/1326748284191465472; Philippe Raffi Kalfayan, “A
Closer Look at the Trilateral Agreement to End War”, The Armenian Mirror-Spectator, 16
7
Armenia considers the matter of Artsakh’s status and independence to
remain a live issue of fundamental importance,22 whereas Azerbaijan has
clearly demonstrated that it is not ready to accept or even discuss the status
or independence of Artsakh in the long run,23 and this is what makes the
conflict so dangerous. Therefore, help from the international community is
crucial to maintain peace in the region and to resolve the conflict.
8. Several parts of Artsakh have fallen under the control of Azerbaijan,
including the city of Shushi (of great religious and cultural importance to
Armenians), thus forcing Armenians to flee their homes and creating a real
risk of cultural genocide for the hundreds of Armenian churches and heritage
sites left behind.24 Notable scholars, including Noam Chomsky and Cornel
West, have warned that the wholesale human and cultural destruction in
November 2020, retrieved from https://mirrorspectator.com/2020/11/16/a-closer-look-at-thetrilateral-
agreement-to-end-war/. See also Statement by François-Philippe Champagne,
Minister of Foreign Affairs of Canada, Twitter, 11 November 2020, retrieved from
https://twitter.com/FP_Champagne/status/1326690424237543425 (expressing “support [for] the Armenian people during this most difficult time”).
22 See Statement by Nikol Pashinyan, Prime Minister of the Republic of Armenia,
12 November 2020, retrieved from https://www.primeminister.am/en/statements-andmessages/
item/2020/11/12/Nikol-Pashinyan-Speech/ (“The final settlement of the Karabakh
issue and the status of Artsakh is of fundamental importance. In this regard, our task has
not changed: the international recognition of the Artsakh Republic is becoming an absolute
priority, and in fact, there are now more weighty arguments for the international recognition
of Artsakh.”). See also Ministry of Foreign Affairs of the Republic of Armenia, “Foreign
Minister Zohrab Mnatsakanyan held phone conversations with the representatives of the
OSCE Minsk Group Co-Chair countries”, 12 November 2020, retrieved from
https://www.mfa.am/en/press-releases/2020/11/12/fm_phone_calls/10642.
23 See Statement by Ilham Aliyev, President of the Republic of Azerbaijan, 10 November
2020, retrieved from https://www.news.az/news/president-ilham-aliyev-this-statementcontains-
not-single-word-about-status-of-nagorno-karabakh (“You probably noticed that this
statement contains not a single word about the status of Nagorno-Karabakh! Where are the
demands of the Armenian side that Nagorno-Karabakh should be granted independence? […] Not a word, Pashinyan! What happened? What is it, Pashinyan? This will probably remain
the talk of the town for many years. What happened, Pashinyan? You were going to pave a
road to Jabrayil. You danced. But where is the status? The status went to hell, it failed, it
was scattered to smithereens, it is not and will not be there. As long as I am President, there
will be no status”). See also Katerina Medvedeva, “Aliyev: the possibility of a special status
for Nagorno-Karabakh is excluded”, Gazeta.Ru, 17 November 2020, retrieved from
https://www.gazeta.ru/politics/news/2020/11/17/n_15239629.shtml (in Russian).
24 The Azerbaijani government has, over the past 30 years, been engaging in a systematic
erasure of the country’s historic Armenian heritage, as exemplified by its destruction in
recent years of 89 medieval churches, 5,840 intricate cross-stones, and 22,000 tombstones.
See, e.g., Simon Maghakyan and Sarah Pickman, “A Regime Conceals Its Erasure of
Indigenous Armenian Culture”, Hyperallergic, 18 February 2019, retrieved from
https://hyperallergic.com/482353/a-regime-conceals-its-erasure-of-indigenous-armenianculture/;
Dale Berning Sawa, “Monumental loss: Azerbaijan and ‘the worst cultural genocide
of the 21st century’”, The Guardian, 1 March 2019, retrieved from
https://www.theguardian.com/artanddesign/2019/mar/01/monumental-loss-azerbaijancultural-
genocide-khachkars.
8
Artsakh is “part of the expansive and violent territorial policy of President
Recep Tayyip Erdoğan of Turkey to re-establish a version of Ottoman power
in the region”.25 Since the Ceasefire Statement took effect on 10 November
2020, incoming Russian peacekeepers have begun to document the aftermath
of the conflict,26 and reports are increasing of gruesome atrocities including
murder, torture, mutilation, and other cruel treatment being committed by
Azerbaijani forces against Armenian prisoners of war who remain in their
captivity, as well of against Armenians civilians who choose to remain in, or
return to, their homes in Artsakh.27
9. It is the position of this Paper that Canada’s moral and legal
obligations to prevent further atrocities against the Armenians of Artsakh
have been triggered, both generally as a result of the doctrine of the
Responsibility to Protect (“R2P”), and also specifically by virtue of its
authorization of the sale of drone technology to Turkey which was used to
25 Gayatri Chakravorty Spivak et al., “A Call for Lasting Peace in Nagorno-Karabakh”, Los
Angeles Review of Books, 16 October 2020, retrieved from https://lareviewofbooks.org/shorttakes/
lasting-peace-nagorno-karabakh/.
26 Radio Free Europe Radio Liberty, “Vision Of Hell: The Aftermath Of Fighting Around Key
Nagorno-Karabakh City”, 13 November 2020, retrieved from https://www.rferl.org/a/masscasualties-
of-nagorno-karabakh-conflict-around-shushi/30947028.html.
27 See, e.g., Footage of four Armenian civilians kidnapped by Azerbaijani forces on 11
November 2020 and being forced to chant pro-Azerbaijani slogans, retrieved from
https://www.instagram.com/p/CHoiSiTHQiD/?igshid=1cc360u2lx03c; Footage of Azerbaijani
soldiers cutting the ears off of an Armenian who refuses to leave his home, retrieved from
https://twitter.com/ASBMilitary/status/1327827599121375233; Footage of elderly ethnic
Armenian man without shoes being beaten and publicly humiliated while in custody of
Azerbaijani forces, retrieved from https://www.ombuds.am/en_us/site/ViewNews/1385;
Statement of Artak Beglaryan, Human Rights Defender of Artsakh, on 21 November 2020,
retrieved from https://twitter.com/Artak_Beglaryan/status/1330243372372594697 (“#Urgent!
As a result of body exchange in #Shushi, 3 #Artsakh/#Karabakh killed civilians were found
with signs of brutal mutilations by #Azerbaijan: cut off ears, taken off eye, partially
beheaded body. Systematic #WarCrimes continue against #Armenian civilians &
combatants”). See also Statement by Baroness Caroline Cox, Member of the U.K. House of
Lords, 10 November 2020, retrieved from https://www.politicshome.com/thehouse/article/theuk-
government-must-change-tack-and-urgently-bring-to-justice-those-responsible-for-warcrimes-
against-the-armenian-people (“After 45 days of intense conflict, a ceasefire brokered
by Russia has finally been agreed[…]. Serious concerns nevertheless remain, with reports
emerging of brutality inflicted on military and civilian prisoners, including torture and
beheadings, with claims that equivalent brutalities have been perpetrated by jihadists who
receive payment for every Armenian beheaded. There is an urgent need for the British
Government and all relevant international authorities to bring to justice those responsible
for such war crimes, and to take effective measures to prevent Azerbaijan from abusing and
killing these prisoners, whom they have already captured or may capture during the
ceasefire evacuation.”). In a televised interview on 13 November 2020, General Hüseynov
Camal of the Azerbaijani forces menacingly declared (speaking Armenian) that, after
Karabakh, they would be coming after every last Armenian (repeatedly calling them “dogs”)
in Armenia until Yerevan, referring to it as “West Azerbaijan”. See Bilsəydilər erməni dilini
bilirəm dərimi soyardılar – Hüseynov Camal, YouTube, 13 November 2020, retrieved from
https://www.youtube.com/watch?v=YworvlLKGyQ.
9
commit atrocity crimes against Armenians. It is submitted that, as an
immediate remedial measure, Canada must recognize the independence of
Artsakh and call on all other States to do the same. Failing to act means
letting Azerbaijan and Turkey end the Armenian presence in Artsakh,
sentencing the Armenians to ethnic cleansing, and, through them,
condemning democracy.28
10. Although it is certainly not the only measure that could or should be
implemented, for the reasons developed below, remedial recognition is
imperative in light of the fundamental right of the people of Artsakh to selfdetermination
and secession, particularly after having been subjected to
systemic discrimination, repression and atrocity crimes. It is also an
appropriate remedy to the harm caused by Canada permitting the sale of
weapons technology to Turkey despite a ban in place since October 2019, as
well as the most effective diplomatic measure to ensure a definitive and
sustainable resolution to the conflict and prevention of further atrocities
including ethnic cleansing and the risk of genocide.
II. Responsibility to Protect (R2P) and Obligation to Prevent
11. Informed by the foundational 2001 report of the Canadian-sponsored
International Commission on Intervention and State Sovereignty,29 R2P is a
global commitment to prevent and halt genocide, ethnic cleansing, other
crimes against humanity and major war crimes. In the 15 years since its
unanimous adoption by all UN member states at the 2005 World Summit,30
28 See Open letter from Belgian deputies, academics and civil society representatives, “La
région du Caucase en proie à la violence: les Arméniens du Nagorno-Karabagh ont droit à la
vie, leur autodétermination est légitime”, Le Soir, 28 October 2020, retrieved from
https://plus.lesoir.be/334453/article/2020-10-28/la-region-du-caucase-en-proie-la-violence-lesarmeniens-
du-nagorno-karabagh-ont.
29 Gareth J. Evans and Mohamed Sahnoun, The Responsibility to Protect: Report of the
International Commission on Intervention and State Sovereignty (Ottawa: International
Development Research Centre, 2001).
30 See UN General Assembly Resolution 60/1, “2005 World Summit Outcome Document”
A/RES/60/1, 16 September 2005, paras. 138 (“Each individual State has the responsibility to
protect its populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. This responsibility entails the prevention of such crimes, including their
incitement, through appropriate and necessary means. We accept that responsibility and will
act in accordance with it. The international community should, as appropriate, encourage
and help States to exercise this responsibility and support the United Nations in establishing
an early warning capability”), 139 (“The international community, through the United
Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other
peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect
populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In
this context, we are prepared to take collective action, in a timely and decisive manner,
through the Security Council, in accordance with the Charter, including Chapter VII, on a
case-by-case basis and in cooperation with relevant regional organizations as appropriate,
should peaceful means be inadequate and national authorities are manifestly failing to
10
near-universal agreement has been forged around the principle that all
governments have a responsibility to protect populations from mass atrocity
crimes, both within and beyond their borders.
12. R2P contains three pillars: (1) state responsibility to protect its own
population; (2) the international community’s duty to assist states in
fulfilling their duty to prevent and protect; and (3) the international
community’s responsibility to take timely and decisive action through
peaceful means, failing which it may use more forceful means, in a manner
consistent with international law.31 As such, R2P stipulates that if a country
is unable or unwilling to protect its civilians from mass atrocities, then the
international community must act swiftly to fill the protection void.
13. As the UN Secretary-General underscored, R2P is “firmly anchored in
well-established principles of international law. Under conventional and
customary international law, States have obligations to prevent and punish
genocide, war crimes, and crimes against humanity.”32 By way of example,
Articles 40 and 41(1) of the International Law Commission’s Articles of State
Responsibility provide that certain breaches of international law may be so
grave as to trigger not only a right but also an obligation (i.e. a positive duty)
of cooperation among states to foster compliance with the law.
14. UN member states also have obligations to take steps to ensure that
they do not contribute to mass atrocities outside of their borders and, at
minimum, refrain from exacerbating atrocity crimes of other states.33
Common Article 1 of the Geneva Conventions of 12 August 1949 stipulates
that it is the duty of States to respect and ensure respect for the Convention
in all circumstances and, consequently, to prevent war crimes. The duty to
protect their populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. We stress the need for the General Assembly to continue consideration of the
responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes
against humanity and its implications, bearing in mind the principles of the Charter and
international law. We also intend to commit ourselves, as necessary and appropriate, to
helping States build capacity to protect their populations from genocide, war crimes, ethnic
cleansing and crimes against humanity and to assisting those which are under stress before
crises and conflicts break out.”)
31 UN General Assembly, “Implementing the Responsibility to Protect – Report of the
Secretary-General”, A/63/677, 12 January 2009.
32 Ibid., para. 3. See also UN General Assembly, “Prevention of Genocide – Report of the
Secretary-General”, A/HRC/41/24, 8 October 2019, para. 4 (“The duty to prevent genocide,
crimes against humanity and war crimes is well established both under several treaties and
under rules of customary international law binding on all States”), fn. 2 (“Even though there
is no international treaty specifically addressing State responsibility for crimes against
humanity, the duty to prevent crimes against humanity derives from the obligation to
prevent those human rights violations, such as torture, that, when committed as part of a
widespread or systematic attack directed against any civilian population, would constitute
crimes against humanity.”)
33 See Sheri P. Rosenberg, “Responsibility to Protect: A Framework for Prevention”, Global
Responsibility to Protect 1 (2009), pp. 449-450.
11
prevent genocide is also codified in the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide (“Genocide Convention”).34
15. As the International Court of Justice explained in the case of Bosnia v.
Serbia,35 a State may be held responsible if it had the means and influence to
actually prevent genocide in another State but manifestly refrained from
using them.36 A State must employ all means reasonably available to it to
prevent genocide so far as possible.37 The obligation to prevent and the
corresponding duty to act arises “the instant that the State learns of, or
should normally have learned of the existence of a serious risk that genocide
will be committed.”38 The obligation to prevent does not require the State to
34 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, 9
December 1948. Article I of the Genocide Convention provides that genocide is a crime under
international law that all contracting states undertake to prevent and punish, and Article IX
provides the jurisdictional basis for bringing contracting states before the International
Court of Justice.
35 International Court of Justice, Case Concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment of 27 February 2007 (“Bosnia v. Serbia Judgment”). The Court
begins by explicitly affirming that the obligation to prevent and the obligation to punish are
related, yet, autonomous legal obligations. See Bosnia v. Serbia Judgment, para. 427.
36 Bosnia v. Serbia Judgment, paras. 430 (“Various parameters operate when assessing
whether a State has duly discharged the obligation concerned. The first, which varies greatly
from one State to another, is clearly the capacity to influence effectively the action of persons
likely to commit, or already committing, genocide. […] [I]t is irrelevant whether the State
whose responsibility is in issue claims, or even proves, that even if it had employed all means
reasonably at its disposal, they would not have sufficed to prevent the commission of
genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the
obligation of conduct in question, the more so since the possibility remains that the combined
efforts of several States, each complying with its obligation to prevent, might have achieved
the result — averting the commission of genocide — which the efforts of only one State were
insufficient to produce.”), 438 (“As indicated above, for a State to be held responsible for
breaching its obligation of prevention, it does not need to be proven that the State concerned
definitely had the power to prevent the genocide; it is sufficient that it had the means to do
so and that it manifestly refrained from using them.”)
37 Bosnia v. Serbia Judgment, para. 430 (“[I]t is clear that the obligation in question is one of
conduct and not one of result, in the sense that a State cannot be under an obligation to
succeed, whatever the circumstances, in preventing the commission of genocide: the
obligation of States parties is rather to employ all means reasonably available to them, so as
to prevent genocide so far as possible. A State does not incur responsibility simply because
the desired result is not achieved; responsibility is however incurred if the State manifestly
failed to take all measures to prevent genocide which were within its power, and which
might have contributed to preventing the genocide.”)
38 Bosnia v. Serbia Judgment, paras. 431 (“From that moment onwards, if the State has
available to it means likely to have a deterrent effect on those suspected of preparing
genocide, or reasonably suspected of harbouring special intent […], it is under a duty to make
such use of those means as the circumstances permit.”), 432 (“[A] State may be found to have
violated its obligation to prevent even though it had no certainty, at the time when it should
have acted, but failed to do so, that genocide was about to be committed or was under way;
for it to incur responsibility on this basis it is enough that the State was aware, or should
normally have been aware, of the serious danger that acts of genocide would be committed”).
12
know that genocide is occurring or is about to be perpetrated; it is sufficient
for the relevant State to be aware at a “high level of certainty” of the grave
risk of genocide.39
16. As the prevention of the crime of genocide is intrinsically connected to
the prevention of crimes against humanity and war crimes, the same legal
standards directly bear on extraterritorial state responsibility with respect to
other atrocity crimes.40 Irrespective of content-specific issues, it is clear that
one thing is never sufficient to comply with the duty to prevent atrocity
crimes whenever there exists a serious risk thereof: doing nothing. States
must always overcome the threshold of passiveness, as inaction would
contravene the object and purpose of the R2P doctrine and the general
principles of international law on which it is based. This means that, as a
minimum obligation, States must do at least something to prevent atrocity
crimes.41
III. Canada’s Implication and Duty to Act
17. Mere months before Turkey and Azerbaijan’s military campaign
against the Armenians of Artsakh, Canada allowed for exemptions to a ban
which was in place since October 2019 (as part of an arms embargo alongside
Germany, France, and the United Kingdom in response to Turkey’s
unilateral invasion of Syria) and, through a special exemption, issued permits
in the spring of 2020 for the export of the Canadian-made WESCAM weapons
technology to Turkey.42 These Canadian components would later be identified
in Artsakh in October 2020, fully embedded in the Turkish-made Bayraktar
drones.43 Canada is thus, however unwittingly, implicated in the present
39 Bosnia v. Serbia Judgment, para. 210.
40 See Sheri P. Rosenberg, “Responsibility to Protect: A Framework for Prevention”, Global
Responsibility to Protect 1 (2009), p. 461. See also UN General Assembly, “Prevention of
Genocide – Report of the Secretary-General”, A/HRC/41/24, 8 October 2019, para. 3 (“The
prevention of the crime of genocide is intrinsically connected to the prevention of crimes
against humanity and war crimes. I have been referring to these crimes as ‘atrocity crimes’
as they reveal extreme forms of human rights violations of a deeply violent and cruel nature
that typically – but not always – occur on a massive scale. These crimes also tend to occur
concurrently in the same situation rather than as isolated events, as has been demonstrated
by their prosecution in both international and national jurisdictions.”)
41 See Björn Schiffbauer, “The Duty to Prevent Genocide under International Law: Naming
and Shaming as a Measure of Prevention”, Genocide Studies and Prevention: An
International Journal, Vol. 12 Iss. 3 (2018), p. 86.
42 Kelsey Gallagher, “Killer Optics: Exports of WESCAM Sensors to Turkey – A Litmus Test
of Canada’s Compliance with the Arms Trade Treaty”, Ploughshares Special Report,
September 2020, p. 11, retrieved from https://ploughshares.ca/wpcontent/
uploads/2020/09/TurkeyWESCAMReportSept.2020.pdf.
43 Steven Chase, “Canadian-made targeting gear used in air strikes against Armenians,
evidence shows”, The Globe and Mail, 30 October 2020, retrieved from
https://www.theglobeandmail.com/politics/article-canadian-made-targeting-gear-used-in-airstrikes-
against-armenians/.
13
crisis in Armenia and Artsakh through its decision to allow the export of
arms to Turkey.
18. The circumstances surrounding Canada’s alarming issuance of these
permits in the spring of 2020 remain unexplained. Such a decision by the
Minister of Foreign Affairs is contrary to the Export and Import Permits Act
(“EIPA”),44 as well as Canada’s obligations under the Arms Trade Treaty,45 as
the Minister could not issue a permit upon determining that there is a
substantial risk that the export of the goods or technology could be used to
commit or facilitate, inter alia, a serious violation of international
humanitarian law or international human rights law, or an act constituting
an offence under international conventions or protocols relating to terrorism
to which Canada is a party.
19. As Turkey’s use of the WESCAM technology to foster instability and
commit acts contrary to international humanitarian law in Syria and Libya
were already well known and documented prior to the start of the Turkish-
Azerbaijani offensive on 27 September 2020,46 it is unlikely that the Minister
could not have determined that a “substantial risk” existed for Turkey to use,
or facilitate the use of, the technology for illicit purposes. Considering the
very nature of the technology in question and the use that was demonstrably
made of it, it is also rather evident that the Minister could not – and did not –
stipulate any effective mitigating measures to counter the risk. The Minister
thus seems, prima facie, to have acted ultra vires, bypassing one of the rare
provisions in the EIPA that limit his admittedly broad discretionary powers
on substantive, rather than procedural, grounds.47
20. From 27 September 2020 until at least 10 November 2020, Azerbaijan
used WESCAM technology in its offensive, which included carrying out
planned, targeted and deliberate attacks on civilians in densely populated
residential areas, resulting in over 2,500 casualties including the killing of at
least one Canadian citizen,48 hundreds of civilian deaths and injuries
44 See Subsections 7.3 and 7.4 of the Export and Import Permits Act (R.S.C., 1985, c. E-19).
45 See Article 7 of the United Nations Arms Trade Treaty, which entered into force on 24
December 2014, and to which Canada became a State Party on 17 September 2019.
46 See, generally, Kelsey Gallagher, “Killer Optics: Exports of WESCAM Sensors to Turkey –
A Litmus Test of Canada’s Compliance with the Arms Trade Treaty”, Ploughshares Special
Report, September 2020, retrieved from https://ploughshares.ca/wpcontent/
uploads/2020/09/TurkeyWESCAMReportSept.2020.pdf.
47 In Turp v. Minister of Foreign Affairs, 2018 FCA 133, the Federal Court of Appeal
explained the breadth of these discretionary powers. This decision, however, predates the
adoption of s. 7.4 of the EIPA, and the Court confirmed its authority to review a decision by
the Minister that “was made arbitrarily or in bad faith, cannot be supported on the evidence,
or the Minister failed to consider the appropriate factors” (see para. 61). In amending the
EIPA following its adherence to the Arms Trade Treaty, Canada incorporated an obligation
to refuse the issuance of a permit when there is a substantial risk of grave violations.
48 See Associated Press, “Armenia raises Nagorno-Karabakh conflict troop toll to 2,425”, 18
November 2020, retrieved from https://apnews.com/article/nikol-pashinian-azerbaijan14
including to children, as well as the destruction of thousands of civilian
objects and infrastructure with no military objectives whatsoever and located
nowhere near any military targets in Artsakh and Armenia.49 On 5 October
2020, the Minister announced that he had become aware of “Canadian
technology being used in the military conflict in Nagorno-Karabakh […] resulting in shelling of communities and civilian casualties”, and accordingly
“suspended the relevant export permits to Turkey”.50 However, by then the
measure had obviously come too little, too late.
21. Since then, Canada has done little more than issue statements calling
on both sides to negotiate peacefully and for Turkey to stay out of the conflict,
all of which have obviously fallen on deaf ears with three consecutive
ceasefire violations by Azerbaijan during active hostilities and Turkey’s nowapparent
participation in the implementation of the Ceasefire Statement,
which will involve the continued use of drones in Artsakh.51 It is
inappropriate for Canada to limit itself to issuing more such evidently futile
statements, which effectively amounts to doing nothing, particularly in the
context of a crisis to which Canada has contributed, and in which its duty to
protect the population of Artsakh from further atrocities under the third
pillar of R2P is unquestionably triggered. It is therefore imperative that
Canada take more robust action and implement meaningful remedial
measures to ensure accountability for Turkey and Azerbaijan’s gross
transgressions, and a fair, balanced and definitive resolution to the conflict
that preserves Artsakh’s right to self-determination, which can only be
achieved through remedial recognition of its independence.
armenia-yerevan-e05ea4d7d43e0111cd142861dec105ec; CBC Radio-Canada, “Armenian
community mourns Canadian killed in fighting in Nagorno-Karabakh”, 8 October 2020,
retrieved from https://www.cbc.ca/news/politics/nagorno-karabakh-armenia-azerbaijan-
1.5755538.
49 See supra, fn. 4, for references to all ad hoc and interim reports issued by the Human
Rights Defenders of Artsakh and Armenia, especially HRDRA, “Ad Hoc Public Report on
Azerbaijani Drones’ Targeted Attacks against Peaceful Population of Armenia and Artsakh
in Grave Breach of International Law”, October 2020, retrieved from
https://www.ombuds.am/images/files/de3634c257bb698735db318a33f280bf.pdf. See also
infra, Section IV(B)(ii): Azerbaijan commits atrocious crimes against Armenians, for more
details on the extent of the war crimes and other atrocities committed against the population
of Artsakh.
50 Global Affairs Canada, “Statement from Minister Champagne on suspension of export
permits to Turkey”, 5 October 2020, retrieved from https://www.canada.ca/en/globalaffairs/
news/2020/10/statement-from-minister-champagne-on-suspension-of-export-permitsto-
turkey.html.
51 President of Russia, “Replies to media questions on developments in Nagorno-Karabakh“,
17 November 2020, retrieved from http://en.kremlin.ru/events/president/news/64431 (“we
have agreed [with Turkey] to set up a joint centre, which will make use of unmanned aerial
vehicles, drones, to jointly monitor the situation along the contact line”).
15
IV. Remedial Secession/Recognition of Artsakh
22. Although Canada has openly condemned the violence in Artsakh and
temporarily suspended the sale of weapons technology to Turkey, these
actions were entirely insufficient to prevent the beheadings, use of
mercenaries, executions, mutilations, destruction of cultural and religious
property, and attacks against civilians in Artsakh, as well as the risks of
ethnic cleansing and continued atrocities against the Armenians of Artsakh.
23. The third pillar of R2P elaborates the full range of options for timely
and decisive response. Non-military tools designed to prevent the escalation
of atrocity crimes include mediation, monitoring and observer missions, factfinding
missions and commissions of inquiry and public advocacy by
international officials. Acting under Chapter VII of the UN Charter, the
international community has also employed more robust tools, including
sanctions designed to discourage the targeting of civilians, the establishment
of peacekeeping missions and the authorization of military action with the
express purpose of protecting civilians.52
24. However, every situation is different and calls for case-specific action.
In the case of Artsakh, the tool of remedial secession/recognition is
imperative in light of the fundamental right of the people of Artsakh to selfdetermination
after a long history of being subjected to systemic
discrimination and oppression, and in light of the current significant risk of
ethnic cleansing.
25. In this respect, the above-mentioned group of 80 eminent genocide
scholars have declared that “history, from the Armenian genocide to the last
three decades of conflict, as well as current political statements, economic
policies, sentiments of the societies and military actions by the Azerbaijani
and Turkish leadership should warn us that genocide of the Armenians in
Nagorno-Karabakh, and perhaps even Armenia, is a very real possibility. All
of this proves that Armenians can face slaughter if any Armenian territory is
occupied, consequently recognizing the independence of the Republic of
Artsakh is the way to save Armenians of Artsakh from extermination now or
in the near future.”53 Russian President Vladimir Putin also recently stated
52 See especially UN General Assembly, “Responsibility to protect: timely and decisive
response – Report of the Secretary-General”, A/66/874, 25 July 2012. See also United Nations
Office on Genocide Prevention and the Responsibility to Protect, “Compendium of Practice:
Implementation of the Responsibility to Protect, 2005-2016”, retrieved from
www.un.org/en/genocideprevention/documents/RtoP%20Compendium%20of%20Practice%20(
Provisional%20Pre-Publication%20Version)%20FINAL%2020%20March%202017.pdf.
