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AZERBAIJAN'S POSITION TO USE FORCE AGAINST KARABAKH IS CONTRARY TO INTERNATIONAL LAW
Legal Monitor Worldwide
May 22, 2014 Thursday
Even though the Nagorno-Karabakh war was concluded in 1994 with
the signing of a ceasefire agreement, Azerbaijan has constantly
and openly been threatening to start a war to "solve" the conflict
unless a peaceful agreement is achieved - this has been the official
position of Azerbaijan. To this end Azerbaijan has been acquiring
increasingly sophisticated weaponry (with its military budget already
exceeding the entire Armenian national budget) and has been rejecting
the proposals of the OSCE Minsk Group Co-Chairs for reinforcing the
ceasefire such as removing snipers from the line of contact on which
a great number of deaths are registered each year.The international
community condemns the threats of the use of force by Azerbaijan as
well as the ceasefire violations, each time restating that there is
no alternative to the peaceful settlement of the conflict.Azerbaijan
however claims that it has the right under the international law to
use force to take back its territories. Not only have the President
of Azerbaijan and other high-ranking officials stated this many
times in their public speeches, but this has also been included in
the recently adopted military doctrine of Azerbaijan, which states,
"Following the Republic of Armenia's continual occupation of a part
of the territory of the Republic of Azerbaijan... Azerbaijan reserves
the right, in accordance with international law, to use any necessary
means, including force, to restore its integrity."
Azerbaijan also grounds its rejection of ceasefire reinforcing
mechanisms arguing that "if the mechanism is put to work now, it
would mean consolidating the status quo, which is unacceptable for
Azerbaijan", as Azerbaijani Foreign Minister Elmar Mammadyarov has
put it. It is thus imperative to address the question of the legality
of this stance pursued by Azerbaijan, which has in fact not been
given due assessment. In this regard we present to your attention the
review of the article by German professor of international law at the
University of Hamburg Otto Luchterhandt titled Learning from Georgia:
A non-use of force treaty for Nagorno-Karabakh published in the book
Europe's Next Avoidable War, eds. by M. Kambeck and S. Ghazaryan,
2013 (pp. 211-223). The article analyzes the legal aspect of the
use of force in the case of Nagorno-Karabakh and concludes that the
militaristic stance officially pursued by Azerbaijan is contrary
to the international law. Also, drawing upon the experience of 2008
war in Georgia the author recommends that a non-use of force treaty
between the parties to the Karabakh conflict should be signed
without further delay to avoid a similar scenario.Below is the
summary of the article.Azerbaijan justifies its militaristic stance
by referring to the "occupation" of its territories and cites the
right to self-defense under the international law, quoting Chapter
7, Article 51 of the UN Charter (the right of self defense). However
the official position of Azerbaijan to retake territories, including
Nagorno-Karabakh, is not compatible with the international law,
argues Luchterhandt.First, Luchterhandt writes, Azerbaijan (as well
as Armenia and Nagorno-Karabakh) is bound by international law to
"refrain from the threat or use of force", which is a peremptory
norm of international law (jus cogens) and is one of the fundamental
principles of the UN Charter. Second, Azerbaijan wrongly cites the
right of self-defense embedded in article 51 of the UN Charter. It
is true that article 51 is the only exception from the non-use of
force requirement; however Azerbaijan cannot refer to this article
to justify launching a war. The article specifically says, "Nothing
in the present Charter shall impair the inherent right of individual
or collective self defense if an armed attack occurs against a member
of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security." This means,
as Luchterhandt explains, that "Azerbaijan can appeal to the right
of self-defense only if, and as long as, an 'armed attack' occurs".
However, this has not been the case - the war was concluded in 1994
with the signing of a ceasefire agreement and since then the Armenian
forces have launched no armed attack against Azerbaijan and thus
Azerbaijan cannot use force in self-defense under this article.
Further, Azerbaijan grounds its position on an extended definition
of aggression given by the International Court of Justice (ICJ)
according to which an 'armed attack' can also include an "occupation
of a territory" of one state by another. However, if this definition
applied to the case, the right to self-defense still could not
justify the launching of war on the part of Azerbaijan now. "What
the Azerbaijani government is failing to recognize, is that on 11
May 1994 the parties (Azerbaijan, Nagorno-Karabakh and Armenia)
reached a ceasefire agreement... based on the Bishkek Protocol", -
says Luchterhandt. Thus by signing the ceasefire agreement Azerbaijan
has taken up a legal obligation to preserve the ceasefire. Dr.