53 See Open letter by members of the International Association of Genocide Scholars (IAGS),
22 October 2020, retrieved from https://www.voltairenet.org/article211404.html
16
that the failure to recognize Artsakh has been a significant factor in the
current crisis.54
26. The term “remedial recognition” is used throughout this Paper as it is
the position herein, for reasons that are demonstrated below, that Artsakh
has always been independent of Azerbaijan (Section A), and that, in any
event, Artsakh’s remedial secession/recognition of independence from
Azerbaijan is fully warranted (Section B). Delegations from France, Belgium
and Germany55 have already visited Artsakh to investigate and report back
on the situation and are calling for their countries to recognize Artsakh’s
statehood.56 In fact, a number of cities57 and provinces58 have already
recognized the independence of Artsakh. It is only a matter of time before UN
member states begin to follow suit. Canada, as a pioneer in the development
54 President of Russia, “Replies to media questions on developments in Nagorno-Karabakh”,
17 November 2020, retrieved from http://en.kremlin.ru/events/president/news/64431.
55 The Belgian Parliamentary delegation included Els Van Hoof, Georges Dallemagne, David
Clarinval, Paul Delva, Zoé Genot and Serge de Patoul. Fifteen Members of Parliament from
France visited Artsakh to gain knowledge of Azerbaijan’s aggression. See Asbarez, “Artsakh’s
Foreign Minister Meets with French Lawmakers”, 26 October 2020, retrieved from
https://asbarez.com/197985/artsakhs-foreign-minister-meets-with-french-lawmakers/.
Germany’s Bundestag members from the “Alternative Germany Party” held a press
conference in Stepanakert on 18 October 2020. See Asbarez, “In Artsakh, German
Lawmakers Call for Sanctions Against Ankara and Baku”, 19 October 2020, retrieved from
https://asbarez.com/197729/in-artsakh-german-lawmakers-call-for-sanctions-against-ankaraand-
baku/.
56 See, e.g., Resolution No. 3436 “on the recognition of the Republic of Artsakh” submitted to
the French National Assembly, 16 October 2020, retrieved from http://www.assembleenationale.
fr/dyn/15/textes/l15b3436_proposition-resolution#tocUniqueId0; Resolution No. 145
“on the necessity of recognizing the Republic of Nagorno-Karabakh” submitted to the French
Senate on 18 November 2020, retrieved from https://www.senat.fr/leg/ppr20-145.html, and
adopted by the French Senate on 25 November 2020, retrieved from
https://www.senat.fr/espace_presse/actualites/201011/necessite_de_reconnaitre_la_republiqu
e_du_haut_karabagh.html. See also Resolution adopted by Dutch Parliament calling on the
European Union to impose sanctions on President Aliyev for war crimes committed in
Artsakh, 17 November 2020, retrieved from https://www.europanu.
nl/id/vlduoz1zjrzu/nieuws/kamer_wil_sancties_tegen_president.
57 Laval (Canada); Fowler, Fort Lee, Fresno, Glendale, Highland, Los Angeles, Clark County,
Englewood Cliffs, Denver (United States); Geneva (Switzerland); Alfortville, Vienne (calling
on French government to recognize Artsakh), Limonest (France); Milan, Palermo, Asolo,
Cerchiara di Calabria, Aprilia (Italy); Amposta, Berga (Spain); Montevideo (Uruguay);
Willoughby (Australia); Derby (United Kingdom); Sayaxché (Guatemala). On 17 November
2020, the mayors of 15 French municipalities issued a declaration recognizing the
independence of Artsakh and urging France and the international community to follow suit.
See France Bleu, “Valence : le maire lance un appel pour la reconnaissance internationale de
la République du Haut-Karabagh”, 14 November 2020, retrieved from
https://www.francebleu.fr/infos/politique/valence-le-maire-lance-un-appel-pour-lareconnaissance-
internationale-de-la-republique-du-haut-1605374366.
58 New South Wales (Australia); Massachusetts, Rhode Island, Maine, Louisiana, California,
Georgia, Minnesota, Colorado, Hawaii, Michigan (United States); Catalonia (Spain);
Lombardy (Italy).
17
of the law on unilateral secession and right to self-determination, and as an
instrumental actor in the championing of R2P, has the opportunity to take a
leadership role in this respect by officially recognizing Artsakh, and thereby
upholding fundamental principles of international law.
A. Artsakh has always been independent of Azerbaijan
i. The League of Nations never recognized Azerbaijan
27. The international borders between Armenia, Artsakh and Azerbaijan
were not established under international law at the beginning of the 20th
Century.59 On 22 August 1919, Artsakh and Azerbaijan signed an agreement
stipulating that their boundaries would be settled at the 1919 Paris Peace
Conference.60 At the Paris Peace Conference, the Commission “on the
boundaries of a new independent State of Armenia” considered it advisable to
await the results of an agreement between Armenia, Georgia and Azerbaijan,
failing which the League of Nations would appoint an inter-allied
Commission to arbitrate the dispute and determine borders based on “the
principle of ethnographic data”.61
28. At the time, Artsakh’s population comprised over 90% Armenians and
was self-governed.62 The Congress of Artsakh Armenians had elected their
own government (the National Council and Peoples government) and
59 In February 1918, the Georgian, Armenian, and Azerbaijani authorities founded the
“Transcaucasian Democratic Federative Republic”, which was quickly dissolved in May 1918
when Georgia, Azerbaijan and Armenia each declared their respective independences. See
Arman Sarvarian, “The Artsakh Question: An Analysis of Territorial Dispute Resolution in
International Law” (2008) Melb J Int Law 9(1) (“Savarian”), p. 193; Armen Tamzarian,
“Nagorno-Karabakh’s Right to Political Independence under International Law: An
Application of the Principle of Self-Determination” (1994) 50 SUL Rev 183 (“Tamzarian”), p.
187; Arsène Saparov, “Why Autonomy? The Making of Nagorno-Karabakh Autonomous
Region 1918-1925” (2012) 64:2 Eur Asia Studies 281 (“Saparov”), p. 286-287.
60 Richard G. Hovanissian, Provisional Accord between the VII Armenian Council of
Karabakh with the Government of Azerbaijan, Vol. 1., 1918-1919, (Berkeley, University of
California Press, The Republic of Armenia, 1971), p. 186.
61 Ara Papian, Hayrenatirutyun. Reclaiming the Homeland, Legal Bases for the Armenian
Claims and Related Issues, (Yerevan, 2014) pp. 260-261 quoting Documents on British
Foreign Policy, Document #34, expressing the joint view of Britain, France, Italy and Japan:
“As regards the boundary between the State of Armenia and Georgia and Azerbaijan, the
Commission considers that, it is advisable for the present to await the results of the
agreement, provided for in the treaties existing between the three Republics, in regard to the
delimitation of their respective frontiers by the States themselves. In the event of these
Republics not arriving at an agreement respecting their frontiers, resort must be had to
arbitration by the League of Nations, which would appoint an interallied Commission to
settle on the spot the frontiers referred to above, taking into account, in principle,
ethnographical data.” See also Article 92 of the 1920 Treaty of Sèvres.
62 Thomas De Waal, Black Garden: Armenia and Azerbaijan Through Peace and War, (New
York, New York University Press, 2013) (“De Waal”), p. 140.
18
proclaimed their independence in a series of Congress meetings between July
1918 and April 1920.63
29. On 1 December 1920, the League of Nations rejected Azerbaijan’s
request for statehood, finding that, given the border disputes, it was
impossible to determine the exact limits of the territory in which Azerbaijan
exercised authority.64 The border issue was still unresolved when the Soviet
Union established its reign over the region.
ii. The USSR illegally annexed Artsakh to the Azerbaijan SSR
30. On 30 November 1920, the Azerbaijan Soviet Socialist Republic
(“SSR”) recognized Nagorno-Karabakh, Zanghezour and Nakhichevan as
integral parts of the Armenian SSR.65 Artsakh was nevertheless forcibly
annexed to the Azerbaijan SSR in July 1921 under Stalin’s direct pressure.66
Such annexation was illegal even under Soviet law.67 Two years later, the
Union of Soviet Socialist Republics (“USSR”) re-administered Artsakh as the
Nagorno-Karabakh Autonomous Oblast (“NKAO”), giving it wide autonomy.68
The population of Nagorno-Karabakh (94% Armenian) was denied “even the
most minimal possibility of participation” in this decision-making process.69
Artsakh’s repeated requests for the USSR to reconsider its internal
63 See Saparov, p. 293 and G. A. Hovhannisian, Sovetakan ishkhanutian hastatume Lernayin
Gharabaghum (Erevan, Izdatel’stvo Erevansgogo Universiteta, 1971), p. 167.
64 League of Nations: Journal N17 of the First Assembly, Geneva 1920, p. 139.
65See, e.g., Shahen Avakian, Nagorno Karabakh: Legal Aspects, 5th ed. (Moscow: MIA
Publishers, 2015), p. 13, referring to The Declaration of the Revolutionary Committee of the
Azerbaijan SSR on Recognition of Nagorno Karabagh, Zanghezour and Nakhichevan as an
Integral Part of the Armenian SSR, 30 November 1920, published in Newspaper
“Communist”, 7 December 1920, Yerevan.
66 Otto Luchterhandt, Nagorny Karabakh’s Right to State Independence According to
International Law, (Boston, Baikar Association Inc., 1993) (“Luchterhandt”), p. 32.
67 See Haig E. Asenbauer, On the Right of Self-Determination of the Armenian People of
Nagorno-Karabakh, (Wilhelm Braumuller, Unversitats-Verlagsbuchhandlung, 1993, English
translation: New York. Armenian Prelacy, 1996) (“Asenbauer”), pp. 120 and 123 (“the USSR
was a member of the United Nations and had ratified the two U.N. Human Rights
Conventions (ratifications which applied to all Union republics- article 14 (a) of the 1936
Constitution). This forced annexation also went against the USSR’s own norms “Decree on
Peace” from October 26, 1917 in which it had declared: “If any nation whatsoever is forcibly
retained within the borders of a given state, if, in spite of its expressed desire — no matter
whether expressed in the press, at public meetings, in the decisions of parties, or in protests
and uprisings against national oppression — is not accorded the right to decide the forms of
its state existence by a free vote, taken after the complete evacuation of the [aggressive] troops of the incorporating or, generally, of the stronger nation and without the least
pressure being brought to bear, such incorporation is annexation, i.e., seizure and violence.”)
68 Saparov, p. 321; Tamzarian, p. 188-189. The NKAO was divided into five administrative
divisions – Mardakert District, Martuni District, Shusha District, Askeran District and
Hadrut District – and shared no borders with the Armenian SSR.
69 Luchterhandt, p. 35.
19
jurisdictional divisions for unification with the Armenian SSR fell on deaf
ears.70
31. USSR authorities would eventually admit, in 1977, that Artsakh had
been artificially annexed to the Azerbaijan SSR, without taking into
consideration, notably, the “will of its people”.71 On 20 February 1988, the
NKAO once again passed a resolution requesting a transfer to the Armenian
SSR’s jurisdiction.72 One week later, mobs of ethnic Azerbaijanis formed into
groups and attacked and killed Armenians for three days in the Azerbaijan
SSR town of Sumgait, in the streets and in their apartments (“Sumgait
Pogrom”).73 Intellectuals and political leaders who called for the unification of
Artsakh to the Armenian SSR were imprisoned or assassinated.74 On 15 June
1988, the Supreme Soviet of the Armenian SSR voted unanimously for
unification with the NKAO; two days later the Supreme Soviet of the
Azerbaijan SSR, equally unanimously, rejected the decision.75
32. On 7 July 1988, the European Parliament condemned the Sumgait
Pogrom as well as anti-Armenian violence in Baku, recognized the arbitrary
inclusion of the NKAO within the Azerbaijan SSR, and supported the
demand of the Armenians of Nagorno-Karabakh for reunification with the
Armenian SSR.76 On 12 July 1988, the NKAO passed a resolution to
70 V.A. Ponomarev “On the genocide of the Armenian people in Turkey and Transcaucasia in
XIX-XX centuries”, General scientific periodical “Tomsk State University Reporter” No 320
March 2009, p. 120.
71 See Avakian, p. 67, referring to Session of the Presidium of the USSR Council of Ministers
(“As a result of a number of historic circumstances, Nagorno Karabakh was artificially
annexed to Azerbaijan several decades ago. In this process, the historic past of the oblast
[region], its ethnic composition, the will of its people and economic interests were not taken
into consideration […] Nagorno Karabakh (Armenian name Artsakh) should be made part of
the Armenian Soviet Socialist Republic. In this case everything will take its legal place.”)
72 On 20 February 1988, the extraordinary session of the Council of People’s Deputies 20th
convocation of NKAO passed a decision to appeal to the Supreme Councils of the Azerbaijan
SSR and the Armenian SSR to “demonstrate a sense of deep understanding of the
aspirations of the Armenian population of Nagorno Karabakh and resolve the question of
transferring NKAO from the Azerbaijan SSR to the Armenian SSR, at the same time to
intercede with the Supreme Council of the USSR to reach a positive resolution on the issue of
transferring the region from the Azerbaijan SSR to the Armenian SSR.” See
http://www.nkr.am/en/karabakh-national-liberation-movement.
73 See infra Section IV(B)(ii)(a): History of persecution and pogroms.
74 “Eyewitness account of events in Mountainous Karabagh 1924-1936” in Gerard J.
Libaridian (ed.), The Karabagh File: Documents and Facts on the Region of Mountainous
Karabagh, 1918-1988, (Cambridge, MA: The Zoryan Institute, 1988) (“The Karabagh File”),
p. 41.
75 Cornell, Svante E. “Turkey and the Conflict in Nagorno Karabakh: A Delicate Balance.”
Middle Eastern Studies, vol. 34, no. 1, 1998, pp. 51–72.
76 See Resolution 4(d) of 7 July 1988 on the situation in Soviet Armenia, European
Parliament, published in the Official Journal of the European Communities, C234, Volume
31, 12 September 1988, p. 106 (“The European Parliament, […] having regard to the historic
status of the autonomous region of Nagorno-Karabakh (80% of whose present population is
20
withdraw from the Azerbaijan SSR and to become an independent republic
named “the Artsakh Armenian Autonomous Region”.77
33. In an attempt to right a historic wrong, in January 1989 the USSR
placed the NKAO under a special administration committee directly
accountable to the supreme state organs of the USSR; this committee
however, was dissolved later that year, leaving Artsakh with no political
representation.78 On 11 August 1989, Artsakh formed the “Congress of the
Authorized Representatives of the Population of the Autonomous Territory of
Nagorno-Karabakh” and elected a national council with authority over
Nagorno-Karabakh.79
iii. Artsakh legally seceded from the USSR
34. At the collapse of the Soviet Union, Artsakh legally seceded from the
USSR in conformity with the USSR’s law and procedure promulgated in 1990
governing the secession of one of its constituent parts (“USSR Law on
Secession”), according to which an autonomous region, such as the NKAO,
could secede from the USSR or from a Union Republic by referendum.80
Although the USSR Constitution already provided a right of secession to
Union Republics,81 the USSR Law on Secession extended the right to
autonomous republics and autonomous regions. The USSR constitution also
enshrined the right of a nation to self-determination.82
35. However, considering that the USSR Law on Secession was only
promulgated in 1990, it was virtually impossible to apply the mechanisms
provided for into strict practice given the USSR’s rapid dissolution as a
whole. Union Republics accordingly proclaimed their unilateral independence
one after another in the days and weeks following the failed August 1991
coup d’état in Moscow.83 Artsakh followed the same approach used by other
Armenian) as part of Armenia, to the arbitrary inclusion of this area within Azerbaijan in
1923 and to the massacre of Armenians in the Azerbaijani town of Sumgait in February
1988, […] [s]upports the demand of the Armenian minority for reunification with the
Socialist Republic of Armenia.”), retrieved from https://eur-lex.europa.eu/legalcontent/
EN/TXT/PDF/?uri=OJ:JOC_1988_235_R_0080_01&from=EN.
77 De Waal, p. 61.
78 Luchterhandt, p. 26.
79 Luchterhandt, p. 27.
80 See Articles 3 and 6-9 of the Law on Procedure for Resolving Questions Connected with a
Union Republic’s Secession from the USSR. 3 April 1990, retrieved from
http://soviethistory.msu.edu/1991-2/shevarnadze-resigns/shevarnadze-resigns-texts/law-onsecession-
from-the-ussr/.
81 See Articles 72 and 78 of the Constitution of the USSR of 1977 (“USSR Constitution”),
retrieved from http://www.departments.bucknell.edu/russian/const/77cons03.html. ,
82 See Articles 29 and 70 of the USSR Constitution. See also Asenbauer, p. 125, according to
whom the right to self-determination even had “priority over the claim of a state to territorial
integrity”.
83 The USSR officially dissolved on 26 December 1991.
21
seceding Union Republics: declaring independence and then conducting a
referendum to determine the population’s will to secede.84
36. On 2 September 1991, the NKAO proclaimed its independence from
the USSR and on 10 December 1991, 82.2% of the total number of the
registered voters took part in a referendum, 99.89% of whom voted “yes” to
the question: “Do you agree that the proclaimed Nagorno Karabakh republic
be an independent state acting on its own authority to decide forms of cooperation
with other states and communities?”85 The referendum was
monitored by over 20 external observers including deputies from the USSR,
the Russian Soviet Federative Socialist Republic, the city council of Moscow
as well as human rights advocates, all of whom reported that the vote was
conducted without any procedural violations and represented the free will of
the voters.86
37. Azerbaijan similarly declared its independence on 30 August 1991, and
then held its referendum on 29 December 1991, nineteen days after
Artsakh.87 The European Parliament has since recognized that Artsakh
“declared its independence following similar declarations by former Soviet
Socialist Republics after the collapse of the USSR in September 1991”.88
Accordingly, the secession of Artsakh from the USSR and the Azerbaijan SSR
was implemented before Azerbaijan obtained its own independence. As such,
when the independent Republic of Azerbaijan was pronounced, Artsakh was
no longer a part of it.
84 All Soviet republics seceded without following the specific procedure set out in the USSR
Law on Secession. See Alexander Salenko, “Legal Aspects of the Dissolution of the Soviet
Union in 1991 and Its Implications for the Reunification of Crimea with Russia in 2014”,
ZaöRV 75 (2015), p. 156.
85 See Act on Referendum Conducted in the Nagorno-Karabakh Republic on December 10,
1991, retrieved from http://www.nkrusa.org/nk_conflict/declaration_independence.shtml;
Ministry of Foreign Affairs, Republic of Artsakh, “The Referendum on Independence of the
Nagorno Karabakh Republic”, retrieved from http://www.nkr.am/en/independencereferendum-
in-karabakh. The referendum question was consistent with a question that
would be considered “clear” under section 1 of An Act to give effect to the requirement for
clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession
Reference, S.C. 2000 c.26. See also Luchterhandt, p. 28 (“in this manner the Armenians of
Nagorno-Karabakh have expressed their will for self-determination in a form and a
procedure, namely that of a referendum, which international law usually requires today for
the effective exercise of the right of self-determination”).
86 See Yuri Barsegov (ed.), Nagornyi Karabakh in International Law and World Politics,
Documents and Commentary, Vol. 1, (Moscow, Krug Publishers, 2008, Doc. no 749, p. 713.
87 Savarian, p. 197; Tamzarian, p. 5; RadioFreeEurope/RadioLiberty, “Azerbaijan Marks 20th
Anniversary Of Independence”, 18 October 2011, retrieved from
https://www.rferl.org/a/azerbaijan_marks_20th_anniversary_of_independence/24363665.html
88 European Parliament “Resolution on support for the peace process in the Caucasus”,
Official Journal, C.175, 21 June 1999, p. 0251, retrieved from
https://op.europa.eu/en/publication-detail/-/publication/1c8edb49-c670-426d-bc4f-
267f0d5509a4.
22
38. Azerbaijan’s own declaration of independence and constitution, as well
as its application for membership to the United Nations,89 stated that it had
been illegally annexed into the USSR, and that it revoked the existence of the
Azerbaijan SSR, viewing itself as a continuation of the pre-Soviet Azerbaijan
state.90 Yet, as noted above, during the pre-Soviet period, Artsakh never
formed part of Azerbaijan, and the latter’s application for membership to the
League of Nations was rejected primarily on the ground that the borders of
Azerbaijan were not precisely determinable.91 Therefore, by declaring the
newly-established Azerbaijan Republic as the successor of the 1918-1920
Azerbaijan Republic, any claim toward Nagorno-Karabakh was consequently
relinquished.
iv. Artsakh is an independent State under international law
39. The objective criteria that must be fulfilled in order for an entity to be
recognized as a State are formulated in the 1933 Montevideo Convention on
the Rights and Duties of States (“Montevideo Convention”), Article 1 of which
sets out that the State as a person of international law should possess the
following qualifications: (a) a permanent population; (b) a defined territory;
(c) government; and (d) capacity to enter into relations with the other states.
These four criteria are the ones most commonly referred to when addressing
the question of what constitutes a State. The Montevideo Convention is today
considered part of customary international law, and is the major foundation
for the declaratory theory concerning the effect of State recognition.
40. Artsakh fulfills all four criteria as follows:
(a) First, Artsakh has a permanent population of 150,000 people, 95% of
whom are Armenian.92 The indigenous Armenian group’s presence in
Nagorno-Karabakh dates back over two millennia.93 The population shares a
common language (Armenian), religion (Orthodox Christian) and culture. The
region is host to ancient Armenian ruins, and hundreds of Armenian
89 Application of the Republic of Azerbaijan for admission to membership in the United
Nations (February 7, 1992), Annex II: “Proclaiming in accordance with the will of the
Azerbaijan people the restoration of the independence, which had been liquidated in April
1920”.
90 On 18 October 1991, Azerbaijan adopted the Constitutional Act “On recovery of the state
independence of the Azerbaijan Republic.” This Constitutional Act, which today forms a part
of the constitutional framework of Azerbaijan, considered the establishment of Soviet power
in Azerbaijan as “annexation by Soviet Russia”, which “overthrew Azerbaijan’s legal
government.” In so doing, the Republic of Azerbaijan declared the establishment of Soviet
power in Baku illegal, and rejected the whole Soviet political and legal heritage. As a result,
the Azerbaijan effectively nullified the above-mentioned July 1921 decision to forcibly and
illegally annex Artsakh to the Azerbaijan SSR, thus revoking its sole claim, however thin, to
Nagorno Karabakh. This Constitutional Act also provided that Azerbaijan is the successor of
the Azerbaijan Republic which existed from 28 May 1918 until 28 April 1920.
91 See supra Section IV(A)(i): The League of Nations never recognized Azerbaijan.
23
churches and cemeteries, carrying countless famous Armenian cross-stones
(“Khachkars” in Armenian), classified by UNESCO as a part of the Intangible
Cultural Heritage of Humanity.94
(b) Second, the territory of Artsakh is defined in its proclamation of
independence on 2 September 1991, namely that the Republic of Nagorno-
Karabakh is within the boundaries of the NKAO region and the adjacent
Shahumian district.95
(c) Third, Artsakh has its own government, which holds elections under a
democratic constitutional framework. The government is composed of a
National Assembly made up of 33 members,96 and a judiciary (its Supreme
Court is composed of a chairperson and six female judges).97 The government
is currently led by the head of state, President Arayik Harutyunyan.98
(d) Fourth, Artsakh has full capacity to enter into relations with other
States, through its Council of Ministers, particularly the Minister of Foreign
Affairs, whose responsibilities include diplomatic relations.99 However, until
other States recognize the independence of Artsakh, it is prevented from
entering into formal diplomatic relations with them, despite being otherwise
willing and capable of doing so. Artsakh has nevertheless established
representative offices in Armenia, France, Germany, Russia, Australia,
Lebanon (accredited to all Middle Eastern countries) and the United States
92 De Waal, p. 140.
93 Tamzarian, p. 185.
94 See United Nations Educational, Scientific and Cultural Organization, “Armenian crossstones
art – Symbolism and craftsmanship of Khachkars, Inscribed in 2010 (5.COM) on the
Representative List of the Intangible Cultural Heritage of Humanity”, retrieved from
https://ich.unesco.org/en/RL/armenian-cross-stones-art-symbolism-and-craftsmanship-ofkhachkars-
00434.
95 See the Proclamation of the Nagorno Karabakh Republic at
http://www.nkrusa.org/nk_conflict/declaration_independence.shtml. See also map in Annex.
96 See National Assembly of the Republic of Artsakh (Nagorno-Karabakh) at
http://www.nankr.am/en.
97 See Government of the Republic of Artsakh Republic at http://gov.nkr.am/en/.
98 Artsakh previously operated under a semi-presidential system, with the establishment in
1992 of the position of Prime Minister, appointed by the head of state—the President. In a
constitutional referendum held in 2017, citizens voted in favour of transforming Artsakh into
a presidential system and the office of Prime Minister was abolished. The President
accordingly became both the head of state and the head of government.
99 See Ministry of Foreign Affairs of the Republic of Artsakh at http://www.nkr.am/.
24
(also accredited to Canada),100 as well as a number of friendship groups and
circles around the world, including with Canada.101
41. It is important to note that the Montevideo Convention does not list
recognition by other States as one of the criteria for statehood. In fact, Article
3 of the Montevideo Convention confirms that “[t]he political existence of the
state is independent of recognition by the other states. Even before
recognition the state has the right to defend its integrity and independence,
to provide for its conservation and prosperity, and consequently to organize
itself as it sees fit, to legislate upon its interests, administer its services, and
to define the jurisdiction and competence of its courts.” The exercise of these
rights has no other limitation than the exercise of the rights of other states
according to international law. Thus, the Montevideo Convention rests on the
supposition that statehood is an objective concept and above all a question of
fact, independent of the consent by other States.102
42. As such, the fact that other States have not yet officially recognized the
independence of Artsakh does not in any way detract from the legality and
objectivity of its existence and independent status. Nevertheless, the
recognition of Artsakh by other States would allow it to consolidate its
100 See Ministry of Foreign Affairs of the Republic of Artsakh, “Permanent Representations”,
at http://www.nkr.am/karabakh-permanent-representations and Office of the Nagorno
Karabakh Republic, “Representations of the Nagorno Karabakh Republic”, at
http://www.nkrusa.org/foreign_policy/representations.shtml.
101 The following friendship groups and circles have been formed: “Artsakh Republic –
European Parliament” friendship group; “Artsakh Republic – Flemish Parliament of the
Kingdom of Belgium” friendship group; “Artsakh – Canada” friendship group; “Artsakh
Republic – Lithuania Republic” friendship group; “Artsakh – France” friendship circle;
“Artsakh Republic – French-speaking legislators, representatives of scientific and public
spheres of Belgium” friendship circle; “Artsakh – Australia” friendship circle; “Artsakh –
Cyprus” friendship circle; Interparliamentary Commission on Cooperation between the
Republic of Artsakh National Assembly and the National Assembly of the Republic of
Armenia. See National Assembly of the Republic of Artsakh (Nagorno-Karabakh), “About
Parliament”, at http://www.nankr.am/en/32. See also National Assembly of the Republic of
Artsakh (Nagorno-Karabakh), “Statement On the Creation of the Friendship Group
‘Artsakh-Canada’”, 27 March 2019, at http://www.nankr.am/en/3198.
102 “The emergence of a new State is fundamentally a question of fact because it is above all a
matter of establishing the existence of a human community grouped on a specific territory,
endowed with a stable political organization, capable of ensuring order within its borders and
preserving its political independence vis-à-vis other foreign governments. This is therefore
an objective and observable fact that no legal principle can deny and that no discourse can
prevent: the State first arises in fact before offering that others recognize its existence and,
as such, its birth relates to history and political sociology. In this area, facts take precedence
over law since the phenomenon of the accession of peoples to independence and state
sovereignty sometimes finds its basis and legitimacy even outside established law”.
[Translated] J.-Maurice Arbour and Geneviève Parent, Droit international public, 7th ed.,
Cowansville, Yvon Blais, 2017 (“Arbour and Parent”), pp. 307-308.
25
political existence.103 For instance, Canada’s recognition of the Republic of
Artsakh would give the Republic of Armenia, and other states, the backing
they need to be able to follow suit.104 Such recognition has also now become
necessary as a result of, and only viable remedial solution to, renewed and
persistent Azerbaijani and Turkish atrocities, including the imminent threat
of genocide, against Artsakh’s indigenous Armenian population.
B. Artsakh’s remedial secession/recognition is warranted
i. Azerbaijan’s claims to Artsakh are not valid
a. Azerbaijan can no longer invoke territorial integrity
43. Azerbaijan regularly invokes the principle of uti possidetis juris and,
by extension, territorial integrity, as grounds for claiming the illegality of the
independence of Artsakh. However, the principle of territorial integrity of
States does not contain an implicit prohibition on secession, and there is no
prohibition on secession in international law.105 The territorial integrity of a
State is not absolute, and is limited by self-determination of its peoples if the
State does not conduct itself in compliance with the latter.
44. A people’s right to self-determination is a general principle of
international law enshrined in a number of fundamental international
instruments, including, inter alia, the UN Charter, the International
103 Arbour and Parent, pp. 296-304. For example, the legitimacy of Palestine is recognized by
most states but it does not have de facto control over all its territory. We also note that,
according to the Constitutive theorists, recognition is an additional criterion to the formation
of the state which allows it to have an international legal personality. According to the
declarative theory, recognition is not necessary for a state to have legal existence. According
to Arbour and Parent the latter theory better accounts for the phenomenon of the appearance
of new states and previously unrecognized states, such as East Germany for example. See
Arbour and Parent, p. 313.
104 The Republic of Armenia has not yet recognized the independence of Artsakh in hopes of
resolving this problem through negotiations and peace talks, which have unfortunately not
led to any sustainable solutions. The recognition of an independent Artsakh from the
Republic of Armenia would have meant a refusal to negotiate around the issue, which was
not in line with the government’s policy. See Tass Russian News Agency, “Armenia will
recognize Karabakh if it is clear that Azerbaijan dodges dialogue – president”, 18 October
2020, retrieved from https://tass.com/world/1213533.
105 The International Court of Justice has confirmed that State practice during the
eighteenth, nineteenth and early twentieth centuries “points clearly to the conclusion that
international law contained no prohibition of declarations of independence”. In particular,
the Court concluded that “the scope of the principle of territorial integrity is confined to the
sphere of relations between States”. It also determined that no general prohibition of
declarations of independence could be deduced from Security Council resolutions condemning
other declarations of independence, because those declarations of independence had been
made in the context of an unlawful use of force or a violation of a jus cogens norm. See
Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo, Advisory Opinion of 22 July 2010 (“Kosovo Advisory Opinion”), paras. 79-81.
26
Covenant on Civil and Political Rights, and the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among
States.106 The International Court of Justice has recognized the erga omnes
character of the right to self-determination, which it qualified as “one of the
essential principles of contemporary international law”.107 The Supreme
Court of Canada has also recognized that “the existence of the right of a
people to self-determination is now so widely recognized in international
conventions that the principle has acquired a status beyond ‘convention’ and
is considered a general principle of international law”.108
45. The possession of a State, or sovereignty, is not a human right, but
rather – as articulated by the R2P doctrine – is dependent on respect for
human rights. As the UN Human Rights Committee has indicated, selfgovernment
of a people is an “essential condition” for the exercise and
observance of other rights.109 The breakdown of State legitimacy occurs at the
point where it fails to protect and promote the rights of its inhabitants. As
such, territorial integrity is not assured where States do not comply with the
principles of equal rights and self-determination. When a country violates a
peoples’ right to self-determination or freedom from systemic abuses and
discrimination, the latter may have recourse to secession from that State.
46. The jurisprudence of the International Court of Justice indicates that
the international community has taken the steps to endorse secession when a
State commits atrocity crimes against a territorially concentrated
minority.110 In particular, Judges in the Kosovo case affirmed the principal
106 Charter of the United Nations (Can T.S. 1945 No 7), Article 1, par. 2 and article 55;
International Covenant on Civil and Political Rights (999 U.N.T.S., 171), article 1;
International Covenant on Economic, Social and Cultural Rights, article 1 (993 U.N.T.S., 3);
Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United Nations,
A/RES/2625(XXV), 24 October 1970, (“Declaration on Friendly Relations”); Vienna
Declaration and Program of Action, A/CONF.157/24, 25 June 1993 (“Vienna Declaration”);
Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, A/RES/50/6, 9
November 1995, (“Declaration on the Fiftieth”); Final Act of the Conference on Security and
Co-operation in Europe, part 8 and art. IV (14 I.L.M. 1292) (1975); European Community
Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in
the Soviet Union (31 I.L.M. 1486) (1992) (Brussels, December 16, 1991).
107 See Case Concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995 (“East
Timor Judgment”), para. 29. See also Kosovo Advisory Opinion, para. 80 (recognizing that
the principle of self-determination, as expressed in the Declaration on Friendly Relations,
reflects customary international law).
108 Reference re Secession of Quebec, [1998] 2 SCR 217, para. 114.
109 UN Human Rights Committee General Comment No. 12: Article 1 (Right to Selfdetermination)
The Right to Self-determination of Peoples, para. 1.
110 See Legal Consequences for States of the Continued Presence of South Africa in Namibia,
Advisory Opinion of 21 June 1971 (treating self-determination as an enforceable, tangible
right, setting the stage for understanding self-determination as a way of giving selfgovernance
to people violently denied it); Western Sahara, Advisory Opinion of 16 October
1975 (indicating that there is a strong legal claim for the principle of self-determination as
27
that remedial secession is justified in cases where a group is subjected to
systemic discrimination, repression and crimes against humanity.111
Moreover, written and oral statements of States participating in the Kosovo
case proceedings reflect opinio juris towards the external right to selfdetermination
in cases where the parent state has engaged in severe, longlasting
refusal of internal self-determination and/or systemic, severe, and
massive human rights violations.112
functionalized in the free and genuine expression of the will of the peoples of a territory);
Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment of 22
December 1986 (defining peoples entitled to self-determination as those who possess a
reasonably defined area of land and implying that a self-determining people have an
intrinsic right to govern their heritage land); East Timor Judgment (reaffirming that the
right to territorially based self-determination is a right erga omnes); Kosovo Advisory
Opinion (confirming that declarations of independence are not, per se, contrary to
international law).
111 See especially Kosovo Advisory Opinion, Separate Opinion of Judge Yusuf, para. 11
(“[I]nternational law [does not turn] a blind eye to the plight of such groups, particularly in
those cases where the State not only denies them the exercise of their internal right of selfdetermination
(as described earlier) but also subjects them to discrimination, persecution,
and egregious violations of human rights or humanitarian law. Under such exceptional
circumstances, the right of peoples to self-determination may support a claim to separate
statehood provided it meets the conditions prescribed by international law”) and Separate
Opinion of Judge Trindade, paras. 175 (“The principle of self-determination has survived
decolonization, only to face nowadays new and violent manifestations of systematic
oppression of peoples. […] The fact remains that people cannot be targeted for atrocities,
cannot live under systematic oppression. The principle of self-determination applies in new
situations of systematic oppression, subjugation and tyranny”), 176 (“No State can invoke
territorial integrity in order to commit atrocities (such as the practices of torture, and ethnic
cleansing, and massive forced displacement of the population), nor perpetrate them on the
assumption of State sovereignty, nor commit atrocities and then rely on a claim of territorial
integrity notwithstanding the sentiments and ineluctable resentments of the “people” or
“population” victimized. […] The basic lesson is clear: no State can use territory to destroy
the population. Such atrocities amount to an absurd reversal of the ends of the State, which
was created and exists for human beings, and not vice-versa”), 184 (“In the current evolution
of international law, international practice (of States and of international organizations)
provides support for the exercise of self-determination by peoples under permanent adversity
or systematic repression, beyond the traditional confines of the historical process of
decolonization. Contemporary international law is no longer insensitive to patterns of
systematic oppression and subjugation”), 206 (“Under contemporary jus gentium, no State
can revoke the constitutionally guaranteed autonomy of a “people” or a “population” to start
then discriminating, torturing and killing innocent persons, or expelling them from their
homes and practicing ethnic cleansing — without bearing the consequences of its criminal
actions or omissions. No State can, after perpetrating such heinous crimes, then invoke or
pretend to avail itself of territorial integrity; the fact is that any State that acts this way
ceases to behave like a State vis-à-vis the victimized population.”)
112 See Written Statement of Germany, p. 35; Written Statement of Estonia, § 2.1.1., p. 6‒9;
Written Statement of Denmark, § 2.7, p. 12; Written Statement of Finland, § 10, 12, p. 5, 7;
Written Statement of Albania, § 75, 79, 86‒92, p. 40, 42, 44‒48; Written Statement of Ireland
§ 32, p. 10, § 33 iii, p 11; Written Statement of the Netherlands, § 3.9‒3.13, p. 9‒11; Written
Statement of Switzerland, § 81‒86, p. 21‒23; Written Statement of Poland, § 6.5, 6.10‒ 6.12
28
47. In its landmark judgment regarding the legality of unilateral secession
under domestic and international law, the Supreme Court of Canada
similarly affirmed that a State is entitled to the protection of its territorial
integrity as long as its government represents the whole of the people within
its territory in its own internal arrangements on a basis of equality and
without discrimination.113 The right of secession (or external selfdetermination)
accordingly arises when it is not possible for a people to
exercise their right of self-determination within the framework of an existing
state (internal self-determination), in the following exceptional
circumstances: (1) former colonies; (2) where a people is oppressed (for
example, under foreign military occupation); or (3) where a definable group is
denied meaningful access to government to pursue their political, economic,
social and cultural development.114 The Supreme Court of Canada asserted
that “[i]n 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.”115
48. Internationally recognized secession, therefore, operates akin to the
R2P doctrine, where sovereignty and territorial integrity are dependent upon
upholding the rights of citizens. Canada has promoted the right to remedial
secession through its support for an independent State of Palestine,116 as well
as its vote in favor of recognizing the independence of the State of Kosovo
p. 25‒27; Written Statement of Maldives, p. 1; Written Statement of Slovenia p. 2/3; Croatia,
see CR 2009/29 of 7 December 2009, § 13, p. 53, §43, p. 58, § 56‒61, p. 61‒62; the Hashemite
Kingdom of Jordan, see CR 2009/31 of 9 December 2009, § 10, p. 29, § 24, p. 33, 38, p. 37;
Written Statement of Romania, § 134, p. 39; Belarus, see CR 2009/27 of 3 December 2009;
Written Statement of the Russian Federation, § 88, p. 31‒ 32.
113 Reference re Secession of Quebec, [1998] 2 SCR 217, paras. 126-130. In this respect, the
Declaration on Friendly Relations, the Vienna Declaration, and the Declaration on the
Fiftieth have equally affirmed that “the right of peoples to take any legitimate action, in
accordance with the Charter of the United Nations, to realize their inalienable right of selfdetermination
[…] shall not be construed as authorizing or encouraging any action that
would dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States conducting themselves in compliance with the principle of
equal rights and self-determination of peoples and thus possessed of a Government
representing the whole people belonging to the territory without distinction” (emphasis added).
Accordingly, a State which does not conduct itself “in compliance with the principles of equal
rights and self-determination of peoples” and instead maintains a government based on
discriminatory practices may not avail itself of the protection of the principle of territorial
integrity to limit the exercise of the external right to self-determination.
114 Reference re Secession of Quebec, [1998] 2 SCR 217, paras. 131-138, 150, 154.
115 Reference re Secession of Quebec, [1998] 2 SCR 217, para. 138 (emphasis added).
116 See UN General Assembly Third Committee, “Concluding Session, Third Committee
Approves Draft Resolution “The Right of the Palestinian People to Self-determination”,
GA/SHC/4285, 19 November 2019, during which the representative of Canada voted in favor
of GA draft resolution A/C.3/74/L.58 reaffirming “the right of the Palestinian people to selfdetermination,
including the right to their independent State of Palestine”.
29
after the latter’s unilateral declaration of independence.117 As seen in
situations such as that of East Timor, Kosovo and South Sudan, secession
became the option of last resort for the international community once it
became clear that Indonesia, Serbia and Sudan had committed serious
crimes. As detailed below, the Armenians of Azerbaijan and Artsakh have
suffered such systematic persecution, atrocities and gross human rights
violations as to make any option for their internal self-determination or
participation in Azerbaijan impossible.118 Artsakh’s circumstances thus fall
squarely in line with such situations justifying its remedial secession or
recognition of independence from Azerbaijan.
b. Azerbaijan’s reliance on the 1993 UN Resolutions is inapposite
49. Azerbaijan often cites four UN Security Council resolutions adopted in
1993 (“Resolutions”) to support its territorial claim to Artsakh.119 According
to Azerbaijan, the Resolutions establish that: the occupied regions including
Nagorno-Karabakh are part of Azerbaijan; Armenia is the aggressor; and
Armenia was in continual violation of the Resolutions by not withdrawing its
forces from occupied Azerbaijani territory. Azerbaijan also relies on the
Resolutions, stating that it is merely implementing them, to justify its use of
force against the Armenians of Artsakh.120
50. The UN Security Council has no authority whatsoever to make any
decisions as to statehood or territorial limits through its resolutions or
otherwise. The only principal UN organ vested with such powers is the
117 Canada recognized the sovereignty of Kosovo in 2008, two years prior to the International
Court of Justice’s Kosovo Advisory Opinion. Arguably, Canada even recognized a right of
remedial secession in its 14 February 1972 full diplomatic recognition of Bangla Desh (as it
was then known) contrary to the express wishes of (West) Pakistan and prior to United
Nations recognition. Such recognition was premised on the understanding that only by
recognizing Bangla Desh could Canada provide the aid necessary to prevent a major
humanitarian catastrophe. As Secretary of State for External Affairs Mitchell Sharp stated,
diplomatic representation allowed Canada to carry out its plan to deliver aid to Bangla Desh.
118 For more details on the extent of the atrocities committed against the Armenians of
Azerbaijan and Artsakh, see infra Section IV(B)(ii): Azerbaijan commits atrocious crimes
against Armenians.
119 UN Security Council Resolution 822, S/RES/822, 30 April 1993, retrieved from
http://unscr.com/en/resolutions/doc/822; UN Security Council Resolution 853, S/RES/853, 29
July 1993, retrieved from http://unscr.com/en/resolutions/doc/853; UN Security Council
Resolution 874, S/RES/874, 14 October 1993, retrieved from
http://unscr.com/en/resolutions/doc/874; UN Security Council Resolution 884, S/RES/884, 12
November 1993, retrieved from http://unscr.com/en/resolutions/doc/884.
120 See, e.g., MENAFN-AzerNews, “Azerbaijan itself implementing UN Security Council
resolutions”, 21 October 2020, retrieved from https://menafn.com/1100994787/Azerbaijanitself-
implementing-UN-Security-Council-resolutions (“President Ilham Aliyev has […] always stressed that in case the conflict is not resolved by peaceful negotiations, Azerbaijan
reserves the right to free its territory from military occupation. Today, Azerbaijan uses this
right, it itself has begun to implement the resolutions of the UN Security Council and
therefore no one has the right or arguments to reproach it for anything.”)
30
International Court of Justice. The Resolutions may therefore not be used to
claim ownership of territory. Furthermore, none of the Resolutions ever
direct any other UN member states to refuse the recognition of Artsakh, in
contrast to directions the Security Council has given regarding certain
illegitimate regimes or declarations of independence in the past.121
51. The primary responsibility of the UN Security Council is to maintain
international peace and security, and the Resolutions therefore must be read
through the lens of this objective. The Resolutions were adopted in the
context of the active hostilities in 1993 – two years after Artsakh’s
declaration of independence, and only when territories adjacent to Artsakh’s
1991 borders fell under its control in 1993 – with the specific aim to end those
hostilities. The Resolutions also reaffirm the respect for sovereignty and
territorial integrity “of all States in the region”. All references to territories
made in these Resolutions must thus be interpreted in the context of an
ongoing war over a secession that had already taken place.122
52. The Resolutions also reiterate the UN Security Council’s support for
the OSCE Minsk Group as the appropriate framework to negotiate a final
settlement. The Resolutions are directly addressed to Nagorno-Karabakh and
Azerbaijan, and address Armenia only indirectly, calling upon it to use its
influence to achieve compliance by Nagorno-Karabakh of the Resolutions –
which Armenia has repeatedly done through active participation in the peace
process under the auspices of the OSCE Minsk Group. Beyond this and an
expressed concern at the deterioration of relations between Armenia and
Azerbaijan, the Resolutions make no further reference to Armenia, and in no
way do they ever assert or imply that Armenia is an aggressor.
53. The Resolutions, which primarily demanded the “immediate cessation
of hostilities and hostile acts with a view to establishing a durable cease-fire”,
led to the 1994 and 1995 ceasefire agreements. With the execution of these
ceasefire agreements, the Resolutions achieved the rightful purpose for which
they were adopted, and accordingly have questionable continued relevance.123
Despite this, Azerbaijan has repeatedly violated the Security Council’s
demand by breaching the ceasefire regime and recommencing hostilities,
most notably in April 2016 and September 2020.
54. The UN Security Council did not adopt any of the Resolutions under
Chapter VII of the UN Charter, which is the only avenue to mandate the use
of force, and the sole prerogative of which lies with the UN Security Council.
121 See Arbour and Parent, p. 309, referring to Rhodesia, Namibia, the former Bantustans of
South Africa and the Turkish Republic of Northern Cyprus.
122 See Vladimir Kazimirov,”Azerbaijan and the UN Security Council’s Resolutions” in Peace
to Karabakh: Russia’s Mediation in the Settlement of the Nagorno-Karabakh Conflict,
(Moscow: VES MIR Publishers, 2014), pp. 347-363, retrieved from
http://www.vn.kazimirov.ru/mir2014.files/Peace_to_Karabakh_book.pdf.
123 Ibid.
31
Accordingly, any use of force by Azerbaijan against Artsakh and its people is
wholly inconsistent with the UN Charter and a violation of international law
as an act of aggression.124 It is also inconsistent with the Resolutions, every
one of which reaffirms the “inadmissibility of the use of force for the
acquisition of territory”. Azerbaijan’s pretense of implementing the
Resolutions to justify its use of force against Artsakh is therefore not only
invalid and perverse, but also completely illegal.125
ii. Azerbaijan commits atrocious crimes against Armenians
a. History of persecution and pogroms
55. The advent of Sovietization did not quell anti-Armenian sentiments in
Azerbaijan, which has always had a consistent, clear policy to “de-
Armenianize” Artsakh and force Armenians to leave, whether it was through
campaigns of violence and intimidation, orchestrated by local Azerbaijani
authorities, or through economic underdevelopment and cultural
repression.126 For instance, the Azerbaijan SSR authorities neglected Artsakh
Armenian schools and cultural institutions,127 and willfully neglected and
destroyed Armenian cultural landmarks, notably in the region of
Nakhichevan.128 Armenian authors could not publish their works in
Artsakh,129 and the import of Armenian literature or learning materials from
the Armenian SSR was forbidden.130 As part of its bid to impoverish the area,
the Azerbaijan SSR transferred Artsakh’s industrial sector to other regions of
Azerbaijan.131 Industrial production and investments per capita were thus
three times lower in Artsakh than in the Azerbaijan SSR.132 This pattern of
oppression, which finally erupted in outbreaks of ethnic violence against
Armenians of Azerbaijan, provided ample reason for Artsakh’s consistent
pleas, throughout the entire Soviet period, for independence from any
Azerbaijani administrative authority or, alternatively, for unification with
the Armenian SSR.133
56. In 1988, days after Artsakh requested to unite with the Armenian
SSR, the violence against Armenians in the Azerbaijan SSR escalated leading
to several anti-Armenian massacres, including the Sumgait Pogrom in
February 1988, the Kirovabad pogrom in November 1988, and the Baku
124 See UN General Assembly Resolution 3314 (1974), defining aggression and including
within it the non-mandated use of force against unrecognized and non-UN member states as
well. The Eritrea-Ethiopia Claims Commission has also confirmed that self-defense cannot
be invoked to settle territorial disputes, even in situations when the party resorting to the
use of force has a valid claim over the territory in question, including when the land in
question is unlawfully occupied. See Eritrea-Ethiopia Claims Commission, Partial Award,
Jus ad Bellum: Ethiopia’s Claims 1-8 (19 Dec. 2005), 45 I.L.M. p. 430 (2006), para. 10.
125 See, e.g., Statement of President Ilham Aliyev, Twitter, 26 October 2020, retrieved from
https://twitter.com/presidentaz/status/1320763657329004544 (“We are implementing the UN
Security Council resolutions single-handedly. Although it is the duty of the UN Security
Council. We have created a new reality. Now everyone must reckon with the new reality.”)
32
pogrom in January 1990.134 Azerbaijani authorities took no measures
whatsoever to stop the atrocities, and local police, comprised almost entirely
of ethnic Azerbaijanis,135 took no action.136 Almost all 14,000 Armenians in
Sumgait fled the city after the pogrom.137 In the spring of 1991, Armenians of
the villages of Getashen, Martunashen and other villages in Artsakh were
violently assaulted, raped, killed and deported out of their homes as part of
what was called “Operation Ring”.138 As a result, full-blown war erupted in
early 1992, during which inter-ethnic strife reached its peak, resulting in
over 30,000 deaths and the displacement of over one million people.139
b. Armenophobia and hate speech
57. Violence against Armenians is further fueled by Azerbaijan’s
Armenophobic state policy that has disturbingly continued – and even gained
in fervor – since the 1994 ceasefire.140 In fact, hate speech against Armenians
126 “Eyewitness account of 1920s in Karabagh”, in The Karabagh File, p. 40.
127 “Zori Balayan on patriotism and Karabagh”, in The Karabagh File, p. 71.
128 “Memorandum by Suren Ayvazian to General Secretary Gorbachev on Karabagh and
Nakhichevan”, in The Karabagh File, p. 81.
129 Luchterhandt, pp. 62-63.
130 Luchterhandt, p. 63.
131 “Petition of Karabagh Armenians to Nikita Khrushchev on re-incorporation of
Mountainous Karabagh in the Armenian S.S.R.”, in The Karabagh File, pp. 42-46.
132 Luchterhandt, p. 60.
133 See The Karabagh File, pp. 40, 42-46, 47, 50, 51.
134 De Waal, p. 91. In June 1990, over 100 leading intellectuals including Jacques Derrida,
Isaiah Berlin and Alain Finkelkraut penned “An Open Letter on Anti-Armenian Pogroms in
the Soviet Union” in which they were “compelled to recognize that crimes against the
Armenian minority have become consistent practice—if not official policy—in Soviet
Azerbaijan. According to the late Andrei Sakharov (New York Times, November 26, 1988),
these pogroms constitute “a real threat of extermination” to the indigenous Armenian
community in Azerbaijan and in the autonomous region of Mountainous Karabakh, whose
inhabitants are 80 percent Armenian. See Jacques Derrida et al., “An Open Letter on Anti-
Armenian Pogroms in the Soviet Union” The New York Review, 27 September 1990,
retrieved from https://www.nybooks.com/articles/1990/09/27/an-open-letter-on-antiarmenian-
pogroms-in-the-sov/.
135 Ibid., p. 33.
136 Svante E. Cornell, “The Armenian-Azerbaijani Conflict and European Security”, in The
International Politics of the Armenian-Azerbaijani Conflict, Ed. Svante E. Cornell, New York,
Palgrave MacMillan, 2017, p. 7.
137 De Waal, p. 40.
138 Caroline Cox and John Eibner, “Ethnic Cleansing in Progress. War in Nagorno
Karabakh”, Institute for Religious Minorities in the Islamic World, Zurich, 1993, p. 45.
139 See, e.g., United Nations High Commissioner for Refugees, “UNHCR publication for CIS
Conference (Displacement in the CIS) – Conflicts in the Caucasus”, 1 May 1996, retrieved
from https://www.unhcr.org/publications/refugeemag/3b5583fd4/unhcr-publication-cisconference-
displacement-cis-conflicts-caucasus.html
140 In a letter dated 11 November 2020, the Republic of Armenia condemned the Republic of
Azerbaijan’s actions and policies adopted during the last decades as being in gross violation
of the 1965 International Convention on the Elimination of All Forms of Racial
33
is omnipresent in political discourse, educational institutions and in the
media in Azerbaijan.141 The European Commission against Racism and
Intolerance (“ECRI”) has consistently decried that an entire generation of
Azerbaijanis has thus now grown up listening to this hateful rhetoric. The
ECRI found that this widespread instrumentalization of hate speech towards
Armenians results in Armenians experiencing discrimination daily.142 It also
denounced the fact that Armenians remaining in Azerbaijan are denied
formal citizenship and thus access to social rights,143 and have to hide their
ethnic origin when applying for employment,144 or simply to avoid
persecution. Political opponents are, in fact, regularly accused of having
Armenian roots or of receiving funds from Armenian sources.145
58. The ECRI further noted with deep concern that even the “fault” of
describing someone as an Armenian is perceived as an insult that justifies
initiating judicial proceedings against the persons making such
statements.146 Human rights activists and intellectuals perceived as pro-
Armenian or critical of the Azerbaijani government have also been targeted,
even sentenced to heavy prison terms on controversial accusations.147 For
example, long-imprisoned Azerbaijani investigative journalist, Khadija
Ismayilova, was targeted for her work exposing President Aliyev’s corruption
Discrimination. See Ministry of Foreign Affairs of the Republic of Armenia “The Republic of
Armenia formally calls on the Republic of Azerbaijan to comply with its international
obligations under the International Convention on the Elimination of All Forms of Racial
Discrimination”, 13 November, 2020, retrieved from: https://www.mfa.am/en/interviewsarticles-
and-comments/2020/11/13/cerd_/10647.
141 See generally The Office of Ombudsman of the Republic of Artsakh, “Armenophobia in
Azerbaijan: Organized Hate Speech and Animosity Towards Armenians”, December 2019,
retrieved from https://artsakhombuds.am/sites/default/files/2019-12/Armenophobia-in-
Azerbaijan-1.00-Interactive-25.09.2018.pdf (“Armenophobia in Azerbaijan”).