Luchterhandt reminds that the Bishkek ceasefire agreement has "the
same legal value as an international treaty" and most importantly it
has "a permanent effect". Furthermore, the obligation of Azerbaijan
under the international law to refrain from the threat or use of force
refers also to "international lines of demarcation, such as armistice
lines" as embedded in the 2625 (XXV) Declaration on Principles of
International Law concerning Friendly Relations, which perfectly
applies to the case of the Ceasefire Protocol. Luchterhandt goes on to
explain further,"What is the relationship between the Bishkek Ceasefire
Protocol and Azerbaijan's right to self-defense? The answer is clear:
Azerbaijan is bound to respect the ceasefire for the entire duration
of the protocol, which is indefinite. Correspondingly, it has to
renounce carrying out any military efforts or actions.
Consequently, Azerbaijan's theoretic right as a state to self-defense
according to article 51 of the UN Charter, is in the specific case of
the Karabakh conflict, being superimposed by the Bishkek Ceasefire
Protocol, and is therefore limited by the obligation of a ceasefire
and of non-resumption of military activities. Azerbaijan can appeal
to the full right of self-defense again only when the ceasefire is
interrupted by the Armenian side, thus becoming obsolete because
of the new "armed attack", as indicated in the article 51 of the UN
Charter."Luchterhandt also notes that the occasional skirmishes on the
border do not render the ceasefire agreement obsolete, because there
is no documented evidence as to which side was the first to violate
the ceasefire and because the incidents of ceasefire violations
qualify below the level of an "armed attack". Furthermore, it is
possible to talk about "armed attack" only when "military force is
used against another state in a massive and coordinated way", which
has not been the case.Thus Luchterhandt concludes, "The political
position of Azerbaijan, that the conflict can be solved by force
according to the political discretion of the country, is contrary to
international law. This position contradicts the non-use of force in
relation to the ceasefire lines agreed in the Ceasefire Treaty... and
should be deeply worrying for the entire international community".The
author also warns against the dangers posed by the "irresponsible
leadership of Azerbaijan" and in this regard he makes a comparison
with the situation in Georgia prior to the 2008 war. He points to
the fact that prior to the war Georgia had been pursuing the very
same policy as Azerbaijan holds today. Notwithstanding the fact that
Georgia, based on a number of agreements, was obliged to solve the
conflict with South Ossetia by peaceful means, Georgian President had
repeatedly declared in public that if necessary Georgia would be ready
to re-establish its sovereignty by using force against South Ossetia.
When Georgia actually did use force it breached its international
obligation of refraining from the use of force. Professor Luchterhandt
recalls that prior to the military aggression exercised by Georgia the
UN mission in Georgia (UNOMIG) had been trying to persuade Saakashvili
to conclude a non-use of force agreement, to which however the Georgian
President would not agree. If this agreement had been signed, it would
have considerably increased the obstacles to launching a new war,
argues the author and advises the states, which are in a political
situation similar to that of Georgia prior to 2008, to learn the
lessons from the outcome of the Georgian war.Drawing on the example of
Georgia Luchterhandt urges the international community to pay greater
attention to strengthening the legal and political obstacles created to
prevent breaches of international law and using force. In the case of
Nagorno-Karabakh he thus suggests that an independent non-use of force
agreement should be concluded between all the parties: "Applying this
to the Nagorno-Karabakh conflict, it follows that the first objective
of the international community must be to compel the three parties in
the conflict - through political and diplomatic pressure - to reach
an effective non-use of force agreement. This task is particularly
assigned to the Co-Chairs of the Minsk Group."According to the author
this non-use of force agreement should be concluded independently
from the major negotiations regarding a solution to the Karabakh
conflict, which would create a basic level of trust between the
conflicting parties. He believes this would increase the respect of the
international law and would lead to a greater security and stability.
From: A. Papazian
Legal Monitor Worldwide
May 22, 2014 Thursday
Even though the Nagorno-Karabakh war was concluded in 1994 with
the signing of a ceasefire agreement, Azerbaijan has constantly
and openly been threatening to start a war to "solve" the conflict
unless a peaceful agreement is achieved - this has been the official
position of Azerbaijan. To this end Azerbaijan has been acquiring
increasingly sophisticated weaponry (with its military budget already
exceeding the entire Armenian national budget) and has been rejecting
the proposals of the OSCE Minsk Group Co-Chairs for reinforcing the
ceasefire such as removing snipers from the line of contact on which
a great number of deaths are registered each year.The international
community condemns the threats of the use of force by Azerbaijan as
well as the ceasefire violations, each time restating that there is
no alternative to the peaceful settlement of the conflict.Azerbaijan
however claims that it has the right under the international law to
use force to take back its territories. Not only have the President
of Azerbaijan and other high-ranking officials stated this many
times in their public speeches, but this has also been included in
the recently adopted military doctrine of Azerbaijan, which states,
"Following the Republic of Armenia's continual occupation of a part
of the territory of the Republic of Azerbaijan... Azerbaijan reserves
the right, in accordance with international law, to use any necessary
means, including force, to restore its integrity."