142 See European Commission Against Racism and Intolerance, “ECRI Report on Azerbaijan
(Fourth Monitoring Cycle)”, 31 May 2011 (“Fourth ECRI Report”), p. 18, retrieved from
https://rm.coe.int/third-report-on-azerbaijan/16808b557e.
143 Fourth ECRI Report, p. 29 (“attempts to have the courts overturn administrative
decisions refusing to issue these persons with identity documents have proved
unsuccessful”).
144 Fourth ECRI Report, p. 34.
145 “ECRI Report on Azerbaijan (Fifth Monitoring Cycle)”, 7 June 2016 (“Fifth ECRI Report”),
pp. 9, 10, 15, retrieved from https://rm.coe.int/fourth-report-on-azerbaijan/16808b5581. See
also a post from Nurlan Ibrahimov, head of PR and media manager of the Qarabag football
club of Azerbaijan, dated October 31, 2020 which read: “We [Azerbaijanis] must kill all
Armenians – children, women, the elderly. [We] need to kill [them] without [making a] distinction. No regrets, no compassion.” On November 4, 2020, the Union of European
Football Association (“UEFA”) provisionally banned Ibrahimov from exercising any footballrelated
activity, effective immediately, until the UEFA’s Control, Ethics and Disciplinary
Body decides the merits of the case, retrieved from
http://www.insideworldfootball.com/2020/11/04/uefa-bans-qarabags-ibrahimov-call-killarmenians.
146 Fourth ECRI Report, p. 29.
147 Fifth ECRI Report, p. 9.
34
when local pro-government press published an article entitled “Khadija’s
Armenian Mother Should Die”, containing details of the Baku district where
her mother lived.148 In addition, when famed 81-year old author Akram
Aylisli, published a book perceived as sympathetic to Armenians, he was
censored, stripped of his pension and honorary title, has been subject to an
officially-sanctioned harassment campaign, and is currently under house
arrest awaiting trial.149
59. Anti-Armenian hateful rhetoric is also included in Azerbaijani school
curricula,150 with stories and sayings portraying Armenians as treacherous,
dishonest, untrustworthy, hypocrites, dangerous, and evil.151 The singling out
of the Armenian ethnic group as less than human echoes the stigmatization
and dehumanization that Armenians suffered at the hands of the Ottoman
Empire culminating in the Armenian Genocide of 1915-1923.
60. Top-ranking Azerbaijani officials have particularly disturbing anti-
Armenian rhetoric that consistently dehumanize Armenians in their public
addresses and openly admit their intent to completely cleanse the region of
Armenians.152 In 2005, at a meeting with a German delegation, the Mayor of
Baku, Hajibala Abutalybov, declared: ‘‘Our goal is the complete elimination of
Armenians. You, Nazis, already eliminated the Jews in the 1930s and 40s,
right? You should be able to understand us.”153 Allahşükür Paşazadə,
religious leader of the Caucasus Muslims has also stated that “[f]alsehood
and betrayal are in the Armenian blood.”154
61. In November 2012, President Aliyev described Armenia as a country of
“no value”, a “colony, an outpost run from abroad, a territory artificially
created on ancient Azerbaijani lands.”155 In January 2015, he stated that
148 See Amnesty International, “Azerbaijan: The Repression Games. The voices you won’t
hear at the first European games”, June 2015, p. 6 (“The allegation that Khadija Ismayilova’s
relatives were Armenian tapped into widespread hostility towards Armenians following the
conflict in Nagorno-Karabakh in the early 1990s”), retrieved from
https://www.amnesty.org/download/Documents/EUR5517322015ENGLISH.PDF.
149 See PEN America, “Akram Aylisli: Azerbaijan – Status: On Trial”, retrieved from
https://pen.org/advocacy-case/akram-aylisli/; Trend, “Azerbaijani President signs orders to
deprive Akram Aylisli of presidential pension and honorary title”, 2013,
https://web.archive.org/web/20140327182556/http://en.trend.az/news/politics/2116873.html.
150 See Armenophobia in Azerbaijan, p. 30.
151 See, e.g., Proverbs and sayings on Armenia and the Armenians, retrieved from
http://azerichild.info/en/proverbs-azerbaijan-childhood-6.html.
152 The examples are too numerous to cover exhaustively in this paper. For more examples,
see Armenophobia in Azerbaijan, pp. 7 et seq.
153 Stated in 2005 at a meeting with a municipal delegation from Bavaria, Germany. See
“The Caucasus: Frozen Conflicts and Closed Borders”, United States Government Printing
Office, 18 June 18, 2008, at p. 50, retrieved from https://www.govinfo.gov/content/pkg/CHRG-
110hhrg43066/pdf/CHRG-110hhrg43066.pdf.
154 See Armenophobia in Azerbaijan, p. 15.
155 Statement by President Ilham Aliyev, Twitter, 20 November 2012, retrieved from
https://twitter.com/presidentaz/status/270827003521929216?s=19 and
35
Armenia is “not even a colony, it is not even worthy of being a servant.”156 A
few months later, Azerbaijani MP Elman Mammadov stated that “Turkey
and Azerbaijan could together wipe Armenia off the face of the Earth at a
blow, and the Armenians should beware of that thought.”157 More recently, on
17 October 2020, President Aliyev declared that if Armenians “do not leave
our lands of their own free will, we will chase them away like dogs and we are
doing that.”158 In a televised interview on 13 November 2020, General
Hüseynov Camal of the Azerbaijani armed forces menacingly declared that,
after Karabakh, they would be coming after every last Armenian (repeatedly
calling them “dogs”) in Armenia until Yerevan, referring to it as “West
Azerbaijan”.159
62. The Azerbaijani government has gone so far as hailing a convicted
murderer as a national hero for killing an Armenian in his sleep with an ax.
Ramil Safarov, a member of the Azerbaijani Army, was convicted in Hungary
of murdering Armenian Army Lieutenant Gurgen Margaryan with an ax in
his sleep, during a NATO-sponsored training seminar in Budapest. Following
his extradition to Azerbaijan, Safarov was immediately pardoned by
President Aliyev, promoted to the rank of major by the Minister of Defence,
and gifted an apartment with over eight years of back pay. The Azerbaijani
Ombudsman praised Safarov as “an exemplary model of patriotism for the
Azerbaijani youth.” Agshin Mehdiyev, the Permanent Representative of
Azerbaijan to the Council of Europe published the following message:
“Armenians should better not sleep peacefully as long as the Karabakh
conflict is unsettled, the possibility of incidents similar to the one in
Budapest cannot be ruled out.” In May 2020, the European Court of Human
Rights found that the actions taken by the Azerbaijani authorities, who
pardoned and then glorified convicted murderer Ramil Safarov, contravened
Article 14 of the European Convention on Human Rights (prohibition of
discrimination) and constituted racial discrimination against Armenians.160
c. Present war crimes and atrocities
63. Starting on 27 September 2020, Azerbaijan’s armed forces, backed by
Turkish forces and hired jihadist mercenaries, launched a large-scale attack
http://www.twitlonger.com/show/k2p4ba
156 Statement by President Ilham Aliyev, Twitter, 29 January 2015, retrieved from


157 See Armenophobia in Azerbaijan, p. 12.
158 President of the Republic of Azerbaijan, “Ilham Aliyev addressed the nation”, 17 October
2020, retrieved from https://en.president.az/articles/43334.
159 See Bilsəydilər erməni dilini bilirəm dərimi soyardılar – Hüseynov Camal, YouTube, 13
November 2020, retrieved from https://www.youtube.com/watch?v=YworvlLKGyQ. “West
Azerbaijan” is an irredentist political concept that is used in the Republic of Azerbaijan
mostly to refer to the territory of the Republic of Armenia.
160 See European Court of Human Rights, Case of Makuchyan and Minasyan v. Azerbaijan
and Hungary (Application No. 17247/13), Judgment, 26 May 2020, paras. 25, 215-221, 237.
36
with aerial, artillery, rocket and tank fire strikes on over 120 civilian towns
and villages in Artsakh,161 many 90-100 km away from the line of contact and
containing no military objects.162 Azerbaijan’s war was clearly “the next
phase in a campaign to expel and ethnically cleanse Armenians from their
indigenous lands.”163 Azerbaijan deliberately attacked civilians, civilian
infrastructures and committed countless war crimes.
64. Amidst the regular shelling of Artsakh’s population centers, 85% of the
civilian population of Artsakh (approximately 130,000 people)164 were forced
to flee, including 40,000 children who took refuge in neighbouring
Armenia,165 many showing signs of anxiety, depression and sleeplessness.166
The attacks killed at least 49 Armenian civilians and over 158 were seriously
wounded,167 a number which would have been incomparably higher had 85%
of the population not fled. Amongst those attacked was 9-year-old Victoria
Gevorgyan who was killed from shelling on 27 September 2020 in her
backyard, in the Martuni region of Artsakh.168 Her mother and her two-year
old brother also received shrapnel wounds when trying to flee.169 The same
day, pregnant Anna Galstyan was wounded from shelling in the Mataghis
161 These included densely populated communities such as Artsakh’s capital Stepanakert and
the towns of Shushi, Hadrut, Martuni, Martakert, Askeran, Karvajar, Berdzor, villages of
Taghaser, Vardashat, Spitakshen, Maghavus, Nerkin Horatagh, Alashan and Mataghis. See:
HRORA, Second Interim Report on the Azerbaijani Atrocities against the Artsakh population
in September-October 2020, Updated Edition, 13 October 2020, p. 4, retrieved from
https://www.mfa.am/filemanager/NKR_war_2020/nk_hr/3.pdf
162 HRORA, Ad Hoc Report on the Children Rights Affected By the Azerbaijani Attacks
Against the Republic of Artsakh (Nagorno-Karabakh), 9 November 2020, p. 3, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Artsakh-Ombudsman-report-onchildren-
rights-09.11.2020.pdf, [Ad Hoc Report on Children’s Rights] 163 David L. Phillips and Salpi S. Kevorkian, “The Failure to Protect Civilians in Artsakh”,
Columbia University Institute for the Study of Human Rights, 17 November 2020, retrieved
from http://www.humanrightscolumbia.org/news/failure-protect-civilians-artsakh
164 Unicef, “Unicef Statement on one month of fighting in and beyond Nagorno Karabakh”, 28
October 2020, retrieved from https://www.unicef.org/armenia/en/press-releases/unicefstatement-
one-month-fighting-and-beyond-nagorno-karabakh
165 Ad Hoc Report on Children’s Rights, p. 19, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Artsakh-Ombudsman-report-onchildren-
rights-09.11.2020.pdf
166 The United Nations Office for the Coordination of Humanitarian Affairs, “Nagorno-
Karabakh fighting leaves children who fled the conflict in distress”, 22 October 2020,
retrieved from https://reliefweb.int/report/azerbaijan/nagorno-karabakh-fighting-leaveschildren-
who-fled-conflict-distress
167 Ad Hoc Report on Children’s Rights, p. 3, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Artsakh-Ombudsman-report-onchildren-
rights-09.11.2020.pdf
168 Ad Hoc Report on Children’s Rights, p. 4, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Artsakh-Ombudsman-report-onchildren-
rights-09.11.2020.pdf
169 Ibid.
37
village and delivered her baby prematurely.170 Also heavily wounded were 13-
and 15-year-old cousins, Robert and Narek Gevorgyan, hit by Azerbaijani
shelling while fleeing their home.171 On or around 10 October 2020, at least
four civilians were executed by Azerbaijani soldiers in the town of Hadrut.172
Azerbaijani attacks also reached Armenia, killing and injuring civilians,
damaging houses, schools and property in the villages of Shatvan, Mets
Markis and Sotk.173 On 15 October 2020, a 14-year-old Armenian boy was
severely wounded on his way to a field for harvest in Sotk village,
Armenia.174
65. The damage caused by Azerbaijani forces to civilian infrastructures in
Artsakh is devastating. Azerbaijan intentionally destroyed more than 19,000
buildings and property,175 over 25 crucial energy and electricity stations,176
and several key communication stations and networks.177 More than one
third of all schools in Artsakh were shelled (71 schools and 14
kindergartens).178 On 28 October 2020, Artsakh’s Maternity and Child Health
Center in Stepanakert was bombed,179 in clear violation of international
170 Ibid., p. 5.
171 Ibid., p. 6.
172 Second Interim Report on he Azerbaijani Atrocities, p. 9, retrieved from
https://www.mfa.am/filemanager/NKR_war_2020/nk_hr/3.pdf; See also BBC News, “Nagorno-
Karabakh conflict: ‘Execution’ video prompts war crime probe”, 24 October 2020, retrieved
from https://www.bbc.com/news/world-europe-54645254
173 HRDRA, Ad Hoc Public Report On Azerbaijani Drones’ Targeted Attacks Against Peaceful
Population of Armenia and Artsakh in Grave Breach of International Law, Yerevan, 2020, p.
1, retrieved from https://www.mfa.am/filemanager/NKR_war_2020/ra_hr/1.pdf ; See also:
HRDRA, Ad Hoc Report On Fact Finding Activities in Villages of Gegharkunik Province of
Armenia damaged by Azerbaijani Military Attacks 30 September-1 October, Yerevan, 2020,
p.1-2, retrieved from https://www.mfa.am/filemanager/NKR_war_2020/ra_hr/2_s.pdf
174 “UNICEF Statement on the Nagorno Karabakh conflict”, 15 October 2020, retrieved from
https://www.unicef.org/armenia/en/press-releases/unicef-statement-nagorno-karabakhconflict-
1
175 HRDRA and HRORA, Ad Hoc Public Report on the Use of Incendiary Ammunition of Mass
Destruction (Incendiary Weapon) Against Civilian Objects of Artsakh (Nagorno-Karabakh) by
the Azerbaijani Armed Forces, November 2020, p. 4, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Report-On-White-Phosphorus.pdf [Ad
Hoc Report on the Use of Incendiary Ammunition] 176 Second Interim Report on he Azerbaijani Atrocities, p. 19, retrieved from
https://www.mfa.am/filemanager/NKR_war_2020/nk_hr/3.pdf
177 Ibid., p. 21.
178 Ad Hoc Report on Children’s Rights, p. 10, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Artsakh-Ombudsman-report-onchildren-
rights-09.11.2020.pdf; See also: Unicef, “Unicef Statement on one month of fighting
in and beyond Nagorno Karabakh”, 28 October 2020, retrieved from
https://www.unicef.org/armenia/en/press-releases/unicef-statement-one-month-fighting-andbeyond-
nagorno-karabakh
179 Ad Hoc Report on Children Rights, p. 15, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Artsakh-Ombudsman-report-onchildren-
rights-09.11.2020.pdf. See also video footages published 28 October 2020 by the
Artsakh Ombudsperson, the Armenian Ministry of Defense and the Armenian Unified Info
38
law.180 Patients (including children) had already sought refuge in the
hospital’s basement at the time. The Azerbaijani forces also intentionally
attacked the 19th Century Holy Savior Ghazanchetsots Cathedral at the
center of the city of Shushi181 with the use of drones.182 Civilians had taken
refuge in the church basement at the time. The attack injured three
journalists183 and killed 28-year-old resident Grisha Narinyan who was
accompanying the journalists that day.184 After the Azerbaijani forces
captured the town of Shushi, they caused additional damages and vandalism
to the Cathedral.185
66. Azerbaijan even released incendiary ammunition of mass destruction
containing chemical elements, including white phosphorus, in the primary
forests of Artsakh, committing wide scale ecocide.186 White phosphorus
Center retrieved from https://www.facebook.com/artak.beglaryan/videos/3668331173205093 ;
https://twitter.com/ShStepanyan/status/1321730287710121984 ;
https://www.facebook.com/ArmenianUnifiedInfoCenter/videos/636827646985319/
180 See article 18 of the Geneva Convention IV, “Geneva Convention Relative to the Protection
of Civilian Persons in Times of War”, 12 August 1949, 75 U.N.T.S. 287: “Civilian hospitals
organized to give care to the wounded and sick, the infirm and maternity cases, may in no
circumstances be the object of attack, but shall at all times be respected and protected by the
Parties to the conflict.”
181 A violation of the UN Educational, Scientific and Cultural Organization (UNESCO)
Convention for Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954,
retrieved from https://www.refworld.org/docid/40422c914.html.
182 HRORA, Ad Hoc Public Report on the Azerbaijani Targeted Attacks Against the Saint Holy
Savior Ghazanchetsots Cathedral of Shusho, Artsakh (Nagorno-Karabakh) as A War Crime
and Crime Against Humanity, 20 October 2020, retrieved from
https://artsakhombuds.am/sites/default/files/2020-10/Report_Ghazanchetsots_Cathedral_-
20.10.2020.pdf
183 Le Monde reporter Allan Kaval, who was severely wounded, described the attacks as a
“bombing of the town” “in a rain of fire and metal.”See Allan Kaval, “Ça a frappé fort. Mais je
suis là.”, 8 October 2020, retrieved from
https://www.facebook.com/allan.kaval/posts/10158545812272226.
184 Ibid. A number of other journalists were also targeted and injured during the war. On
October 1 2020, 4 journalists (two French and two Armenian) were targeted by shelling in
the town of Martuni. A local resident accompanying them was killed. On the same day the
Azerbaijani armed forces targeted a car transporting journalists of the Agence France-Presse
international news agency. On October 2, Azerbaijan again targeted a minibus with
Armenian and foreign journalists in the town of Martakert. See: Second Interim Report on
Azerbaijani Atrocities, p. 16, retrieved from
https://www.mfa.am/filemanager/NKR_war_2020/nk_hr/3.pdf
185 Ministry of Education, Science, Culture and Sports of the Republic of Armenia, “The RA
ESCS Ministry appeals to the relevant international bodies to immediately prevent cultural
vandalism”, retrieved from https://escs.am/en/news/7428; See also: Public Radio of Armenia,
“Armenian Ghazanchetsots Church in Shushi vandalized”, 14 November 2020, retrieved from

186 Ad Hoc Report on the Use of Incendiary Ammunition, p. 6 and following, retrieved from
https://artsakhombuds.am/sites/default/files/2020-11/Report-On-White-Phosphorus.pdf. See
also: Sara Daniel “Au Karabakh, des crimes de guerre au phosphore?” 13 November 2020,
39
causes long-term dangerous consequences for the life and health of humans,
natural ecosystems, biodiversity and critical species habitats.187 Azerbaijani
forces destroyed and damaged ancient forests, ecosystems and protected
areas of Artsakh near the communities of Shushi, Martakert and Askeran.188
It is estimated that a total of 1,815 hectares of Artsakh’s forests have burned
as a result of Azerbaijan’s use of white phosphorus,189 causing widespread
environmental damage190 including the contamination of rivers and
groundwater, and indiscriminate harm to civilians burned by these chemicals
and fires, many of whom lived close to these forests or had taken refuge in
them during the war.191 The use of white phosphorus weapons violates
numerous international law conventions.192
retrieved from: https://www.nouvelobs.com/monde/20201113.OBS36046/au-karabakh-descrimes-
de-guerre-au-phosphore.html.
187 See Centers for Disease Control and Prevention, National Institute for Occupational
Safety and Health, “White Phosphorus”, retrieved from
https://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750025.html. See also: Agency
for Toxic Substances and Disease Registry, “Toxicological Profile for White Phosphorus” U.S.
Department of Health and Human Services, Public Health Service, September 1997;
Marianne E. Walsh, Michael R. Walsh, Charles M. Collins, Charles H. Racine “White
Phosphorus Contamination of an Active Army Training Range” Water Air and Soil Pollution,
June 2014.
188 Armenia Tree Project, “Joint Statement on Azerbaijan’s Use of Prohibited Weapons to
Destroy Ancient Forests of Artsakh”, 3 November 2020, retrieved from
https://www.armeniatree.org/en/news/85.
189 Zartonk Media, “To Date, Azeris Have Burned Over 1,815 Hectares Of Artsakh’s Forests
Using White Phosphorus Munitions”, 2 November 2020, retrieved from
https://zartonkmedia.com/2020/11/02/to-date-azeris-have-burned-over-1815-hectares-ofartsakhs-
forests-using-white-phosphorus-munitions/
190 The Armenian Weekly, “Armenian Environmental Organizations Raise Alarm about Use
of White Phosphorus in Artsakh’s Forested Regions”, 4 November 2020, retrieved from
https://armenianweekly.com/2020/11/04/armenian-environmental-organizations-raise-alarmabout-
use-of-white-phosphorus-in-artsakhs-forested-regions/; Artsakh is recognized as one of
the world’s biodiversity hotspots. The region is known for its high rate of endemism and for
being home to 6,000 plant species, 153 species of mammals, 400 species of birds and other
living organisms. Hundreds of plant and animal species are found in Artsakh which are
listed in the local Red Book and the IUCN Red List of Threatened Species, and have a
protection status at a global level. Notable is the critically endangered and rare Caucasian
Leopards, of which only 1,000 exist in the wild. Other protected species in Artsakh include
the brown bear, Bezoar Goat, Armenian Mouflons, Eurasian Lynx, vultures, and eagles.
191 Notably, the Azerbaijani government has also granted Anglo Asian Mining, an
Azerbaijani mining company, the right to exploit parts of Artsakh for gold mining. The
company’s mining activities will take a further toll on the environment and health of species.
On 28 October 2020, Anglo Asian Mining PLC announced an update on the company’s
Venjaly contract in the Zangilan district. The 115 square miles deposit contains 6.5 tonnes of
C1 and C2 gold and 2.3 tonnes of P1 gold. See: Seeking Alpha, “The Nagorno-Karabakh
Conflict Unlocks Value For Anglo Asian Mining”, retrieved from
https://seekingalpha.com/article/4385896-nagorno-karabakh-conflict-unlocks-value-for-angloasian-
mining ; See also: Mining Technology, “Anglo Asian Mining accused of “exploiting”
border dispute for financial gain”, 9 November 2020, retrieved from https://www.mining40
67. After six weeks of attacks, more than 2,500 Armenian soldiers (most
between the ages of 18-25) were killed. This number is shockingly high
compared to the number of casualties in the Nagorno-Karabakh war of 1988-
1994, which resulted in 30,000 deaths from all sides. The fate of Armenian
prisoners of war currently in Azerbaijani custody is extremely concerning.193
At the time of writing (25 November 2020), not a single Armenian prisoner of
war has been returned alive. There is also increasing evidence of numerous
atrocities committed by the Azerbaijani armed forces against captured
Armenians and corpses pursuant to the latest report by the Human Rights
Defenders of Armenia and Artsakh.194 Videos of Azerbaijani soldiers
humiliating, torturing, skinning and beheading Armenian prisoners of war
have surfaced on social media accompanied by violent hate speech towards
Armenians.195
technology.com/news/anglo-asian-mining-accused-of-exploiting-border-dispute-for-financialgain/
192 See 1977 Protocol I to the 1949 Geneva Conventions, Can. T.S. 1991 No 2, articles 35, 55,
retrieved from https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf;
Environmental Modification Convention (ENMOD), formerly Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Techniques, 10 December
1976, 31 U.S.T. 333, 1108 U.N.T.S. 152, retrieved from
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-
1&chapter=26&lang=en; Rio Declaration, principle 24, A/CONF.151/26 (Vol. I), 12 August
1992, retrieved from
https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalco
mpact/A_CONF.151_26_Vol.I_Declaration.pdf; Rome Statute of the International Criminal
Court, A/CONF.183/9 of 17 July 1998 (amended in 2010), article 8(2)(b)(iv), retrieved from
https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf; Protocol III of the Convention
on Certain Conventional Weapons, 10 October 1980, retrieved from
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-
2&chapter=26&lang=en; See also “Green War: An Assessment of the Environmental Law of
International Armed Conflict” (1997) 22 Yale Int’l L.J. 1.; M.C. Power, “La protection de
l’environnement en droit international humanitaire: Le cas du Kosovo” (2001-2) 33 Ottawa L.
Rev 225.
193 In the April 2016 war, 90% of Armenian soldiers who fell under the custody of Azerbaijani
forces were tortured, executed or mutilated. See HRORA, “Artsakh Ombudsman’s Second
Report on Atrocities Committed By Azerbaijan During the April 2016 War. Public Edition”,
Shushi, 2016, p. 4, retrieved from https://artsakhombuds.am/sites/default/files/2019-
12/Report_PUBLIC.pdf
194 Panorama.am, “Fourth report on Azerbaijani atrocities against captured ethnic
Armenians complete, Ombudsman says”, 21 November 2020, retrieved from
https://www.panorama.am/en/news/2020/11/21/Ombudsman-says/2406147. See also Fourth
Report on POWs (available upon request).
195 See inter alia Second Interim Report on Azerbaijani Atrocities, p. 27, retrieved from
https://www.mfa.am/filemanager/NKR_war_2020/nk_hr/3.pdf; See also Public Radio of
Armenia, “Azerbaijani military forces beheaded an Armenian soldier -Human Rights
Defender”, 19 October 2020, retrieved from https://en.armradio.am/2020/10/19/azerbaijanimilitary-
forces-beheaded-an-armenian-soldier-human-rights-defender/; Fourth Report on
POWs (available on request).
41
68. In light of Azerbaijan’s widespread and state-sponsored
dehumanization and hate speech towards Armenians, thousands of
Armenians living in the portions of Artsakh which have fallen under
Azerbaijani control have fled their homes and lands in an exodus towards
Armenia (some even unearthing the remains of their loved ones to bring
along with them).196 There are already reports of torture and killings of
captured civilians who have returned or stayed behind.197
69. The transfer of parts of Artsakh to Azerbaijan risks the fate of the
millennia-old cultural and religious heritage of outstanding value to
humanity and creates a real threat of cultural genocide for over 4,000
Armenian heritage sites.198 The head of the Armenian Apostolic Church
recently spoke out about the hundreds of historical churches, monasteries,
monuments and cultural museums in Artsakh at risk of becoming the “silent
victims of conquest” by Azerbaijan.199 The concerns of cultural genocide in
Artsakh are very real given the distinct historical precedent of Nakhichevan,
a historically and demographically Armenian territory that once included
thousands of examples of Armenian Christian cultural heritage. Azerbaijan,
upon taking control of Nakhichevan, demolished or claimed 89 Armenian
churches and cathedrals, 5,840 tombstones, crosstones (or “khachkars”) and
ornate headstones, and 22,000 estimated flat tombstones of Armenian
origin.200 Among the erased Armenian heritage sites were the medieval
global trade networks launched by Djulfa merchants, the medieval Djulfa
196 OBS and Agence France Press, “Haut-Karabakh: des Arméniens déterrent leurs morts
avant l’exode”, 17 November 2020, retrieved from
https://www.nouvelobs.com/monde/20201117.OBS36191/haut-karabakh-des-armeniensdeterrent-
leurs-morts-avant-l-exode.html
197 See e.g. HRDRA, “The Azerbaijani soldiers forces humiliate an elderly man, an ethnic
Armenian: The Human Rights Defender”, 18 November 2020, retrieved from
https://www.ombuds.am/en_us/site/ViewNews/1385 and supra, fn. 27.
198 Milana Nikolova, “Concerns grow for the fate of Nagorno-Karabakh’s cultural heritage”
Emerging Europe, 21 November 2020, retrieved from: https://emerging-europe.com/afterhours/
concerns-grow-for-the-fate-of-nagorno-karabakhs-cultural-heritage/; M. Chiara
Biagioni, “Nagorno-Karabakh. Ferrari (Ca’ Foscari): ‘A genocide of Armenian cultural
heritage in the territories transferred to Azerbaijan must not be permitted’”, Servizio
Informazione Religiosa Agenzia d’informazione, 20 November 2020, retrieved from
https://www.agensir.it/europa/2020/11/20/nagorno-karabakh-ferrari-ca-foscari-a-genocide-ofarmenian-
cultural-heritage-in-the-territories-transferred-to-azerbaijan-must-not-bepermitted/;
Samvel Karapetyan, Armenian Cultural Monuments in the Region of Karabakh,
Yerevan, 2001, retrieved from http://www.raa-am.com/BOOK_3/3girqE_poqr.pdf
199 See Catholicos Karekin II, “A Plea to Save Artsakh’s Armenian Heritage”, Christianity
Today, 17 November 2020, retrieved from
https://www.christianitytoday.com/ct/2020/november-web-only/karekin-save-artsakharmenian-
churches-nagorno-karabakh.html.
200 Simon Maghakyan and Sarah Pickman, “A Regime Conceals Its Erasure of Indigenous
Armenian Culture” Hyperallergic, 18 February 2019, retrieved from
https://hyperallergic.com/482353/a-regime-conceals-its-erasure-of-indigenous-armenianculture/
42
cemetery, Surb Hakob and the three adjacent churches of Shorot (founded in
the 12th century), and Surb Karapet (Holy Precursor Church) in Abrakunis.
Since Azerbaijan banned international fact-finders from visiting
Nakhichevan, the world only knows what has happened to these cultural
monuments, historical sites and traces of Armenian origin from satellite
imagery.201
70. Although the 10 November 2020 Ceasefire Statement has entailed a
cessation of hostilities and the deployment of Russian peacekeepers in
Artsakh, the population’s living conditions and geopolitical situation remain
extremely precarious. Artsakh’s cities and towns are heavily contaminated by
explosive remnants of war, including rockets, missiles, artillery projectiles,
and cluster munitions202 and are “pitted with bomb craters, burnt out cars
and shelled buildings.203 Children are particularly vulnerable to injury or
death in that “cluster munitions bear a cruel resemblance to toys.”204
71. Also, even though Canada has called on Turkey to stay out of the
conflict,205 Russia and Turkey have announced their intent to create a joint
monitoring centre of the cease-fire in Azerbaijan (a condition which was not
in the Ceasefire Statement).206 It is also unclear whether jihadist
mercenaries still remain in the area,207 as thousands of them had been sent
by Turkey to Azerbaijan to kill Armenians,208 the whole in violation of
201 Ibid.
202 Joint Bipartisan letter by US Representatives to USAID Acting Administrator John
Barsa, 3 November 2020, retrieved from
https://www.halotrust.org/media/7295/demining_uxo_letter-11320.pdf
203 Halo Trust NGO, “From the Frontline: Nagorno Karabakh”, 2 November 2020, retrieved
from https://www.halotrust.org/latest/halo-updates/stories/from-the-frontline-nagornokarabakh/
204 Ibid.
205 Minister François-Philippe Champagne, “Statement on the ongoing situation in Nagorno-
Karabakh”, 11 November 2020, retrieved from


206 Euronews, “Russia and Turkey to jointly monitor Nagorno-Karabakh ceasefire”, 12
November 2020, retrieved from https://www.euronews.com/2020/11/12/russia-and-turkey-tojointly-
monitor-nagorno-karabakh-ceasefire
207 UN Working Group on the use of mercenaries as a means of violating human rights and
impeding the exercise of the right of peoples to self-determination,
“Mercenaries in and around the Nagorno-Karabakh conflict zone must be withdrawn”,
11 November 2020, retrieved from
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26494&LangID=E
&fbclid=IwAR0_JnkNB7eo-EgeedExyVrl0wruHYff4BwhgLJDEQPSFAFDS9Ax3DBQxvo.
208 Syrian Observatory for Human Rights, “Azerbaijan-Armenia conflict. As more fighters
return to Syria, Turkey sends new batch to Azerbaijan”, 3 November 2020, retrieved from
https://www.syriahr.com/en/190938/; See also Radio France Internationale, “France’s Macron
says Syrian jihadists active in Armenia-Azerbaijan conflict”, 1 October 2020, retrieved from
https://www.rfi.fr/en/international/20201001-macron-claims-syrian-jihadists-active-inconflict-
between-armenia-and-azerbaijan-nagorno-karabakh ; CTV News, “2,000 Mideast
militants fight in Nagorno-Karabakh: Russia FM”, 3 November 2020, retrieved from
43
international humanitarian law.209 These mercenaries have designated the
conflict to be a “part of the Jihad; […] a holy war of Muslims against
Christians”210, and were promised $100 per beheaded Armenian.211
72. Azerbaijan, in deliberately targeting civilian populations, achieved in a
six-week war what it sought to do in the past 100 years, since Sovietization:
remove Armenians from their indigenous lands in Artsakh and make it too
dangerous for them to return. A “peaceful coexistence” under Azerbaijani
rule, where Armenians rights would be protected, is naive and completely
unrealistic, particularly given the Azerbaijani government’s denial of the
value of the existence of Armenians as a people.
73. This hypothesis also ignores the very nature of Azerbaijan’s
authoritarian regime. The government, run by the Aliyev family since
1993,212 is repeatedly criticized by international organizations for its human
rights abuses even on its own citizens: unlawfully arresting opposition
activists213 and journalists,214 censoring the media and internet215 (with one
of the world’s worst press freedom scores, ranking 168th out of 180
https://www.ctvnews.ca/world/2-000-mideast-militants-fight-in-nagorno-karabakh-russia-fm-
1.5172931
209 See International Convention against the Recruitment, Use, Financing and Training of
Mercenaries, 4 December 1989, United Nations, Treaty Series , vol. 2163, p. 75 .
210 Asia News, “Turkey sends 4,000 Syrian ISIS mercenaries to fight against the Armenians”,
28 September 2020, retrieved from
http://asianews.it/news-en/Turkey-sends-4,000-Syrian-ISIS-mercenaries-to-fight-against-the-
Armenians-(VIDEO)-51151.html
211 ArmenPress, “$100 dollars for each beheaded infidel: Shocking testimony of detained
Syrian mercenary in Artsakh”, 1 November 2020, retrieved from
https://armenpress.am/eng/news/1033500/$100-dollars-for-each-beheaded-infidel-shockingtestimony-
of-detained-syrian-mercenary-in-artsakh.html
212 “Azerbaijan is one of only three countries—along with North Korea and Syria—that
declares itself a “constitutional republic,” but transfers power by inheritance within a ruling
family. Ilham Aliyev has effectively elected himself president four times since 2003 and
appointed his wife as First Vice President, just to be extra secure.” See The National
Interest, “Recognizing Artsakh’s Independence Will Stop Turkey and Azerbaijan’s War on
Armenians”, 2 November 2020, retrieved from
https://nationalinterest.org/blog/buzz/recognizing-artsakh%E2%80%99s-independence-willstop-
turkey-and-azerbaijan%E2%80%99s-war-armenians-171824
213 Human Rights Watch, “Azerbaijan: Crackdown on Critics Amid Pandemic”, 16 April 2020,
retrieved from https://www.hrw.org/news/2020/04/16/azerbaijan-crackdown-critics-amidpandemic;
Human Rights Watch, “Azerbaijan: Relentless Crackdown on Opposition”, 19
April 2020, retrieved from https://www.hrw.org/news/2020/08/19/azerbaijan-relentlesscrackdown-
opposition
214 Parliamentary Assembly of the Council of Europe, “Stop jailing journalists: Turkey and
Azerbaijan must uphold Council of Europe standards”, 22 May 2020, retrieved from
https://pace.coe.int/en/news/7899/stop-jailing-journalists-turkey-and-azerbaijan-must-upholdcouncil-
of-europe-standards-
215 Freedom House, “Freedom on the Net 2020. Azerbaijan”, retrieved from
https://freedomhouse.org/country/azerbaijan/freedom-net/2020
44
countries),216 known for its endemic corruption217 and heavily suppressing its
citizens’ political rights and civil liberties.218
74. Even under the current cease-fire, the status quo cannot ensure future
safety or peace in the region. Azerbaijan has made no secret of its intent to
seize control of Artsakh, representing a real risk of a repeated ethnic
cleansing campaign of Armenians.219 This risk is heightened in light of the
fact that, pursuant to the Ceasefire Statement, Azerbaijan now retains
control over portions of Artsakh, as well as the strategic city of Shushi, which
overlooks Artsakh’s capital, Stepanakert. In light of the above, it is illusory to
state that, absent recognition of its independence, the safety of the Armenian
population of Artsakh can be guaranteed.
V. Conclusion
75. The indigenous Armenians of Artsakh remain extremely vulnerable
due to the current humanitarian crisis and the lack of final status for
Artsakh. Since the full-scale and unprovoked offensive by Azerbaijan against
the people of Artsakh began on 27 September 2020, thousands of Armenian
men, women, children, and elderly persons have been killed or seriously
injured, and more than 130,000 have been displaced from their homes. Cities
and their residential areas have been deliberately bombarded, destroying
hospitals, schools, homes, and critical civilian infrastructure. Azerbaijan and
its Turkish sponsors have deployed jihadist militants from Syria as a
mercenary fighting force. Azerbaijan, emboldened by the international
community’s silence at the height of a global pandemic, continued its
belligerence against the people of Artsakh for 44 days.
76. The Ceasefire Statement of 10 November 2020 does not change the
dangerously fragile situation of the Armenians of Artsakh. Rather, the
Ceasefire Statement omits the final status of Artsakh as a subject of ongoing
dialogue and grants Turkey, a central player of Azerbaijan’s war of
aggression, a large role of “monitoring” the ceasefire. What is more, even in
historically Armenian towns and villages that have passed under Azerbaijani
control, in compliance with the terms of the Ceasefire Agreement, all
216 Reporters Without Borders, “Azerbaijan. Hope quickly dashed”, retrieved from
https://rsf.org/en/azerbaijan
217 Transparency International, “Azerbaijan. Corruption Perceptions Index”, retrieved from
https://www.transparency.org/en/countries/azerbaijan
218 Azerbaijan scores 10/100 by the organization Freedom House, which qualifies the country
as “Not Free” See Freedom House, “Freedom in the World 2020. Azerbaijan”, retrieved from
https://freedomhouse.org/country/azerbaijan/freedom-world/2020
219 President Aliyev took to Twitter to proclaim, with regards to the Ceasefire Statement,
that “There is no issue of Nagorno-Karabakh’s status in this statement” and that “The
phrase “Karabakh is Azerbaijan!” is a Symbol of our Victory!”, 9 November 2020, retrieved
from https://twitter.com/presidentaz/status/1325961471445127169 and


45
remaining ethnic Armenians were simply expected to evacuate, as their
gruesome fate under Azerbaijani rule was deemed by all parties as a foregone
conclusion. The Azerbaijani government thus flippantly admitted what
Armenians had long viewed as an obvious truth: no Armenians are expected
to live in any part of Artsakh under Azerbaijani authority.
77. Throughout history, the people of Artsakh have continuously,
democratically and unequivocally expressed their will for self-determination
and independence. Azerbaijan, in turn, has repeatedly failed to recognize any
such right and consistently resorted to murderous violence to quell dissent
and fuel Armenophobia. President Aliyev’s most recent declarations show
that Azerbaijan has no plans of accepting any independent status for Artsakh
in the future. Coupled with its history of persecution towards Armenians and
other minorities, and state-sponsored Armenophobia, Azerbaijan’s dangerous
and aggressive state policy put the very existence of the ethnic Armenians of
Artsakh at grave risk. Azerbaijan, in short, has set its sights on the territory
of Artsakh, devoid of its inhabitants. In these circumstances, Artsakh’s right
to remedial secession/recognition is not only clearly justified; it is also
essential to its survival.
78. There is now a greater need than ever for Western intervention to
achieve a balanced and lasting resolution that preserves the people of
Artsakh’s right to self-determination and prevents further bloodshed in the
region. To be clear, the Armenian presence in Artsakh is today more
vulnerable, and its fate more endangered, than at any other time in the last
hundred years. Considering that all other avenues of negotiation have been
exhausted, the OSCE Minsk Process having led to no lasting peaceful
outcome, it is now Canada’s duty, along with the rest of the international
community, to intervene and address this injustice. There cannot be
neutrality when international law is being violated and peace and security
are being destabilized.
79. Canada, renowned for its historic and deep attachment to human
rights, and as a pioneer in the development of the law on unilateral secession
and right to self-determination, is in a unique position to take a leadership
role and contribute to resolving the issues at the core of the conflict. Under
the R2P doctrine, Canada’s moral and legal obligations to prevent atrocities
against the Armenians of Artsakh have been triggered. Further, by virtue of
Canada’s provision of permits for the export of drone technology to Turkey,
which was used by Azerbaijan to commit atrocity crimes against Armenians,
Canada has an added obligation to act.
80. As an immediate remedial measure, Canada must recognize the
independence of Artsakh and call on all other States to do the same.
Remedial recognition is the most effective diplomatic measure to ensure a
definitive and sustainable resolution to the conflict and prevent further
atrocities including the risk of genocide.
46
81. For all foregoing reasons, it is submitted that Canada must:
1. recognize the independence of the Republic of Artsakh and call on all
other States to follow suit;
2. condemn the joint Azerbaijani-Turkish aggression and atrocity crimes
against the people of Artsakh;
3. request the UN Security Council to refer Azerbaijan and Turkey to the
International Criminal Court, and/or call on the UN Secretary-General
and High Commissioner for Human Rights to establish a commission
of inquiry, fact finding mission, or other appropriate investigative
mechanism to ascertain the truth of, and promote justice and
accountability for, the crimes committed since 27 September 2020;
4. permanently uphold the suspension of arms exports to Turkey in light
of the irrefutable evidence that is now publicly available, and impose
further sanctions on persons responsible in Azerbaijan and Turkey for
the violence, atrocity crimes, and use of jihadist mercenaries in
Artsakh, especially against President Ilham Aliyev, his family
members, and other key figures in the Azerbaijani offensive; and
5. provide immediate and robust humanitarian aid to the civilian
population of Artsakh.
47
ANNEX
Map of Artsakh post-Ceasefire Statement220
220 Retrieved from https://www.rferl.org/a/macron-france-ready-lasting-solution-karabakhconflict/
30946318.html

INTERNATIONAL LAW AND THE CRITERIA FOR STATEHOOD

<arno.uvt.nl/show.cgi?fid=121942>.
Thesis writer: Ali Zounuzy Zadeh Administration number: s288571 Thesis supervisor: mr. Stefanie Jansen (Promovenda)
The Sustainability of the Declaratory and Constitutive Theories as the Method for Assessing the Creation and Continued Existence of States
Tilburg University
Faculty of Law
Department of International and European Law
LL.M Thesis Public International Law
International Law and the Criteria for Statehood:
The Sustainability of the Declaratory and Constitutive Theories as the Method for Assessing the Creation and Continued Existence of States
Student: Ali Zounuzy Zadeh
Administration number: s288571
Exam Committee
Thesis supervisor: mr. Stefanie Jansen (Promovenda)
Second examiner: mr. S.J. Rombouts
Table of Contents
Table of Contents
Abbreviations
Introduction ……………………………………………………………………………………………………… 1
Research Goal ………………………………………………………………………………………………… 5
Central Research Question ……………………………………………………………………………….. 5
Sub-questions …………………………………………………………………………………………………. 5
Theoretical Framework ……………………………………………………………………………………. 6
Methods of Research ………………………………………………………………………………………. 7
Scientific and Social Relevance of the Research Topic………………………………………… 7
1. The Notion of Statehood in International Law ………………………………………………… 9
1.1 General Observations …………………………………………………………………………………. 9
1.2 The Emergence of the State as a Defined Territorial Entity …………………………… 10
2. International Law and the Criteria for Statehood …………………………………………. 17
2.1 Definition ……………………………………………………………………………………………….. 17
2.2 The Montevideo Criteria …………………………………………………………………………… 19
2.2.1 Defined Territory……………………………………………………………………………….. 19
2.2.2 Permanent Population ………………………………………………………………………… 22
2.2.3 Government ………………………………………………………………………………………. 22
2.2.3.1. Effectiveness …………………………………………………………………………………. 23
2.2.3.2 Independence ………………………………………………………………………………….. 26
2.2.4 Democratically Legitimated Authority …………………………………………………. 31
2.2.4 Capacity to Enter into Relations with Other States ……………………………………. 32
3. Statehood and Recognition: The Declaratory v. Constitutive Theory …………….. 34
3.2 Recognition of Governments …………………………………………………………………….. 39
4. Ambiguities Relating to the Application of the Declaratory and Constitutive Theories ………………………………………………………………………………………………………….. 41
4.1 The Case of Somalia and Somaliland …………………………………………………………. 41
4.2 Possible Explanations ………………………………………………………………………………. 48
Conclusions …………………………………………………………………………………………………….. 52
Bibliography ……………………………………………………………………………………………………. 57
Table of Cases …………………………………………………………………………………………………. 60
Abbreviations
AU African Union
CSRC Crisis States Research Centre
DDR Deutsche Demokratische Republik
EC European Community
EPC European Political Co-operation
EU European Union
FSI Failed State Index
FFP Fund for Peace
GA General Assembly
ICJ International Court of Justice
ILC International Law Commission
NGO Non-Governmental Organization
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
TFG Transitional Federal Government
UN United Nations
US United States
USSR Union of Soviet Socialist Republics
1
Introduction
When looking at the map of the world it appears as if almost the whole world is neatly divided into separate parts, with each part representing a defined territorial entity, known as a State. But under this neatly divided surface, a closer examination reveals that the concept of „statehood‟ is shrouded in many ambiguities. For example, what makes a State, a State?
For over a century there has been a great debate between the „declarative‟ and „constitutive‟ schools of thought on statehood.1 According to the „declaratory‟ theory a State should possess the following qualifications: (a) a defined territory; (b) a permanent population and (c) a government. These criteria are provided by art. 1 of the Montevideo Convention on the Rights and Duties of States of 1933 (Montevideo Convention). Art. 3 of the Montevideo Convention declares that statehood is independent of recognition by other states. The declaratory theory prescribes that recognition of a State by existing States is nothing more than expressing the willingness to enter into relations with that State: in other words, accepting the existing conditions of statehood. The declaratory theory appears to be consistent with the current practice of
1 Talmon, 2004, p. 101.
2
recognition, which is primarily used as a political tool by States.2
In contrast, according to the „constitutive‟ theory, a State only becomes a State by virtue of recognition by the other States. Once the three factual criteria of the declaratory theory have been met, this „factuality‟ must then be confirmed by the existing States. This doctrine has proved untenable in practice, as there is no international body with the authority to acknowledge the existence of States on behalf of the entire community of States. Therefore, each State may individually decide whether a new State has come into being (and recognize it). If the constitutive theory would serve as the basis for statehood, it would lead to the strange consequence that an entity would be considered a State by some States (those that have recognized it) and not a State by other States (those that have not recognized it).34 Consequently, the question arises what the status of such a territorial entity is under international law, and – by extension – how it should be treated by the other members of the international community: is such an entity entitled to any form of sovereignty for example? In addition, there is no international obligation for States to recognize a territorial entity as a State once it fulfills the factual criteria for statehood: recognition often relies on many other considerations besides legal ones.
Apart from recognition, there are other issues relating to the factual criteria for statehood. As mentioned above, a government is an essential (factual) requirement for statehood. This government must be capable of exercising effective authority over the territory and its population.5 However, as it currently stands under international law,
2 The DDR for example, was established in 1949, but it would take until the 1970s before it was recognized by Western States. This does not mean however that the DDR lacked the properties for statehood before it was recognised. It would otherwise not be possible for a non-recognized State to violate any international obligations towards the non-recognizing States. However, state practice demonstrates that an unrecognised State is also bound by international law: for example most Arab States do not recognize Israel, but they regularly blame Israel for non-compliance with its international obligations. Another example is when the US ship, the Pueblo, was attacked by North Korea in 1968, the United States claimed that North Korea was liable, without recognizing it. For more information, see: Kooijmans 2002, p. 24-25.
3 Koojimans 2002, p. 2.
4 Also, in practice, States rely on many other considerations than mere factual ones when it comes to State recognition.
5 Crawford 1977, p. 116-119.
3
once a State has been formed, there are very few rules governing its end (short of dissolution, or merger with another State).6 Even if internal unrest or civil war leads to lasting anarchy and the de facto collapse of a State – arguably as in the case of Somalia or Sierra Leone – State practice has not resulted in the „denial‟ or the „de-recognition‟ of statehood.7
Somalia for example, was ranked number one for a third consecutive year by the Failed State Index (FSI):8 scoring 114.3 points out of a total of 120 points.9 Somalia‟s officially recognized government, the Transitional Federal Government (TFG), which is backed by the United Nations (UN), the United States (US) and the African Union (AU) controls only a relatively small percentage of Somalia. Within Somalia several de facto independent territories can be found, with the most notable being Somaliland, located in the north of Somalia.
Based on the criteria for statehood, Somaliland may be regarded as a State: there is a territory (albeit with disputed borders), with a population and a government exercising effective control over its territory. Whether or not Somaliland is recognized by any other State is irrelevant: an entity’s statehood is independent of its recognition by other States, according to the declaratory theory of statehood. A State – in this case Somaliland – must therefore first exist before other States may decide to establish ties with it. As
6 Hobach, Lefeber & Ribbelink 2007, p. 161.
7 Kooijmans 2002, p. 21.
8 The Failed State Index (FSI) is an annual index published since 2005 by the United States think-tank Fund for Peace and the magazine Foreign Policy. The FSI only includes recognized sovereign States determined by membership in the United Nations (UN). Consequently, a number of territories whose status is not final are excluded until their political status and UN membership is ratified. These include Taiwan, the Palestinian Territories, Northern Cyprus, Kosovo, and Western Sahara (even though some territories may be recognized as sovereign States by existing States). Excluded are also some States for which there is insufficient data. The ranking of the States is based on the total scores of the 12 indicators. For each indicator, the ratings are placed on a scale of 0 to 10, with 0 being the lowest intensity (most stable) and 10 being the highest intensity (least stable). The total score is the sum of the 12 indicators and is on a scale of 0-120. For more information – such as the methodology used to calculate the scores– can be found on the Fund for Peace website: http://www.fundforpeace.org/global/?q=fsi-faq
9 The Fund for Peace, ‘Failed States Index’, The Fund For Peace 2010. <http://www.fundforpeace.org/web/index.php?option=com_content&task=view&id=99&Itemid=140>
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mentioned earlier however, there is no obligation under international law for States to recognize an entity as a State, once it meets the factual criteria for statehood. At the same time however, it seems that a State cannot exercise its full legal rights under international law without recognition by other States. An example of this is membership of the UN. Art. 4 of the United Nations Charter (UN Charter) prescribes:
1. Membership in the United Nations is open to all (…) States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
2. The admission of any such State to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. [emphasis added] Yet, it is Somalia that is a member of the UN and not Somaliland. In addition, Somaliland may not become a member of the United Nations while it is unrecognized by other States. In contrast, Somalia remains to be recognized as a sovereign State by the international community of States, despite failing to meet the factual requirement of effective control: it exists de jure as it were.
This raises questions about the nature of statehood and how it is achieved. Some authors have contended that the violation of fundamental norms of international law, such as the annexation of existing States, or the creation of States by military force, might prevent the creation of a State.10 Or that the right to territorial integrity of an existing State might have priority over the right to external self-determination of peoples (possibly after the period of decolonization).11 Assuming that these norms are applicable within the context of statehood, the above arguments reach beyond the generally accepted criteria of the declaratory and constitutive theories. In addition, they only address the situation of the „new‟ State and not that of the parent State Somalia, which remains de facto collapsed. Rather than meeting the factual criteria for statehood, Somalia’s continued existence seems to depend on its recognition by other States.
Although the case of Somalia and Somaliland is merely one example among many,12
10 Dugard 1987, p. 135.
11 Kooijmans 2002, p. 20-24.
12 Other examples include Kosovo (Serbia), Northern – Cyprus (Cyprus), South – Abkhazia (Georgia),
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the above suggests that the generally accepted criteria for statehood are an incomplete system of law, as neither the declaratory, nor constitutive theory of recognition seems to satisfactorily explain the objective legal situation of States in international law.
Research Goal
I want to examine the criteria for statehood according the declaratory and constitutive theories of statehood, because I want to find out to what extent these theories are sustainable as the method for determining whether a territorial entity has become a State under international law, in order to determine whether these theories satisfactorily explain the objective legal situation of States in international law. The scientific and social relevance of the research will be discussed in the last paragraph.
Central Research Question
To what extent are the declaratory and constitutive theories of statehood sustainable as the method for determining whether a territorial entity has reached statehood under international law?
Sub-questions
 What are the generally accepted criteria for statehood according to the constitutive and declaratory theories?
 What issues arise when these criteria are applied in practice?
 How do the constitutive and declaratory theories attempt to address these issues?
 Based on the above, do the declaratory, or constitutive theories of statehood satisfactorily explain the objective legal situation of States in international law?
In order to answer the main research question, the research will be divided into four Sections. The first Section is a general introduction to the concept of „statehood‟ and is
Taiwan (China), Moldova (Transnistria), Katanga (Congo), Biafra (Nigeria), Anjouan (Comors) and numerous others. For more information see: Caspersen & Stansfield 2011.
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meant to provide background information on issues that are necessary for a thorough understanding of the thesis. The main purpose will be to describe the general legal framework and underlying theoretical premises regarding statehood. This Section addresses the historical development of the State, the distinction between State and government and the way in which international law regards the relationship between the State on the one hand and its territory and its population on the other hand. The three traditional elements of the State, as generally accepted in contemporary international law (territory, population and government) will be discussed in the second Section, whereby special attention will be given to the requirement of effective authority, also known as the „principle of effectiveness.‟ The third Section addresses the notion of State recognition and how it relates to statehood, according to the declaratory and constitutive theories. The fourth and final Section examines the issues that arise when the theory of statehood is applied in practice and how the criteria for statehood attempt to address these issues. In this part the relationship between the factual criteria for statehood and recognition will be examined closely. A comparison will be made between „de facto States‟ (territorial entities that fulfill the factual criteria for statehood, but remain unrecognized by other States) and „de jure States‟ (territorial entities that are recognized as States by the international community, but who do not fulfill the criteria for statehood). Special emphasis will be given to the factual requirement of effective control and the interplay between recognition and statehood. This Section will also evaluate whether the declaratory and constitutive theories can satisfactorily explain the objective legal situation of States in international law.
Theoretical Framework
The theoretical framework for the research consists of several „layers‟. The primary focus will be on positive law (for example, cases dealt with by the International Court of Justice) and legal doctrine. This will be essential during every part of the research. The positive law will be particularly important when dealing with established law and the interpretation of legal concepts, while the legal doctrine can help provide the necessary definitions and legal framework. In addition, by analyzing the arguments of scholars and international courts, the contemporary status of the debate on the criteria
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for statehood can be determined.
General principles of law and legal theory will be most valuable as a guideline when dealing with issues that are not well worked out, or normative issues, such as the evaluation of legal concepts related to the criteria for statehood.
Theories from other academic disciplines might be used in limited quantity, namely in relation to international relations, due to the inherent interplay between international law (particularly statehood) and politics.
Methods of Research
This thesis will be based on doctrinal research, whereby the following research methods will be used:
 Literature review is used throughout the research.
 Theoretical research is used to analyze, extrapolate, (re)construct, and compare the information gathered from the literature review.
 (Limited) empirical research methods (from secondary sources) are used to help clarify the factual circumstances surrounding (putative) States and other territorial entities.
Scientific and Social Relevance of the Research Topic
Although the notion of statehood occupies a central place in international law, it is in many regards shrouded in ambiguities. At the same time, it is likely that the subject of statehood will gain increasing importance under the influence of globalization and the changing nature of threats (the so called “new threats” such as terrorism, and its associated factors). What is for example the status of these unrecognized territorial entities and do they interact with the international system of sovereign States? Ambiguities in the theory of statehood can be exploited to deny States their rights or serve as justifications for intervention. Where States are involved, no member of the international community is guaranteed to remain „untouched‟ (be it for better, or for worse).
From a scientific perspective this thesis is relevant because the research focuses on a
8
legal concept that poses many outstanding questions. Research can shed some light on many of these unanswered questions and add knowledge to the body of legal doctrine. This in turn can be used by lawyers and scholars who have to deal with this subject.
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1. The Notion of Statehood in International Law
1.1 General Observations
Some writers have suggested that the concept of statehood does not have a separate place in international law, or have even come close to denying the existence of statehood as a legal concept altogether. While these views might contribute to view the State in non-absolutist terms, they are difficult to match with the extensive reliance on the concept in international „constitutional‟ documents such as the United Nations Charter (UN Charter), or State practice.13 The separate position of the State is further underscored by the recognition of the existence of certain fundamental rights and obligations of States in international law. Werner notes that many of these fundamental rights and duties may be summarized in three principles closely related to the principles of liberty, equality and fraternity as those developed in the domestic sphere: the independence of States, the (sovereign) equality of States and the obligation of States to peacefully coexist.14 The independence and equality of States includes for example, the right of States to choose their own constitution, to exercise (exclusive) jurisdiction over their territory and if necessary, to defend the State against an armed attack. The obligation of peaceful coexistence implies, among other things, that States have the duty to refrain from intervention in the (internal or external) affairs of other States, from using their territory (or allowing it to be used) for activities that violate the rights of other States, or form a threat to international peace and security, and to comply with obligations imposed on them by international law in accordance with the principle of good faith. The last requirement implies, for example, that States are obliged to respect human rights on their territory.15
Similarly, Crawford observes that States possess certain exclusive and general legal characteristics, which he divides into five principles that „[c]onstitute in legal terms the hard core of the concept of statehood, the essence of the special position in customary international law of States.‟16
13 Crawford 1977, p. 94-95.
14 Hobach, Lefeber & Ribbelink 2007, p. 160.
15 Hobach, Lefeber & Ribbelink 2007, p. 160.
16 Crawford 1977, p. 108 – 109.
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1. In principle States have full competence to perform acts in the international sphere, such as entering into treaties. This is one meaning of the term „sovereign‟ as applied to states, which will be discussed in more detail in the next paragraph.
2. In principle States are exclusively competent with regard to their internal affairs: a principle that is underscored by art. 2, paragraph 7 of the UN Charter. While this does mean that States have the authority or legal capacity to act in all matters, in international law, regarding those affairs, it does mean that their jurisdiction is prima facie both complete and not subject to the control of other States.
3. In principle States cannot be compelled to take part in international processes, settlements, or jurisdiction unless they consent to such exercise (either in general cases or specifically).
4. States are considered „equal‟ in international law. A principle also recognized by art. 2 paragraph 1 of the UN Charter. This is to some extent a confirmation of the above-mentioned principles, but it may have certain other consequences. Crawford states that „[i]t is a formal, not a moral or political, principle. It does not mean, for example, that all States are entitled to an equal vote in international organizations, merely that, in any international organization not based on equality, the consent of all the members to the derogation from equality is required.‟
5. Finally, it is only possible to derogate from these principles if it has been clearly established. In case of doubt or disagreement an international tribunal or court will have to resolve disputes relating to the (external or internal) freedom of action of States, or as not having consented to a specific exercise of international jurisdiction, or to a particular derogation from equality.
1.2 The Emergence of the State as a Defined Territorial Entity
One of the defining characteristics of the contemporary (sovereign) State is its territoriality. The State is the highest authority within a given territory: outside that territory the State, is obliged to respect the principle of non-intervention in its relations
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with other States.17 The concept of the State as a territorially bounded unit finds her origins in the 16th and 17th centuries18 when in Western-Europe, it replaced the dominant form of political organization of the Medieval order, known as the „Respublica Christiana’. The Respublica Christiana was the central notion of unity and universality: all members of the (Christian) community were united under the authority of the Emperor and Pope. Simultaneously, on the local level, there existed a complex feudal system wherein the rights and obligations between lord and vassal occupied a central place. The universalism of the Respublica Christiana and the diversity of feudalism were gradually replaced by a system of territorially defined entities, with a relatively high degree of internal centralized authority.19 The term sovereign originates from the Latin „suprema potestas‟, which translates into „highest authority‟ or „highest power‟ indicating that the State is the highest body of authority, not inferring its powers from other earthly bodies such as, for example the Pope or Emperor, as had been the case during the Respublica Christiana.20
The transition from the Respublica Christiana to the contemporary system of States was a gradual process, but in general, 1648 is regarded as the year that the transition to the modern State system was formalized.21 In that year delegations from the main political powers in Europe gathered in the cities of Münster and Osnabrück to sign a series of peace treaties that would finalize the Peace of Westphalia. The treaties concluded in Münster and Osnabrück put an end to the religious wars that had swept through Europe since the Reformation and initiated a new system of political order in central Europe, based upon the concept of a sovereign State governed by a sovereign: a system which would later be referred to as „Westphalian sovereignty‟. The Peace of Westphalia formalized a number of important principles that currently underlie the basis of modern international relations and international law. In addition to the principle of the sovereignty, these include the principle of (legal) equality between States and the principle of non-intervention in the internal affairs of another State.22
17 Hobach, Lefeber & Ribbelink 2007, p. 161.
18 Koojimans 2002, p. 2.
19 Hobach, Lefeber & Ribbelink 2007, p. 161.
20 Koojimans 2002, p. 2.
21 Koojimans 2002, p. 2.
22 Birdsall, 2009, p. 40-41.
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The importance of territoriality further increased with the invention of cartography in the late 17th century.23 With the aid of cartography States were able to establish the borders of the different territories with much greater precision. Within these borders the power of the State steadily increased. This led to, among other things, an increase in bureaucracy, an improved ability to register and monitor the population, and a rise in the number of tasks performed by the State.24 One of the most striking examples of the increased power of the State is the extent to which it succeeded in centralizing the use of force. This is an important reason why many historians and sociologists have attempted to define the State in terms of centralization of (legitimate) violence.25 This centralization manifested itself internally, through the creation of national police forces and a drastic increase in the number of prisons during the late 18th and early 19th centuries. Externally, it manifested itself through the definition of war as being an exclusive affair of the State, in which a (three-way) separation was made between a government which is regarded to set out the policy of the State, armies that are supposed to fight in the interest of the State and a civilian population which is expected to be spared from the horrors of war.26 War became an „institution of international law‟ and an accepted and routine method of conducting everyday international business between States.27 Vattel observed for instance in his book „Le droit des gens‟ (1758),28 that going to war was the prerogative of rulers who act on behalf of their States and that individuals are obliged not to interfere in the wars of States.29 Similarly, Neff states that „[w]ar was […] forthrightly seen as an instrument for the advancement of rival national interests.‟30
It would be wrong however to view the State merely in terms of a centralized
23 Hobach, Lefeber & Ribbelink 2007, p. 162.
24 Hobach, Lefeber & Ribbelink 2007, p. 162.
25 Hobach, Lefeber & Ribbelink 2007, p. 162.
26 Hobach, Lefeber & Ribbelink 2007, p. 162.
27 Neff 2005, p. 85
28 Emer de Vattel, Le droit des gens, ou Principes de la loi naturelle, appliqués à la conduite et aux affaires des Nations et des Souverains (Londres, 1758). 2 vols.
< http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1858&Itemid=27 >
29 Hobach, Lefeber & Ribbelink 2007, p. 162.
30 Neff 2005, p. 85
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authority, exercised within a defined territory.31 As will be explained, there is another element to territoriality. Characteristic of the modern State is not only its territoriality, but also the fact that it is itself regarded as an abstract person or order.32 This person or order cannot be equated with either the rulers (for example the monarch or government) or the subjects or citizens of the State. The State is an abstract order which includes both the rulers and those who are ruled, but it cannot be equated with either group.33 The idea of the State as an independent abstract individual or order was developed by the political philosophy of Thomas Hobbes (1588-1679). Hobbes, identified the State as an „artificial man‟, which should be distinguished from the government (who is expected to speak on behalf of the state) and the people (who may expect protection from the State and in turn, owe obedience to it).34
The notion of the State as an abstract person also serves as the basis for the distinction between the concepts „State‟ and „government‟ in international law. A single State can experience changes in its constitution or government. Even an unconstitutional or violent change of government, does not – in principle – affect the legal personality and the continuity of the State.35 Examples include Chile which underwent a bloody coup by Pinochet in 1973 and the survival of Romania after the forceful expulsion of Ceausescu regime in 1989. Even revolutions, such as the Russian revolution of 1917 or the Iranian revolution of 1979, which gave rise to in an entirely different system of government and a renaming of the name of the State, left the personality of the States intact. The State as an abstract (legal) person continues to endure even if the central government has completely collapsed due to internal unrest, such as a civil war. After the fall of Barre‟s regime in 1991, Somalia underwent an internal armed conflict between warring clans, which resulted to the complete collapse of Somalia‟s central government. Nevertheless, the international legal personality of Somalia as a State remained intact. Likewise, Lebanon underwent a civil war that ravaged the country between 1975 and 1990, without having its statehood affected.36
31 Hobach, Lefeber & Ribbelink 2007, p. 162.
32 Hobach, Lefeber & Ribbelink 2007, p. 162.
33 Hobach, Lefeber & Ribbelink 2007, p. 162.
34 Hobach, Lefeber & Ribbelink 2007, p. 162.
35 Hobach, Lefeber & Ribbelink 2007, p. 163.
36 Hobach, Lefeber & Ribbelink 2007, p. 163.
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The development of the notion of the State as an abstract person or order is also reflected by the different attempts that have been made over time to express the relationship between the State and its territory.37
The oldest approach, also known as the „Eigenthumstheorie „, „or property theory‟ considered the territory to be an object of the State‟s property.38 According to this theory, the State quite literally, possesses a territory. In other words, the property theory makes no distinction between the notions of „property‟ and „governance‟ (or politics): a distinction which is necessary to better understand the contemporary view on statehood.39 Partly under the influence of nationalism a second approach was developed, also known as the „Eigenschaftsstheorie‟, or „attribute theory‟. According to this theory, the territory is an attribute of the State.40 In other words, the State does not possess a territory, but it is its territory.41 Any damage to the territory of the State would constitute a violation of the person of the State itself. As such, the transfer of any part of the State‟s territory would amount to an amputation. Given the number of (often bloody) struggles that take place between States over – what often appears to be useless – fragments of territory offers the impression that at least some individuals (implicitly) still believe in the validity of the attribute theory.42
Contemporary international law approaches the relationship between the State and its elements (territory, people and government) differently however. Unlike the attribute theory, the contemporary approach makes a distinction between the State as an abstract order on the one hand and its elements on the other.43 This – currently dominant – theory, also referred to as the „Kompetenz theory‟, or „competence theory‟, was developed by the „Viennese School of Legal Theory‟, of which Hans Kelsen (1881-1973) is considered the most prominent representative. According to the Viennese School, the State should be thought of as a normative (legal) order, constrained by a territory and a
37 Hobach, Lefeber & Ribbelink 2007, p. 163-164.
38 Milano 2006, p. 67.
39 Hobach, Lefeber & Ribbelink 2007, p. 163.
40 Milano 2006, p. 67.
41 Hobach, Lefeber & Ribbelink 2007, p. 163.
42 Hobach, Lefeber & Ribbelink 2007, p. 163-164.
43 Hobach, Lefeber & Ribbelink 2007, p. 163.
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population.44 The territorial borders indicate the territory over which the State‟s legal order extends and thus defining the (legitimate) territorial scope of the State (excluding the possibility of extraterritorial jurisdiction as recognized in international law).45 Similarly the population of the State represents the (legitimate) „personal‟ scope of the State‟s legal order. Kelsen observed that the population of the State is nothing other than the group of people over which the State‟s legal order extends (with the exception of the option to exercise jurisdiction over non-nationals).46
In addition to a personal and territorial scope, the State also contains a „temporal scope‟: States arise (such as the numerous new States that were formed out of the decolonization process), States exist and States may cease to exist (as in the case of the United Arab Republic and Social Federal Republic of Yugoslavia).47 Werner notes, that the temporal component of the State is essential, because the criteria used to assess the emergence of States may differ to some extent from the criteria used to determine whether a State has ceased to exist. The requirement of effective and independent authority – which will be discussed in the next Section – typically occupies an essential role in answering the question whether a new State has come into existence.48 Nevertheless, the loss of effective and independent control in an existing State does not necessarily imply that the State has ceased to exist. The above examples of Lebanon and Somalia appear to indicate that a State without effective control is capable of maintaining its international legal personality. This is why Werner observes, that it is of great importance to separate questions relating to the creation of States from questions relating to the survival and the demise of States. 49 It must be added however, that the creation of States – at least in contemporary international law – is almost always is inextricably linked to the survival, or the demise of other States. Typically, the emergence of a new State is not possible without affecting the personality of an already existing State in some way.
44 Hobach, Lefeber & Ribbelink 2007, p. 163-164.
45 Hobach, Lefeber & Ribbelink 2007, p. 163-164.
46 Also referred to as the „nationality principle.‟ For more information, see: Hobach, Lefeber & Ribbelink 2007p. 163-164.
47 Hobach, Lefeber & Ribbelink 2007, p. 164.
48 Whether, and to the extent to which, this is true will be examined in the following Sections.
49 Hobach, Lefeber & Ribbelink 2007, p. 163-164.
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Based on the above it is clear that the concept of statehood has a clear and separate place in international law. Moreover, this concept has undergone numerous significant developments since its (formal) conception in 1648. These developments have ultimately given shape to the concept of statehood in international law as it is known today. The following Sections will examine the contemporary notion of statehood, its requirements, and what its (legal) implications are for the creation and continued existence of States.
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2. International Law and the Criteria for Statehood
2.1 Definition
Given the State‟s central role in international law and international relations, it would seem evident that a clear and codified definition of a State exists in international law, so to determine which entity may be considered a State. Since 1945, several attempts have been made to agree on such a definition. During the negotiations over the draft text on the Declaration on the Rights and Duties of States (1949), the Vienna Convention on the Law of Treaties (1956 and 1966) and the articles on Succession of States in respect of Treaties (1974), attempts were made to describe the concept of the State. None of these efforts succeeded however, as a codification of a definition of the State turned out to be too politically sensitive.50 Despite the lack of a clear definition of what constitutes a State, international law does provide some guidelines on how to approach the issue of statehood. For example, the existence of effective control – which will be examined in more detail in the next Section – is widely regarded as an important, perhaps even crucial, consideration in assessing the emergence of new States.51 The so-called „principle of effectiveness‟, came to replace the commonly accepted „policy of recognition‟ of the 19th century, which allowed existing States to authoritatively determine whether a (new) political community possessed sufficient „legitimacy‟ and „civilization‟ to join the existing community of sovereign (and self-proclaimed civilized) States. This subjective policy of recognition was replaced with a more objective, factual criterion: the existence of effective control over a given territory (also known as the „principle of effectiveness‟).52
The importance of effective control was underscored as early as 1929 by the arbitrator in the case of the Deutsche Continental Gas-Gesellschaft.53 The arbitrator stated that „[a] State does not exist unless it fulfills the conditions of possessing a territory, a people inhabiting that territory, and a public power which is exercised over
50 Hobach, Lefeber & Ribbelink 2007, p. 164.
51 Hobach, Lefeber & Ribbelink 2007, p. 165.
52 Hobach, Lefeber & Ribbelink 2007, p. 165.
53 Deutsche Continental Gas-Gesellschaft v. Polish State (1929), Annual Digest, 5 (1929-30) No. 5, at p. 14-15. Grant 1999, p. 36.
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the people and the territory.‟54
Likewise, the importance of the principle of effectiveness has long been recognized in legal doctrine. A brief summary of the importance of effective control for identifying a State is given by Shaw, who observes that „[t] he ultimate control and territory is the essence of a State.‟55 Similar formulations are found in older literature, among which special attention should be given to Jellinek’s „Drei Elementen Lehre‟, which affirms that a State consist of three essential elements: a government, a territory and a population. A codification of Jellinek‟s doctrine of the three elements can be found in the Montevideo Convention on the Rights and Duties of States of 1933 (Montevideo Convention). Art. l of the Montevideo Convention provides a description of the State as a subject of international law:
„The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) a government; and (d) capacity to enter info relations with the other States.‟ [emphasis added] The Montevideo Convention is a relatively old, inter-American convention, with few ratifications. Its description of the State however, is almost without exception considered the starting point for any discussion about the State as a subject of international possessing legal personality. Art. 1 of the Montevideo Convention, is by many regarded as „the most widely accepted formulation of the criteria of Statehood in international law.‟56 Grant notes that citing from the Montevideo Convention in discussions about the position of the State in international law has almost become a reflex.57
This Section is no exception in this regard. However, before the criteria for statehood are discussed in more detail, a number of points should be raised. First, the elements of the Montevideo Convention were primarily intended as criteria for assessing the creation of States and not as criteria for assessing the continuation of States.58 As
54 Hobach, Lefeber & Ribbelink 2007, p. 165.
55 Hobach, Lefeber & Ribbelink 2007, p. 166.
56 Hobach, Lefeber & Ribbelink 2007, p. 166.
57 Shaw, 2003, p. 178.
58 Hobach, Lefeber & Ribbelink 2007, p. 166.
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already mentioned in the previous Section, a State can continue to exist even if the criterion of the Montevideo Convention, the existence of an effective government, is (temporarily) lost. Secondly, it should be noted that the fourth criterion, the ability to enter into relations with other States, is generally not considered a prerequisite for the existence of a State. It is instead the other way around: if an entity meets the first three criteria (a territory, a population and a government) it can be considered a State and therefore has the ability to enter into relations with other States. In other words, the ability to enter into relations with other States, is seen as a consequence and not a prerequisite of being a State:59 a State cannot enter into a relations with other States if it does not exist.60
2.2 The Montevideo Criteria
2.2.1 Defined Territory
As discussed in the previous Section, the development of the State is closely linked to the ability to exercise effective control over a defined territory. This was already reflected by the principle of cuius region, euius religio and became more important with the increased technical capabilities of border demarcation, the increased centralization of power within the State and the rise of nationalism (which is referred to as the principle of cuius region, national euius).61 Given the strategic, economic and symbolic importance of territory, it is therefore not surprising that at the present time many territorial disputes and disputes over border demarcation still exist.
However, the existence of border disputes is not an obstacle to attaining statehood in international law. There is no rule stating that the boundaries of a State should be
59 Hobach, Lefeber & Ribbelink 2007, p. 166.
60 Whether the three generally accepted criteria of the Montevideo Convention can be regarded as sufficient and necessary conditions for statehood under all circumstances remains to be answered of course. As mentioned in the introduction, there are territorial entities that have not fully met the criteria for statehood and yet remain to be recognized as States by the international community, while entities that have met the three criteria remain unrecognized.
61 Hobach, Lefeber & Ribbelink 2007, p. 167 – 168.
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undisputed or unambiguously established.62 Israel for example, was admitted to the United Nations on 11 May 1949, despite its ongoing territorial disputes with the (predominantly) Arab States.63 When Jessup, the representative of the United States to the United Nations argued for Israel‟s admission, he discussed the requirement of territory in the following manner:64
„One does not find in the general classic treatment of this subject any insistence that the territory of a State must be exactly fixed by definite frontiers (…) The formulae in the classic treatises somewhat vary, (…) but both reason and history demonstrate that the concept of territory does not necessarily include precise delamination of the boundaries of that territory. The reason for the rule that one of the necessary attributes of a State is that it shall possess territory is that one cannot contemplate a State as a kind of disembodied spirit (…) [T]here must be some portion of the earth‟s surface which its people inhabit and over which its Government exercises authority. No one can deny that the State of Israel responds to this requirement (…)‟65
A German-Polish Mixed Arbitral Tribunal had previously confirmed the above rule in 1929 in the case of the Deutsche Continental Gas Gesellschaft:66
„Whatever may be the importance of the delamination of boundaries, one cannot go so far as to maintain that as long as this delamination has not been legally effected the State in question cannot be considered as having any territory whatever (…) In order to say that a State exists (…) it is enough that this territory has a sufficient consistency, even though its boundaries have not yet been accurately delaminated, and that the State actually exercises independent public authority over that territory.‟67
More recently in the North Seas Continental Shelf cases, the International Court of Justice (ICJ) confirmed that international law does not require that the boundaries of a
62 Hobach, Lefeber & Ribbelink 2007, p. 167 – 168.
63 Hobach, Lefeber & Ribbelink 2007, p. 168.
64 Crawford 1977, p. 112.
65 Security Council, Official Records, 383rd Meeting, 2 December 1948, p. 41.
66 Crawford 1977, p. 113.
67 Deutsche Continental Gas-Gesellschaft v. Polish State (1929), Annual Digest, 5 (1929-30) No. 5, at p. 14-15.
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State should be fully delaminated and defined:68
„The appurtenance of a given area, considered as an entity, in no way governs the precise delamination of its boundaries, any more than uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delaminated and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations.‟69
Crawford notes that in addition to claims relating to the borders of a State, it is possible to have claims relating to the entire territory of a new State. Claims relating to the entire territory of a State have often been brought up in the context of admission to the United Nations. Examples include Israel, Mauritania and Kuwait. However, the proposition that a State exists despite claims to the whole of its territory have not been challenged in these cases.70 Crawford further observes:
„In any event, customary international law prohibits the settlement of territorial disputes between States by the threat or use of force, and a State for the purpose of this rule means any entity established as a State in a given territory, whether or not that territory formerly belonged to or is claimed by another State.‟71
Subsequently, for a territorial entity to be protected by the above rule, it would first have to be a State, as the above rule only applies to the relations between States and not territorial entities in general.
With regard to the size of the territory it can be stated that no specific requirements exist: the international community of States consists of both „micro-States‟, such as Liechtenstein and San Marino and very large States such as Canada or Russia. This does not mean however that the existence of the so-called „micro-States‟ is free from practical complications. An example of this is partially reflected in the United Nations, which is, in principle, open to all States capable of complying with the obligations
68 Hobach, Lefeber & Ribbelink 2007, p. 168.
69 ICJ, Federal Republic of Germany v Denmark; Federal Republic of Germany v
Netherlands (1969), ICJ Reports 3 (Feb 20), Para. 3, p. 32.
70 Crawford 1977, p. 113.
71 Crawford 1977, p. 113.
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under the UN Charter. The proliferation of small States has led to a discussion about the status and powers of the so-called micro-States within the UN, where some for example have suggested, that the voting rights of small States in the General Assembly should be limited.72
2.2.2 Permanent Population
States are not only territorial entities, but they also consist of groups of individuals. Therefore, a permanent population is another necessary requirement for statehood. There are no criteria relating to the size of the population: Andorra with its 68,000 inhabitants is as much a State as India, which now has currently has well over one billion inhabitants. Neither does international law set any requirements about the nature of the population: the population may largely consist of nomads (such as in Somalia), it may be ethnically (relatively) homogeneous (such as in Iceland) or very diverse (such as in the former Soviet Union), it may be very poor (such as in Sierra Leone, where in 2000 nearly 70 percent of the population lived below the poverty line) or it may be very rich (as in many Western States).73
It should also be noted that the requirement of a permanent population does not relate to the nationality of a population: it merely requires that States have a permanent population. Neither does international law prescribe which person belongs to a State: States are free to determine to whom the nationality of the State is granted.74 In so far as relevant to this thesis, it is important to understand that nationality depends on statehood and not the reverse: that is, a State is able to give a certain nationality to a person, due to being a State.
2.2.3 Government
The existence of a permanent population on a given territory is in itself insufficient for
72 Hobach, Lefeber & Ribbelink 2007, p. 168.
73 Hobach, Lefeber & Ribbelink 2007, p. 168.
74 Hobach, Lefeber & Ribbelink 2007, p. 168.
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statehood. The third – and according to many final75 – requirement for statehood, is the existence of a government capable of exercising independent and effective authority over the population and the territory. The importance that is attached to the criteria of independence and effectiveness is understandable considering the predominantly decentralized nature of international law. Since international law lacks a central executive body, with the power to enforce compliance with international obligations, compliance with international obligations must often be guaranteed by the States themselves.76 A State must therefore be able to the effectively and independently exercise its authority within its borders.
2.2.3.1. Effectiveness
Questions regarding the creation of a new State often revolve around the criterion of effective authority. Crawford notes that „[T]he requirement that a putative State have an effective government might be regarded as central to its claim for statehood.‟77 The importance of effective authority is, among others evidenced by the Aaland Islands case.78 Finland had been an autonomous part of the Russian Empire from 1807. After the November Revolution of 1917 it declared its independence. During the first months after its declaration of independence, Finland‟s territory was subjected to a series of military actions and interventions. In the ensuing struggle between various domestic and foreign troops, it was unclear whether and by whom effective authority was being exercised in the newly declared State. It was not until after the defeat of Germany by the Triple Entente and the removal of Soviet troops from Finnish territory by Sweden that some degree of order was restored.79 The Commission of Jurists (the Commission), appointed by the Council of the League of Nations (the Council), was to report on certain aspects of the Aaland Islands dispute (the Aaland Islands were being claimed by both Finland and Sweden).80 In essence the Commission of Jurists was of the opinion
75 Koojimans 2002, p. 21.
76 Hobach, Lefeber & Ribbelink 2007, p. 169.
77 Crawford 1977, p. 116.
78 Hobach, Lefeber & Ribbelink 2007, p. 168.
79 Crawford 1977, p. 117-118.
80 The Aaland Islands Question (On Jurisdiction), Report of the International Committee of Jurists,
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that the legal status of Finland was unclear until the new government was able to effectively exert its authority over the territory:81
„[f]or a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution and anarchy, certain elements essential to the existence of a State, even some elements of fact, were lacking for a fairly considerable period. Political and social life was disorganized; the authorities were not strong enough to assert themselves, civil war was rife; further, the Diet, the legality of which had been disputed by a large section of the people, had been dispersed by the revolutionary party, and the Government had been chased from the capital and forcibly prevented from carrying out its duties; the armed camps and the police were divided into two opposing forces, and the Russian troops, and after a time Germans also, took part in the civil war (…) It is therefore difficult to say at what exact date the Finnish Republic, in the legal sense of the term, actually became a definitely constituted sovereign State. This certainly did not take place until a stable political organization had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops. It would appear that it was in May 1918, that the civil war was ended and that the foreign troops began to leave the country, so that from the time onwards it was possible do re-establish order and normal political and social life, little by little.‟82 [emphasis added] It should be noted that this position was later somewhat nuanced. After receiving the report of the Commission on the question of jurisdiction over the Islands, the Council appointed a second commission, known as the Commission of Rapporteurs (the Rapporteurs), to advise the League on the resolution of the dispute on the merits.83 The Rapporteurs disagreed with the Jurists on this point. Partially because of Soviet recognition of Finland, but more importantly, because of Finland‟s continuity of personality before and after 1917. Subsequently, the Rapporteurs applied rules relating to the restoration of law and order in Finland‟s territory, and to the legality of foreign support for that purpose, instead of the stricter rules relating to the creation of ab initio
League of Nations Official Journal, Special Supplement No. 3 (1920).
81 Crawford 1977, p. 117-118.
82 League of Nations Official Journal, Special Supplement No. 4 (1920), p. 8-9.
83 The Aaland Islands Question (On the Merits), Report by the Commission of Rapporteurs, League of Nations Council Document B7 21/68/106 (1921) (excerpted and reprinted).
25
of a stable government in a new State.84
The importance of effective authority is further evidenced in the Island of Palmas case.85 The arbiter, Max Huber, noted that while international law does recognize that States have exclusive jurisdiction on their territory, it does not dictate that States are entirely free in their conduct on their territory. Huber notes that the recognition of the right to exercise authority also implies that States are held to respect and effectively protect the rights of other States on their territory. This obligation can only be met if a State is truly capable of exercising effective authority on its territory:86
„Territorial sovereignty (…) involves the exclusive right to display the activities of a State. This right has a corollary duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and war, together with the rights each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to the circumstances, the State cannot fulfill this duty.‟87
Despite the above, in State practice the application of the principle of effectiveness seems to be considerably less strict. For instance, Bosnia-Herzegovina was recognized by the international community as a State and was authorized to join the United Nations during a period that large parts of its territory were not under effective control of the government. At that time, even the president had admitted that Bosnia-Herzegovina independence was not enforceable without foreign support.88 Similarly, during the process of decolonization, numerous entities achieved statehood and were admitted to the UN, while their governments lacked effective authority over the territory. Some authors have argued that in these instances the principle of effectiveness was weighed against the right to self-determination of the colonized peoples and the widely held
84 Crawford 1977, p.118.
85 Permanent Court of Arbitration, Netherlands v. United States of America (Island of Palmas Case), RIAA II, 829.
86 Hobach, Lefeber & Ribbelink 2007, p. 169.
87 Permanent Court of Arbitration, Netherlands v. United States of America (Island of Palmas Case), RIAA II, 829 at 839.
88 Hobach, Lefeber & Ribbelink 2007, p. 169.
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desire that former colonies could transform themselves into independent States.89 Congo for example, gained formal independence from Belgium during a period of severe internal armed conflicts. As a result of these conflicts, at one point in 1960, two separate groups were claiming to be the (official) representatives the new State in the General Assembly. Similarly, when Guinea-Bissau was admitted to the United Nations on 17 September 1974, the requirement of effective authority was not very strictly enforced. Guinea-Bissau was recognized as a State by a large portion of the international community, even though the new government lacked control over the majority of the population and the most important cities. A year earlier in 1973, the Dutch government had even spoken out against approval of Guinea-Bissau, as it had yet to fulfill the requirement of effective authority.90
2.2.3.2 Independence
In addition to the principle of effectiveness, the authority must be exercised independent of external interference. Independence is widely considered as one of the most important requirements for statehood. A number of authors regard independence in fact as the most important criterion for statehood.91
The landmark case on independence, is the Austro-German Customs Regime case, which involved the meaning of the term „independence‟ as laid down in art. 88 of the Treaty of Saint-Germain.92 Art. 88 intended to guarantee the continuation of Austria and its separation from Germany. The Permanent Court of International Justice was asked to give its advisory opinion on whether a proposed customs union between Germany and Austria was consistent with obligations of Austria under the Treaty of Sain-Germain and the Protocol of Geneva. The following definition given by Judge Anzelotti is often used
89 Hobach, Lefeber & Ribbelink 2007, p. 171.
90 Hobach, Lefeber & Ribbelink 2007, p. 171.
91 Crawford 2006, p. 62. It must also be noted that the requirement of independence of authority is not unanimously accepted as a necessary requirement for statehood. In this regard, Talmon notes: „[T]here are, however, several arguments against factual independence as an additional criterion for statehood.‟ One argument against factual independence as an additional criterion for Statehood for example is its vagueness. For more information see: Talmon 2004, p. 111-116.
92 Crawford 1977, p.120.
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as the standard definition of independence as the criterion of statehood:93
„[T]he independence of Austria within the meaning of Article 88 is nothing else but the existence of Austria, within the frontiers laid down by the Treaty of Saint-Germain, as a separate State and not subject to the authority of any other State or group of States. Independence as thus understood is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law. (…)
It follows that the legal conception of independence has nothing to do with a State‟s subordination to international law or with the numerous and constantly increasing states of de independence which characterize the relation of once country to other countries. It also follows that the restrictions upon a State‟s liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these restrictions do not place the State under legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be.‟94
The importance of independence was also made explicit in the Island of Palmas case. Huber notes with regard to the importance of the independence in international law:95
„Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centuries, and, as a corollary, the development of international law, have established this principle of exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.‟96
93 Crawford 1977, p.122.
94 Crawford observes that while this passage is often cited as a definition of independence, it is should be assessed within its specific context. As a general definition of independence as the criterion of statehood it is much too absolute: Crawford 1977, p. 122. This is also one of the reasons why Talmon states that one of the argument against factual independence as an additional criterion for Statehood is its vagueness. For more information, see: Talmon 2004, p. 111-116.
95 Hobach, Lefeber & Ribbelink 2007, p. 170.
96 The Island of Palmas Case (or Miangas), United States of America v. The Netherlands, Permanent Court of Arbitration, 4 April, 1928, p.39.
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Werner notes that the criterion of independence is primarily intended to indicate that States must possess so-called „constitutional independence‟: meaning that the State constitutes the highest legal order (excluding international law) and that it must also be able to protect this (formally independent) legal order.97 Alan James, defined constitutional independence as follows: „A territorial entity claiming sovereignty must (…) show that it is territorially defined, contains people, and governs them, and also that there is no other State which claims formal authority over it and is providing effective physical backing for that claim.‟98 This is also why parts of a federal State, such as California (United States) or North Rhine-Westphalia (Germany), are not considered to be States in international law. Even though they enjoy a territory, a population and effective authority, they lack constitutional independence. In contrast, the federal States to which they belong do possess independence and can therefore operate as a State under international law.
Moreover, independence must be both „formal‟ and „functional‟. Formal independence exists in cases where the powers to govern a territory are vested in the separate authorities of the State. This authority may stem from internal legislation or can be the result of a concession by the former sovereign State.99 Functional independence exists when a certain minimum level of (real) power is exercised by the authorities of the State.100 The two aspects, formal and functional independence, are not unrelated, although the exact relationship between formal and functional independence may be complex.101 For the purpose of this thesis, it is sufficient to note that formal independence without functional independence is not sufficient to conclude that the entity is independent in its actions.
In specific cases, different legal consequences may be attached to the lack of independence. If there is a complete lack of independence, the affected entity might not be internationally considered a State, but may be regarded as an indistinguishable part
97 Hobach, Lefeber & Ribbelink 2007, p. 170.
98 Hobach, Lefeber & Ribbelink 2007, p. 170.
99 Crawford 2006, p. 76.
100 Crawford 2006, p. 78.
101 For more information on the relationship between formal and functional independence, see: Crawford 1977, p. 134-139.
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of the dominant State. The granting of such „independence‟ may under certain circumstances, be considered legally null and void, or even an act favoring the grantor, by way of so-called „puppet States‟:102 a term that is used to describe nominal sovereigns that are de facto under foreign control.103 An entity might also be independent in some basic form, but „act in a specific matter under the control of another State so that the relationship becomes one of agency, and the responsibility of the latter State is attracted for illegal acts of the former.‟104
Nevertheless, even an extensive lack of independence may coexist with statehood as demonstrated by the case of Iran under Allied occupation from 1941 to 1946. In August 1941, Iran was occupied by British and Soviet forces to prevent fears of looming German control. Both parties underscored that the occupation of the country would be temporary and that they had no plans on Iranian sovereignty or territorial integrity. The occupation was followed by a change of government, in which Reza Shah Phalevi succeeded his father. The former was not considered a puppet government, and the change in government was widely recognized. The United States viewed the British and Russian occupation as necessary and justified, even though it expressed fears regarding the future independence of Iran. At the Teheran Conference, the three Allies reiterated „their desire for the maintenance of the independence, sovereignty and territorial integrity of Iran.‟ 105 Despite the inability of the Iranian government to actually control events in parts of its territory during the war, there was little justification for any view that Iran had in some way ceased to exist, under those circumstances.106
Crawford further notes that „the criterion of independence as the basic element of statehood in international law may operate differently in different qualifications for statehood, and as a criterion for its continued existence.‟107 For example, if a new State is formed through secession from an existing State, it will have to demonstrate considerable independence, both formal and functional, before it is considered to be
102 Crawford 1977, p.120.
103 Crawford 1977, p.130.
104 Crawford 1977, p.120.
105 Crawford 1977, p. 134.
106 For an extensive examination of situations that might derogate from actual or functional independence, see: Crawford 1977, p. 123-134.
107 Crawford 1977, p.120.
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definitively created. In contrast, international law protects the independence of an existing State against illegal invasion and annexation, so that it may continue to exist as a legal entity despite the lack of effectiveness. But in case a new State is formed through devolution (through a grant of power from the previous sovereign), considerations of pre-existing rights are less relevant and the independence is dealt with as a mostly formal requirement.108
It must be emphasized that the requirement of independence does not mean that governments are obliged to act completely independent from of all forms of foreign influence. States largely rely for their decisions on the actions and decisions of other States and international organizations. This does not mean however, that the State‟s sovereignty is in question.109 International law also permits States to freely handover a (considerable) portion of their formal powers to other States or international organizations (for example, the European Union). This was confirmed in the Wimbledon case110 in which the Permanent Court of International Justice declared that „[t]he right of entering international engagements is an attribute of State sovereignty.‟111 Also, whether the authority is exercised independently or with the help of others is immaterial, provided that the formal authority is exercised on behalf of the government.
In summary it may be said that the test of effective and independent authority is not always strictly applied and that the importance of effective authority seems to be sometimes weighed against other interests and values of the international community. Nevertheless, the absence of a coherent form of government in a given territory is to the detriment of that territory being a State: at least in the absence of other factors, such as the granting of independence to that territory by a former sovereign.112 Continuity of government in a territory is one factor determining the continuity of the affected State and prolonged absence of government will incline to the dissolution of the State.113
108 Crawford 1977, p.120.
109 Hobach, Lefeber & Ribbelink 2007, p. 170.
110 S.S. Wimbledon (U.K. v. Japan), 1923 P.C.I.J. (ser. A) No. 1 (Aug. 17)
111 Hobach, Lefeber & Ribbelink 2007, p. 170.
112 Crawford 1977, p.118.
113 Crawford 1977, p.118.
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2.2.4 Democratically Legitimated Authority
Some authors have also contended that customary international law supports the position that the „public authority‟ must be a „democratically legitimated.‟ James Fawcett was the first who introduced the criterion of democratic legitimacy.114 In response to the unilateral declaration of independence by the white minority regime in Southern Rhodesia, he wrote in 1966:115
„But to the traditional criteria for the recognition of a regime as a new State must now be added the requirement that it shall not be based upon a systematic denial in its territory of certain civil and political rights, including in particular the right of every citizen to participate in the government of his country, directly or through representatives elected by regular, equal and secret suffrage.‟116
Talmon notes that while Fawcett broadened the classic criterion of „public authority‟ to include „democratically legitimated public authority‟, he did not provide any ground for the new criterion except from pointing to art. 21, paras. 1 and 3, of the Universal Declaration of Human Rights117 and to two United Nations General Assembly resolutions.118 Fawcett stated that this „principle‟ was acknowledged in the case of Rhodesia by the almost unanimous condemnation of its unilateral declaration of independence by the international community and by the collective withholding of recognition of the new regime.119 In addition, he made reference to the „idea of self-determination‟, even though he himself regarded the notion to be „highly political.‟120
114 Talmon 2004, p. 121.
115 Talmon 2004, p. 121-122.
116 Talmon 2004, p. 121.
117 A/RES/217 (III) of 10 December 1948. Art. 21 provides: „(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives […] (3) The will of the people shall b the basis of the authority of government,: this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or equivalent free voting procedure.‟
118 A/RES/648 (VI) of 10 December 1952; A/RES/1514 (XV) of 14 December 1960. Talmon 2004, p. 121.
119 Talmon 2004, p. 121.
120 Talmon 2004, p. 121.
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At least two arguments can be made against this new criterion for statehood. First, customary international law does not give each citizen the right to influence public authority by way of periodic, equal, and secret elections. This is evidenced by the continued existence of a large number of undemocratic States.121 Secondly, to establish such a criterion for statehood in customary international law there must be a constant and uniform practice coupled with the required opinio juris: also this is missing.122 Quite a considerable number of the new States that were created in the 1960s and 1970s during the process of decolonization often did not meet the criterion of having a democratically legitimated public authority. Nevertheless, their statehood was never called into question. In 1975, the International Court of Justice held in its advisory opinion in the Western Sahara case, that „no rule of international law [. . .] requires the structure of the State to follow any particular pattern, as is evident from the diversity of the forms of State found in the world today.‟123 It should be noted, that in both the literature and in State practice a trend towards giving greater weight to the democratic legitimization of public authority may be detected. But the question of how public authority is organized is still irrelevant to the issue of statehood, as international law currently stands. As such, it would go too far to explain Rhodesia’s non-recognition in these terms.124
2.2.4 Capacity to Enter into Relations with Other States
The „capacity to enter into relations with States‟ is not the exclusive entitlement of States: autonomous national authorities, liberation movements and insurgents are all capable of maintaining relations with States and other subjects of international law.125 While States do possess that capacity, it is not a requirement, but a consequence of statehood. A consequence which is moreover irregular and dependent on the status and situation of a particular State. It can be said that the capacity to enter into full range of
121 Talmon 2004, p. 121-122.
122 Talmon 2004, p. 122.
123 ICJ 1975 Rep 12, p. 43-44, para. 94.
124 Talmon 2004, p. 122.
125 Crawford 1977, p. 119.
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international relations can be a valuable measure, but capacity or competence in this sense depends in part on the power of the government, without which as State cannot carry out its international obligations. The ability of the government to independently carry out its obligations and accept responsibility for them in turn greatly depends on the previously discussed requirements of effective government and independence.126 Moreover, a State cannot enter into relations with other States if it is not recognized. Consequently, it cannot be recognized as a State.
126 Crawford 1977, p. 119
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3. Statehood and Recognition: The Declaratory v. Constitutive Theory
The key question in the discussion about the legal effect of recognition is whether the formation (and continued existence) of a State is dependent or independent of recognition by the existing States: in other words, may a political entity be considered a State under international law, even if it is not recognized as such by the existing States?127 The so-called „constitutive theory of recognition‟ answer this question negatively. According to the constitutive theory, an entity may only become a State by virtue of recognition.128 Once the three previously mentioned factual (classic) criteria of a territory, a population and a government are met, this „factuality‟ must then be confirmed by the existing States, only then – after being „constituted‟- may it enjoy rights inherent in States under international law.129
This interpretation of recognition fits well within the 19th century positivist view of international law as a purely consensual system, where legal relations may only arise with the consent of those concerned.130 The positivist theory believed that the creation of a new State also created legal obligations for existing States. As such, the existing States either had to consent to the creation of the new State, or to its accession to
127 Hobach, Lefeber & Ribbelink 2007, p. 170.
128 The term ‘recognition’ can be used in at least two ways. First, a State may explicitly express its view with regard to the legal status of a certain political community. An example of such an explicit recognition is the recognition of Israel as a sovereign State by the United Kingdom. In April 1950 the government of the United Kingdom declared: “His Majesty’s Government have (…) decided to accord de jure recognition to the State of Israel.” Secondly, a State may indicate that it considers a community to be a State under international law, by entering into certain relations with that community (for example, by concluding a treaty with the State, by entering into diplomatic relationships, or by beginning a dispute settlement proceeding before the International Court of Justice). Such a form of recognition, is also called an implicit or tacit recognition. Whether entering into such relations may be considered the recognition of a particular political entity as a State under international law, must be inferred from the specific circumstances. Hobach, Lefeber & Ribbelink 2007, p. 177.
129 Hobach, Lefeber & Ribbelink 2007, p. 170.
130 Talmon 2004, p. 102.
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international law (and the international community). This form of recognition gave important consideration to matters like „the degree of civilization‟ (as measured by Western standards) and dynastic legitimacy.131
This approach of the State was gradually replaced by one which defined the State primarily as a „matter of fact‟ rather than a „matter of law‟. The State became to be viewed as an independent and defined unit of (centralized) authority, which exists independent of its recognition by other States. The notion that „recognition does not bring into legal existence a State which did not exist before‟ is known as the „declaratory theory of recognition.‟132
The declaratory theory prescribes that recognition of a State is nothing more than expressing the willingness to enter into relations with that State. In other words, an entity becomes a State for the reason that it meets all the international legal criteria for statehood and the recognizing State „merely establishes, confirms or provides evidence of the objective legal situation, that is, the existence of a State.‟133 Recognition is therefore retroactive and status-confirming. In contrast, the previously mentioned constitutive theory, views recognition as status-creating and non-recognition as status-preventing: without recognition, there can be no State.134
In general terms, the proponents of the declarative theory can be divided into two groups. The first, more extreme group, regards recognition by existing States as completely irrelevant. The creation of States is seen as a factual process which happens outside of international law. This approach suggest that international law should regard States purely as a matter of fact, but that it should not determine which entities may be considered States or not. 135 This position is for example held by James, who argues that:
„[I]t is not a provision of international law which has to be satisfied for a state to be ascribed sovereign status (…). Thus the position of international law in relation to sovereignty [meaning: the existence of States] is that it presupposes it. International law
131 Hobach, Lefeber & Ribbelink 2007, p. 170.
132 Meijknecht 2001, p. 43.
133 Talmon 2004, p. 105.
134 Talmon 2004, p. 101.
135 Hobach, Lefeber & Ribbelink 2007, p. 178.
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makes only sense on the assumption that there are sovereign states to which it can be applied.‟136
The second group – which consists of most supporters of the declaratory theory – accepts however that international law (as formed by the existing States) does indeed contain criteria for the creation of States. They disagree, however, that recognition by other States belongs to these criteria. Recognition by existing States might be beneficial, but it is not required for the creation, or the continuation of a State.137
Over the course of the 20th century the declaratory theory on recognition became the predominant theory on statehood.138 It finds support in treaties, declarations of States and particularly jurisprudence.139 This factual approach of the State is confirmed by art. 1 of the Montevideo Convention, which describes the attributes of the State in terms of effective authority and independence, instead of civilization or dynastic legitimacy.140 Given the „factual‟ description of the State in art. 1 of the Montevideo Convention it is not surprising that a statement against the constitutive theory of recognition can be found in art. 3 of the Montevideo Convention:141
„The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and subsequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.
The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.‟
This view is shared by the Institute de Droit International, which declared in art. 1 of its Brussels Resolution Concerning the Recognition of New States and New Governments
136 James 1986, p. 40.
137 Hobach, Lefeber & Ribbelink 2007, p. 179.
138 Talmon 2004, p. 105.
139 Talmon 2004, p. 106.
140 Hobach, Lefeber & Ribbelink 2007, p. 177.
141 Hobach, Lefeber & Ribbelink 2007, p. 177.
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of 23 April 1936:142
„Recognition has a declaratory effect; The existence of a new State with all the juridical effects which are attached to that existence, is not affected by the refusal of recognition by one or more States.‟143
The declaratory position on recognition also finds support in the opinions of the Arbitration Commission of the Hague Conference on Yugoslavia (also known as the „Badinter Commission‟), which was set up with the backing of the European Political Co-operation (EPC) (currently superseded by the Common Foreign and Security Policy). The Commission was charged with the task of studying questions relating to the recognition of new States and State succession, which resulted from the dismemberment of the Socialist Federal Republic of Yugoslavia (SFRY). In its first Opinion on 29 November 1991, it expressed that:144
„the principles of public international law (…) serve to define the conditions on which an entity constitutes a State; that is in this respect, the existence (…) of the State is a question of fact; that the effect of recognition by other States are purely declaratory.‟145
The declaratory theory also finds support in contemporary State practice. The Deutsche Demokratische Republik (DDR) was established on the 7th of October 1949, but it would take until the 1970s before it would be formally recognized by Western States. This does not mean however that the DDR lacked the properties of statehood before its recognition by the existing States. This was reflected by the Dutch position on the DDR until the early seventies (before it formally recognized the DRR as a State). The Dutch government argued that recognition of States was a political decision, not necessarily based on international law criteria.146 This position is not surprising as it would otherwise not be possible for a non-recognizing State to hold a non-recognized State
142 Talmon 2004, p. 105-106.
143 American Journal of International Law, Suppl., 1936, p. 185ff.
144 Talmon 2004, p. 106-107.
145 Opinion No. I [Disintegration of the SFRY] (1991) 92 ILR 162, p. 164-165. Affirmed in Opinion No. 8 [Extinction of the SFRY] (1992) ILR 199, p. 201.
146 Hobach, Lefeber & Ribbelink 2007, p. 179.
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liable for violating any international obligations. Nonetheless, State practice demonstrates that an „unrecognized State‟ is also bound by international law. In 1949 a British fighter jet was shot down over Egypt by the Israeli armed forces. While the United Kingdom did not officially recognize Israel at that time (as it still adhered to the constitutive interpretation of recognition), it did hold Israel responsible for the incident and called for redress. Similarly, many Arab States do not formally recognize Israel as a State, but they frequently condemn Israel for not complying with its international obligations. Another example is the United States which held North-Korea liable for an attack on its ship the „Pueblo‟ in 1968, even though North-Korea was not recognized by the United States at the time.147
Despite the considerable support for the declaratory theory in international law, there is at least one issue that continues to reopen the debate between the declaratory and constitutive theories: international law does not have any mechanisms for authoritatively determining whether an entity fulfills the factual criteria for statehood.148 The absence of such a body is one of the main arguments used by proponents of the constitutive theory to argue for the importance attached to recognition by existing States. Kelsen – one of the prominent defenders of the constitutive theory – argues for instance, that international law provides existing States the freedom to determine in each case separately whether an entity meets the necessary criteria for statehood.149 Recognition is therefore necessary to close the gap between the general rules of international law and the specific facts on which these rules should be applied. Kelsen notes that recognition is a determination of facts: a determination of the existence of a sufficiently effective and independent authority (government) over a territory and a population.150 Without such an approval it would not be possible to speak of the existence of a State under international law.151 This view would mean however, that the existence of a States is „relative‟: an entity is considered a State by some States (those who have recognized it) and not a State by other States (those who have not recognized
147 Examples taken from Hobach, Lefeber & Ribbelink 2007, p. 178-179.
148 Hobach, Lefeber & Ribbelink 2007, p. 179.
149 Hobach, Lefeber & Ribbelink 2007, p. 179.
150 Hobach, Lefeber & Ribbelink 2007, p. 179.
151 Hobach, Lefeber & Ribbelink 2007, p. 179.
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it).152 Subsequently, the question arises what the status of such a territorial entity is under international law, and – by extension – what rights it is entitled to and how it should be treated by other members of the international community. Is such an entity entitled to any form of sovereignty for example? The next Section will examine in more detail some of the ambiguities relating to the application of the declaratory and constitutive theories of recognition.
3.2 Recognition of Governments
Recognition of States must be distinguished from the recognition of governments, both of which are subject to their own set of rules. Questions regarding the recognition of governments normally only arise in relation to a (previously) recognized State (a State may have „competing‟ governments, without having its (legal) continuity affected).153 While international law distinguishes States from their governments, it is normally only the government of a State that has the capacity to bind a State, such as by treaty. As such, the existence of a government in a territory is a requirement for the normal conduct of international relations.
States can be roughly divided into three categories based on their recognition policy: States that explicitly recognize governments such as the United Kingdom before 1980 (de jure recognition), States that generally do not explicitly recognize governments, but might do so out of political considerations, such as the United States and lastly States that formally recognize only States and not their governments such as the Netherlands and those that follow the „Estrada-doctrine‟ (de facto recognition).154
152 The recognition of a State may depend on many other considerations than mere factual ones, such as political or economic considerations. Koojimans 2002, p. 2.
153 Hobach, Lefeber & Ribbelink 2007, p. 180-181.
154 The Estrada-doctrine is the name of Mexico’s core foreign policy ideal from 1930 onwards (shortly discontinued between 2000 and 2006, during the Fox Administration). Its name derives from Genaro Estrada, Secretary of Foreign Affairs during the presidency of Pascual Ortiz Rubio (1930-1932), who pointed out that Mexico would refrain from the explicit recognizing governments „since that nation considers that such course is an insulting practice.‟ At present, the majority of States adhere to the Estrada-doctrine and do not explicitly acknowledge governments. For more information, see: Hobach, Lefeber & Ribbelink 2007, p. 180-184.
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The recognition of a government merely implies that a State acknowledges that one or more persons are competent to act as organs of the State and to represent it in its international relations.155 This may be important for example, in cases where there are competing governments within the same recognized State (such as Congo in 1960156), or in case of a possible secession. However, while it is generally accepted that statehood requires a government capable of exerting (effective and independent) authority over the territory and its people, it is not required that this government is recognized by the international community. The recognition of governments must therefore be considered separate from the criterion of effective authority.157
155 Hobach, Lefeber & Ribbelink 2007, p. 181-182.
156 Crawford 1977, p. 116.
157 Hobach, Lefeber & Ribbelink 2007, p. 181-185.
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4. Ambiguities Relating to the Application of the Declaratory and Constitutive Theories
It is clear that the temporary disruption of the effectiveness of the authority (due to for example internal unrest, civil war or hostile military occupation) does not lead to the loss of existing statehood. Depending on political opportunity, regional or global organizations, will attempt to restore some form of centralized authority and put an end to any serious fundamental human right violations.158 However, even if the internal unrest or civil war leads to lasting anarchy and the de facto collapse of a State, State practice has not resulted in the denial or the „de-recognition‟ of a State. Similarly, numerous territorial entities have achieved statehood, without having an effective and independent authority, both during and after the process of decolonization (such as Congo and Bosnia-Herzegovina). Recognition of these entities by the international community of States appears to have played a crucial role in their ability to achieve statehood. This Section will therefore examine whether the creation and continuation of States can be (fully) explained in accordance with either the declarative or constitutive theories. For this purpose, the case of Somalia and Somaliland will be considered, as it will help to identify many of the ambiguities arising from the practical application of the declarative or constitutive theories.
4.1 The Case of Somalia and Somaliland159
Somalia is arguably the best-known example of a so-called „failed State.‟ The notion of the failed State – sometimes also referred to as a ‘collapsed State’ or an „etat sans gouvernement‟ – has no legal standing in international law. Neither does a clear (non-) legal universal definition of a failed State exist. In general, it may be defined as a way to
158 Kooijmans 2002, p. 22.
159 For a detailed discussion about the situation in Somalia and Somaliland, see M. Schoiswohl, Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes In International Law: The Case of ‘Somaliland, Leiden/Boston: Martinus Nijhoff Publishers 2004.
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describe a sovereign State that has failed at some of its fundamental responsibilities.160 Insofar as relevant to this thesis, this fundamental responsibility will relate to the absence of an effective governmental authority, which is a necessary condition for statehood. In this regard, the case of Somalia and Somaliland is of particular interest, due to its combination of legal and factual circumstances.
Somalia‟s last functioning government was swept away during the outbreak of the Somali civil war in 1991. Since then, there has been no central government to control most of Somalia’s territory. Large portions of Somalia, particularly in the south, remain under the influence of various clans opposing each other in their claim for authority. Somalia’s official internationally recognized government, the Transitional Federal Government, which is backed by the United Nations, the United States and the African Union, has yet to establish effective governance on the ground, as it controls only the capital, Mogadishu, and some territory in the center of Somalia. Somalia has not only been unable to discharge its basic and primary functions, but it has de facto ceased to exist.161 It was ranked the most failed Stated by The Failed State Index for a third consecutive year, scoring 114.3 points out of a total of 120 points.162 The Economist, has described Somalia as „the world‟s most utterly failed State.‟163 However, despite the
160 A well-known example of a definition of the failed State is given by the Crisis States Research Centre (CSRC). The CSRC is a centre that does interdisciplinary research into processes of war, state collapse and reconstruction in fragile States. The CSRC uses a number of definitions to describe States in various stages of failure and it has defined a failed State as „a condition of “State collapse” – eg, a State that can no longer perform its basic security, and development functions and that has no effective control over its territory and borders. A failed State is one that can no longer reproduce the conditions for its own existence. This term is used in very contradictory ways in the policy community (for instance, there is a tendency to label a “poorly performing” State as “failed” – a tendency we reject).‟ It continues to describe that „the opposite of a „failed State is an enduring State and the absolute dividing line between these two conditions is difficult to ascertain at the margins. Even in a failed State, some elements of the State, such as local State organisations, might continue to exist.‟ For definitions of the terms „fragile‟, „crisis‟ and „failed‟ state, as used by CSRC, see: <http://www2.lse.ac.uk/internationalDevelopment/research/crisisStates/Research/research.aspx> Another example is given by Schoiswohl 2004, p. 24-27.
161 Schoiswohl 2004, p. 131.
162 For more information about the Failed State Index and the methodology used for measuring State failure, see Introduction.
163 „Hope is four-legged and woolly‟, The Economist, October 15th-21st 2011, p.37.
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collapse of Somalia as a unitary State,164 it continues to be formally recognized as a sovereign State by the international community of States: it continues to exist „de jure‟ as it were.
Within Somalia exist several de facto independent territories, with the most notable being the self-declared, but unrecognized, „Republic of Somaliland‟ (Somaliland), located in the the north-western part of Somalia. In contrast to Somalia, which remains embroiled in destructive internal conflicts, Somaliland appears to function on the basis of an effective and working constitution (National Charter).165 In accordance with the National Charter, Somaliland‟s government consists of a parliament, an executive
164 „Hope is four-legged and woolly‟, The Economist, October 15th-21st 2011, p.37.
165 Schoiswohl 2004, p. 133.
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branch, and a legislative branch.166 Security in Somaliland has been continuously improving and is generally regarded as high. Political opposition to the government is displayed through peaceful methods.167 This is demonstrated, among other things, by the large amount of international NGOs operating in Somaliland, and the return of many Somali refugees after years in exile.168 Somaliland has also demobilized the different clan forces and formed a national armed force, as well as a regular police force. Revenues are collected by the Somaliland authorities through exports taxes, fees for certain services and imports.169 In addition, Somaliland maintains foreign relations with several States and organizations.170
Based on the factual criteria for statehood, Somaliland may be regarded as a (sovereign) State: there exists a territory, a permanent population and an authority capable of exerting effective control over the territory. Somaliland’s (lack of) recognition by other States is according to the (predominant) declaratory theory irrelevant. An entity’s statehood is independent of its recognition by other States. A State, in this case Somaliland, must first exist, before other States may enter into relations with it. There is however no obligation for States under international law, to recognize an entity as a State once it fulfils the factual criteria for statehood. Consequently, without any recognition by the international community, Somaliland‟s existence may be described as „de facto‟: it meets all the necessary criteria for statehood, but remains unrecognized as a State by the international community.
This apparent difference raises several important question about the status of Somaliland in international law, and by extension the theories of statehood in general. Ideally a State exists as both de jure and de facto: once a territorial entity possesses all the necessary factual requirements for statehood it becomes a State and subsequently it is – without compulsion – recognized as such by the existing States. But the case of Somalia and Somaliland seems to indicate that it is possible for a State to exist, at some point, as either one, or the other. This is problematic, if only for the reason that it is not
166 Schoiswohl 2004, p. 134.
167 Schoiswohl 2004, p. 134.
168 Schoiswohl 2004, p. 134.
169 Schoiswohl 2004, p. 137.
170 More information regarding the foreign relations of Somaliland can be found on the website of the Somaliland Embassy at: http://www.somalilandembassy.se/.
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possible for two separate States to occupy the same territory, simultaneously: one as de jure and the other as de facto. However, based on the above, it can be argued that States can be divided into three categories.
The first category consists of States that exist as both de jure and de facto: these States could be described as „ideal-typical‟ sovereign States: they fulfill the factual requirements for statehood and are recognized as States by the international community. Most States fall into this category and examples are numerous, such as The United States, Lichtenstein and the Netherlands. These States meet the requirements of both the declaratory and constitutive theories. They meet the factual criteria for statehood (as required by the declaratory theory) and they are granted recognition by the existing States (which is required by the constitutive theory for its status-creating effect). The existence of the ideal-typical States, is widely accepted by the international community and their statehood is (for all intents and purposes) unchallenged. This is not to imply that they are free from all issues relating to international law. Nonetheless, as full and original subjects of international law they are entitled to all rights that are inherent in statehood. Subsequently, they may address these issues within the full framework of international law.
The second category of States are those that exist as de jure, but not de facto: these are States that are formally recognized by the international community as sovereign States, despite failing to meet the requirement of effective authority. These could be existing States such as Somalia, or States that have yet to be established, such as Congo during the decolonization period (Congo was granted recognition, despite lacking any resemblance of effective authority).171 However, neither the declaratory theory, nor the constitutive theory may accord statehood to these entities, as they do not meet the factual criteria for statehood. The question whether recognition is a requirement for statehood only becomes relevant once an entity meets the factual criteria for statehood (which is either status-confirming in accordance with the declaratory theory, or status-creating in accordance with the constitutive theory). While some (putative) States ultimately did meet the requirement of effective authority, such as Bosnia-Herzegovina, it was not until after they had achieved statehood. Other States such as Somalia, Chad and Congo remain (in varying degrees) ineffective until this day. In all these instances
171 See Section 2.2.3.1. on Effectiveness.
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recognition by the international community appears to have played an essential role in the ability of these entities to achieve statehood.
The third and final category of States exist as de facto, but not de jure: these States fulfill the factual requirements for statehood, but they are not recognized as (sovereign) States by existing States, such as Somaliland. De facto States, may be considered States exclusively in accordance with the declaratory theory. They fulfill the factual criteria for statehood, but they are not granted (formal) recognition by existing States. Subsequently, they lack the status-creating effect of recognition, which is required by the constitutive theory. While the declaratory theory of recognition is considered to be the predominant theory of statehood in international law – it finds support in treaties, opinions and State practice – it is exactly the de facto States that are shrouded in most legal uncertainty.
For a State to be able to exercise its full legal rights under international law, it must first be recognized by other States. With regard to the these rights, Talmon points out the following:
„If a State’s legal status is to be withheld from it, then the question arises as to what precisely that legal status is. States are „born‟ subjects of international law. Their existence confers on them, the most comprehensive legal personality and capacity to act of all subjects of international law. Capacity or competence, however are not to be mistaken for rights: for example, a State has the capacity to conclude treaties with other States (treaty-making power) but, under customary international law, it does not have the right to demand that other States make treaties with it. Statehood merely bestows certain rudimentary rights. […] It is necessary to distinguish between the rights inherent in statehood, i.e. the rights a State can demand under general international law because it is a State, and the optional relations between States (and the resulting rights and privileges) that depend on the consent or co-operation of the other States.‟172 [emphasis added] But even if there are only very few rights inherent in statehood, a State cannot be denied those rights.173 More importantly however, issues relating to inherent rights only arise
172 Talmon 2004, p. 148.
173 Talmon cites three main documents that deal with the rights and duties of States and offer guidance regarding the inherent rights of States: the Draft Declaration on Rights and Duties of States which was drawn up by the ILC in 1949, and which was subsequently noted but not adopted by the General
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once it is established that a State exists.
An example of such inherent rights may be membership of the United Nations. According to the art. 4 of the UN Charter:
„1. Membership in the United Nations is open to all (…) States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
2. The admission of any such State to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.’ [emphasis added] Somalia (as a de jure State) is a member of the United Nations, while Somaliland (a de facto State) is not. In addition, Somaliland cannot become a member of the United Nations while it remains unrecognized by existing States.
If it were to be argued however that membership of the United Nations cannot be considered a right inherent in statehood, it is undeniable that (de jure) States such as Somalia are (at least in principle) entitled to respect for their independence and territorial integrity, by virtue of their sovereignty. An important rule in this regard is the prohibition of the use of force between States, which is controlled by both customary international law and by treaty law. Art. 2, paragraph 4 of the UN Charter reads:
„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.‟
Somaliland (as a de facto State) however is unlikely to be able to invoke any rights inherent in statehood, due to its lack of (formal) recognition by the international
Assembly, The Charter of Economic Rights and Duties which was adopted by the General Assembly on 12 December 1974 over the opposition of important industrial States, and the Montevideo convention of 1933. These documents are primarily concerned with duties rather that rights as can be seen in the Draft Declaration of 1949, which lists just four rights as opposed to ten duties. The declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United nations of 24 October 1974 (‘Friendly Relations Declaration’) also mentions certain ‘rights’ of States. P.
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community. What legal consequences would arise for example if Somalia attempted to „reassert‟ its control over Somaliland after two decades of de facto independence? How does this relate to third States? And what consequences does this have for State-liabilities? Somaliland may still be subject to certain duties under international law, such as those relating to State liabilities, as in the case of the DDR: „all pain, no gain.‟
While the above distinction is artificial – as there is no distinction in international law between different categories of States174 – it does reveal, that neither the declaratory, nor constitutive theory of recognition can satisfactorily explain the objective legal situation of States in international law. If Somaliland has achieved statehood, the continuity and territorial integrity of Somalia should be affected. Yet, Somalia’s statehood and borders remain internationally uncontested by existing States. This causes the curious situation where Somaliland is a State according to the predominant declaratory theory, yet it is Somalia which continues to (formally) exist through recognition and subsequently enjoys all rights inherent in statehood. On the other hand, if Somaliland is not a State, the declaratory theory would be inadequate, as the classic criteria for statehood have been met for well over two decades.
Some legal scholars have attempted to explain these ambiguities by pointing out that the factual criteria for statehood as described in the Montevideo Convention might primarily have been intended as criteria for assessing the creation of States rather than criteria for assessing the continuation of States. But this explanation falls short, as both during and after the process of decolonization, territorials entities have managed to achieve and maintain statehood, despite lacking effectiveness. Perhaps more importantly, as Talmon notes „The legal status of “State” […] describes a state of affairs, not a one-off event; therefore, the criteria for statehood serve as a test for both the creation and the continued existence of the State.‟175
4.2 Possible Explanations
Given the above, it is therefore not surprising that an extensive debate exists in the legal
174 An entity cannot be „somewhat‟ of a State (it is either a State, or it is not a State) and the (legal) relationship between States is founded on the principle of sovereign equality between States.
175 Talmon 2004, p. 124.
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doctrine about whether the current criteria for statehood suffice, or whether they should be supplemented with additional norms.176 These norms are either regarded as additional criteria of legality regulating the creation of States, or as reasons for the nullity of the State‟s creation.177 Although such norms go beyond the generally accepted criteria of the declaratory and constitutive theories, certain remarks may be made with regard to some of the issues that arise from using additional norms to explain the notion of statehood in international law.
In recent decades, an understanding has emerged, that certain fundamental principles of international law are of such great importance for the protection of the interests of the international community as a whole that no derogation from these norms is ever permitted.178 These norms are also known as „peremptory norms‟ of international law, or „ius cogens.‟ Legal scholars have identified such norms as the prohibition of the use of force, the right to self-determination of peoples (during and after the period of colonial rule), the prohibition of racial discrimination (such as apartheid), genocide, torture, slavery, colonialism and numerous others.179 Peremptory norms of international law create obligations towards the entire international community, also known as an „erga omnes‟ obligations.180 According to art. 53 and 64 of the 1964 Vienna Convention on the Law of Treaties (Vienna Convention), a treaty is null and void if it conflicts with a peremptory norm of general international law. Some authors have argued by analogy
176 Hobach, Lefeber & Ribbelink 2007, p. 172.
177 Talmon 2004, p. 143.
178 Kooijmans 2002, p. 18-19.
179 Talmon 2004, p. 143, Kooijmans 2002, p. 18-19.
180 With regard to the breach of such obligations, the ICJ stated „[…] an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. [at 34] Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character.[…]. Barcelona Traction case, ICJ Reports 1970, p. 32, para. 33.
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with the Vienna Convention „that a new State created in violation of a norm having the character of ius cogens is illegal and therefore null and void.‟181
While it is clear that the legal development in this area is in progress and may reflect the understanding that the international community is more than a collection of separate States (with separate interests) caution must be exercised. Although some authors have argued that a clear general consensus seems to have emerged with regard to certain norms,182 others – such as Talmon – have noted that the existence of additional legal criteria for statehood cannot be proven.183 This is not to say that the existence of such norms is in itself controversial, but there is still considerable disagreement about which rules of international law may be considered to have a mandatory character for the creation and continued existence of States: that is, within the context of statehood. Insofar as these norms may be identifiable, establishing their exact content is not without difficulties. As such, determining whether – and to what degree – a violation of such norms has occurred would face many hurdles.
Other problems are more practical in nature. In the absence of an international central authority, States must themselves decide whether the violation of a certain norm is the concern of the international community as a whole and by what means they want to protect this norm (usually within the framework of the UN Charter). Without a broad consensus among States it will not be possible to determine a) if a violation of a norm of ius cogens has occurred, and b) whether the violation may serve a reason for the nullity of the State‟s creation. However, if the past is an indication of the political hurdles that the international community faces when dealing with international crises, reaching such an agreement will not be an easy task.
While these issues are not exhaustive,184 they do demonstrate that the existence of additional norms of ius cogens and erga omnes obligations for statehood should not be adopted too easily, as they may be uncertain, changeable or even contradictory.
Furthermore, the use of additional norms to explain the objective legal situation of
181 Talmon 2004, p. 129.
182 Hobach, Lefeber & Ribbelink 2007, p. 171-174.
183 Talmon 2004, p. 143-144.
184 Think for example of the temporal scope of a norm of jus cogens. Violation of a norm of jus cogens cannot be applied to a State that already exists. But what would the implications be for Somalia and Somaliland if a norm of jus cogens is being violated by Somalia, but not Somaliland?
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States in international law only applies to situations where a territorial entity meets the three factual criteria for statehood, but remains unrecognized by the international community. The existence of such norms does not address situations where a territorial entity has achieved (formal) statehood, without fulfilling the factual criteria for statehood. Subsequently, additional criteria for statehood would – under ideal circumstances – only provide a solution in situations where the requirements of the declaratory theory have been met. They would not provide an explanation for situations where a territorial entity has achieved (and maintains) statehood but fails to meet the requirement of effective authority, as required by both the declaratory and constitutive theories.
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Conclusions
The notion of the modern State has undergone numerous significant changes since its formal conception at the Peace of Westphalia in 1648. During the last two centuries, the State has gone from primarily being regarded as a „matter of law‟, to being regarded as a „matter of fact‟. In contemporary international law, the concept of statehood revolves around two competing theories: the (predominant) declarative theory and the constitutive theory. The core of the discussion around these theories revolves around question whether the formation (and continued existence) of States is dependent or independent of recognition by the existing States. In other words, it is about the legal effect of recognition on statehood.
According to the declaratory theory a State must possess a territory, a permanent population and an effective (and independent) government. Recognition of a State is nothing more than expressing the willingness to enter into relations with that State. As such, an entity becomes a State for the reason that it meets all the international legal criteria for statehood. The recognizing State merely establishes, confirms or provides evidence of the objective legal situation, that is, the existence of a State. Recognition is therefore retroactive and status-confirming.
In contrast, according to the constitutive theory, a State only becomes a State by virtue of recognition by the existing States. Once the three factual criteria of the declaratory theory have been met, this „factuality‟ must then be confirmed by the existing States. The constitutive theory views recognition therefore as status-creating and non-recognition as status-preventing: without recognition, there can be no State.
Proponents of the declarative theory have argued that the constitutive theory is unsustainable in practice, as there is no international body with the authority to acknowledge the existence of States on behalf of the entire community of States. As such, each State may individualy decide whether a new State has come into being and (without any obligations) recognize it. This would have the consequence that an entity would be State relative to those States that have recognized it, and not to those States that have not recognized it. Subsequently, the question arises what the status of such a territorial entity is under international law, and – by extension – what rights it may invoke, and how it should be treated by other members of the international community.
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In turn, proponents of the constitutive theory have criticized the declarative theory for being unable to explain the legal status of the collectively non-recognized territorial entities that do fulfill the factual criteria for statehood.
Closer examination reveals however that these are not the only shortcoming related to the declarative and constitutive theories. The principle of effective authority is regarded as an essential criterion for statehood according to both theories. Nevertheless, State practice demonstrates that there have been many instances where territorial entities have achieved statehood, while lacking any resemblance of effective authority. This has occurred both during, and after the process of decolonization. Similarly, there are numerous States that continue to exist without effective authority. In this regard, the case of Somalia and Somaliland is of particular interest, due to its combination of legal and factual circumstances.
Somalia is an example of what may be described as a failed State. Since the Somali civil war in 1991, it has not only been unable to discharge its basic and primary functions, but it has de facto ceased to exist. Despite of this, it continues to be formally recognized as a sovereign State by the international community of States: its continued existence is de jure as it were. In contrast, Somaliland – a de facto independent territory within Somalia – may be regarded as a State according to the declaratory theory, as it meets the factual criteria for statehood (territory, people and government) and it has done so for well over two decades.
This combination of legal and factual circumstances raises several important questions about the status of Somaliland in international law, and by extension the theories of statehood in general, as it seems to indicate that it is possible to have three different categories of States in international law.
Normally a State exists as both de jure and de facto. These States may be described as „ideal-typical‟ sovereign States, as they meet the factual requirements for statehood and are recognized as States by the international community. The ideal-typical States are States in accordance with both the declaratory and constitutive theories: they meet the factual criteria for statehood (which is required by the declaratory theory) and they are granted recognition by the existing States (as required by the constitutive theory for its status-creating effect).
However, the situation of Somalia demonstrates, that it is also possible for States to
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exist as de jure (but not de facto). These are States that are formally recognized by the international community as sovereign States, despite failing to meet the requirement of effective authority. Yet, neither the declaratory theory, nor the constitutive theory may accord statehood to these entities, as they do not meet the factual criteria for statehood.
In contrast, the situation of Somaliland demonstrates the existence of de facto, (but not de jure) States. These are States that meet the factual requirements for statehood, but are not recognized as (sovereign) States by existing States. De facto States may be considered States in accordance with the predominant declaratory theory, as they meet the factual criteria for statehood. Yet, it is exactly the de facto States, that are faced with the most legal uncertainty.
Without recognition, a State will not be able to exercise rights inherent in statehood. An example of such an inherent right may be membership of the United Nations. Somalia (as a de jure State) is a member of the United Nations, while Somaliland (a de facto State) is not. In addition, Somaliland cannot become a member of the United Nations as long as it remains unrecognized by existing States. If it were to be argued that membership of the United Nations is not a right inherent in statehood, it is undeniable that (de jure) States such as Somalia are (at least in principle) entitled to respect for their independence and territorial integrity, by virtue of their sovereignty. A key component in this regard is prohibition of the use of force between States, which is controlled by both customary international law and by treaty law. Somaliland (as a de facto State) is unlikely to be able to invoke any such rights against other States (including Somalia), as long as it lacks (formal) recognition by the international community. Meanwhile however, Somaliland may still be subject to certain duties under international law, such as those relating to State liabilities, as in the case of the DDR.
While the above distinction between States is artificial, it does reveal that neither the declaratory, nor constitutive theory of recognition can satisfactorily explain the objective legal situation of States in international law. If Somaliland has achieved statehood, the continuity and territorial integrity of Somalia should be affected. Yet, Somalia’s statehood and borders remain internationally uncontested by existing States. This causes the curious situation where Somaliland is a State according to the predominant declaratory theory, yet it is Somalia which continues to (formally) exist
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through recognition. Subsequently, it enjoys all rights inherent in statehood. On the other hand, if Somaliland is not a State, the declaratory theory would be inadequate, as the classic criteria for statehood have been met for well over two decades.
Some legal scholars have attempted to explain some of these ambiguities by arguing that the factual criteria for statehood as described in the Montevideo Convention might have been intended as criteria for assessing the creation of States rather than criteria for assessing the continuation of States. This explanation falls short however, as both during and after the process of decolonization, territorials entities have managed to achieve and maintain statehood, despite lacking effectiveness. But perhaps even more importantly is the legal nature of statehood. As Talmon notes: „The legal status of “State” […] describes a state of affairs, not a one-off event; therefore, the criteria for statehood serve as a test for both the creation and the continued existence of the State.‟
It is therefore not surprising that an extensive debate exists in the legal doctrine about whether the current criteria for statehood suffice, or whether they should be supplemented with additional norms. Norms that are either regarded as additional criteria of legality regulating the creation of States, or as reasons for the nullity of the State‟s creation. While it was not the purpose of this thesis to establish whether any additional norms for statehood exist – as these go beyond the generally accepted criteria of the declaratory and constitutive theories – it can be said that the use of additional norms of ius cogens and erga omnes obligation for statehood should not be adopted too easily, as they may be uncertain, changeable or even contradictory.
In addition, the use of additional norms to explain the objective legal situation of States in international law only applies to situations where a territorial entity meets the three factual criteria for statehood, but remains unrecognized by the international community. The existence of such norms does not address situations where a territorial entity has achieved (formal) statehood, without fulfilling the factual criteria for statehood. Subsequently, the use of additional criteria for statehood would only provide answers to situations where the requirements of the declaratory theory have been met. Additional norms would not explain situations where a territorial entity has achieved (and maintains) statehood but fails to meet the requirement of effective authority, as required by both the declaratory and constitutive theories.
On the basis of the above, it seems that (non-) recognition of territorial entities is of
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such great significance, that it can essentially function as a substitute for the factual criteria for statehood, by either allowing or preventing the creation of States. Given this immense influence of international relations – which manifests itself through recognition – on the (legal) notion of statehood, the question must be raised whether the State is an objectively determinable entity at all, or whether it is a abstract entity (mostly) subjected to the discretion of the international community.
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Bibliography
Birdsall 2009
A. Birdsall, The international politics of judicial intervention: creating a more just order, New York & Oxon: Routledge 2009.
Brownlie 2008
I. Brownlie, Principles of public international law, Oxford: Oxford University Press 2008.
Caspersen & Stansfield 2011
N. Caspersen & G. Stansfield, Unrecognized States in the International System, London & New York: Routledge 2011.
Crawford 1977
J. Crawford, „The Criteria for Statehood in International Law‟, British Yearbook of International Law, (Vol. 48) 1977, p. 93-182.
Crawford 2006
J. Crawford, The creation of states in international law, Oxford, Oxford University Press 2006.
Dugard 1987
J. Dugard, Recognition and the United Nations, Cambridge: Grotius Publications 1987.
Economist, The
„Hope is four-legged and woolly‟, The Economist, October 15th-21st 2011.
Evans & Capps 2009
M. Evans & P Capps (red.), International Law: Volume II, Farnham: Ashgate Publishing 2009.
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Grant 1999
T. Grant, The Recognition of States: Law and Practice in Debate and Evolution, Westport: Greenwood Publishing Group 1999.
Hobach, Lefeber & Ribbelink 2007
N. Hobach, R. Lefeber & Ribbelink, Handboek Internationaal Recht, Den Haag: Asser Press 2007.
James 2004
A. James, Sovereign Statehood: The Basis of International Society, London: Allen & Unwin 1986.
Meijknecht 2001
A. Meijknecht, Towards International Personality: the Position of Minorities and Indigenous Peoples in International Law, Antwerpen/Groningen/Oxford: Intersentia 2001.
Milano 2006
E. Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy, Leiden: Brill Academic Publishers 2006.
Neff 2005
S. Neff, War and the Law of Nations, Cambridge: Cambridge University Press 2005.
Schoiswohl 2004
M. Schoiswohl, Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes In International Law: The Case of ‘Somaliland, Leiden/Boston: Martinus Nijhoff Publishers 2004.
Shaw 2003
M. Shaw, International Law, Cambridge: Cambridge University Press 2003.
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Talmon 2004
S. Talmon, „The Constitutive versus the Declaratory Theory of Recognition: Tertium Non Datur?‟, British Yearbook of International Law, (Vol. 75) 2004, p. 101-181.
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Table of Cases
Aaland Island Case
The Aaland Islands Question (On Jurisdiction), Report of the International Committee of Jurists, League of Nations Official Journal, Special Supplement No. 3 (1920).
The Aaland Islands Question (On the Merits), Report by the Commission of Rapporteurs, League of Nations Council Document B7 21/68/106 (1921) (excerpted and reprinted).
Barcelona Traction Case
International Court of Justice, Belgium v. Spain (Barcelona Traction Case) (1970), ICJ Reports 3.
Deutsche Continental Gas Gesellschaft Case
Deutsche Continental Gas-Gesellschaft v. Polish State (Deutsche Continental Gas Gesellschaft Case) (1929), Ann. Digest, (1929-30) Case no. 5, 11.
Island of Palmas Case
Permanent Court of Arbitration, Netherlands v. United States of America (Island of Palmas Case) (1928), RIAA II, 829.
North Seas Continental Shelf Cases
International Court of Justice, Federal Republic of Germany v Denmark; Federal Republic of Germany v. Netherlands (North Seas Continental Shelf Case) (1969), ICJ Reports 3 (Feb 20).
Wimbledon Case
Permanent Court of International Justice, United Kingdom v. Japan (S.S. Wimbledon) (1923), Ser. A, No. 1 (Aug. 17).

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