Azerbaijan also grounds its rejection of ceasefire reinforcing
mechanisms arguing that "if the mechanism is put to work now, it
would mean consolidating the status quo, which is unacceptable for
Azerbaijan", as Azerbaijani Foreign Minister Elmar Mammadyarov has
put it. It is thus imperative to address the question of the legality
of this stance pursued by Azerbaijan, which has in fact not been
given due assessment. In this regard we present to your attention the
review of the article by German professor of international law at the
University of Hamburg Otto Luchterhandt titled Learning from Georgia:
A non-use of force treaty for Nagorno-Karabakh published in the book
Europe's Next Avoidable War, eds. by M. Kambeck and S. Ghazaryan,
2013 (pp. 211-223). The article analyzes the legal aspect of the
use of force in the case of Nagorno-Karabakh and concludes that the
militaristic stance officially pursued by Azerbaijan is contrary
to the international law. Also, drawing upon the experience of 2008
war in Georgia the author recommends that a non-use of force treaty
between the parties to the Karabakh conflict should be signed
without further delay to avoid a similar scenario.Below is the
summary of the article.Azerbaijan justifies its militaristic stance
by referring to the "occupation" of its territories and cites the
right to self-defense under the international law, quoting Chapter
7, Article 51 of the UN Charter (the right of self defense). However
the official position of Azerbaijan to retake territories, including
Nagorno-Karabakh, is not compatible with the international law,
argues Luchterhandt.First, Luchterhandt writes, Azerbaijan (as well
as Armenia and Nagorno-Karabakh) is bound by international law to
"refrain from the threat or use of force", which is a peremptory
norm of international law (jus cogens) and is one of the fundamental
principles of the UN Charter. Second, Azerbaijan wrongly cites the
right of self-defense embedded in article 51 of the UN Charter. It
is true that article 51 is the only exception from the non-use of
force requirement; however Azerbaijan cannot refer to this article
to justify launching a war. The article specifically says, "Nothing
in the present Charter shall impair the inherent right of individual
or collective self defense if an armed attack occurs against a member
of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security." This means,
as Luchterhandt explains, that "Azerbaijan can appeal to the right
of self-defense only if, and as long as, an 'armed attack' occurs".
However, this has not been the case - the war was concluded in 1994
with the signing of a ceasefire agreement and since then the Armenian
forces have launched no armed attack against Azerbaijan and thus
Azerbaijan cannot use force in self-defense under this article.
Further, Azerbaijan grounds its position on an extended definition
of aggression given by the International Court of Justice (ICJ)
according to which an 'armed attack' can also include an "occupation
of a territory" of one state by another. However, if this definition
applied to the case, the right to self-defense still could not
justify the launching of war on the part of Azerbaijan now. "What
the Azerbaijani government is failing to recognize, is that on 11
May 1994 the parties (Azerbaijan, Nagorno-Karabakh and Armenia)
reached a ceasefire agreement... based on the Bishkek Protocol", -
says Luchterhandt. Thus by signing the ceasefire agreement Azerbaijan
has taken up a legal obligation to preserve the ceasefire. Dr.
Luchterhandt reminds that the Bishkek ceasefire agreement has "the
same legal value as an international treaty" and most importantly it
has "a permanent effect". Furthermore, the obligation of Azerbaijan
under the international law to refrain from the threat or use of force
refers also to "international lines of demarcation, such as armistice
lines" as embedded in the 2625 (XXV) Declaration on Principles of
International Law concerning Friendly Relations, which perfectly
applies to the case of the Ceasefire Protocol. Luchterhandt goes on to
explain further,"What is the relationship between the Bishkek Ceasefire
Protocol and Azerbaijan's right to self-defense? The answer is clear:
Azerbaijan is bound to respect the ceasefire for the entire duration
of the protocol, which is indefinite. Correspondingly, it has to
renounce carrying out any military efforts or actions.
Consequently, Azerbaijan's theoretic right as a state to self-defense
according to article 51 of the UN Charter, is in the specific case of
the Karabakh conflict, being superimposed by the Bishkek Ceasefire
Protocol, and is therefore limited by the obligation of a ceasefire
and of non-resumption of military activities. Azerbaijan can appeal
to the full right of self-defense again only when the ceasefire is
interrupted by the Armenian side, thus becoming obsolete because
of the new "armed attack", as indicated in the article 51 of the UN
Charter."Luchterhandt also notes that the occasional skirmishes on the
border do not render the ceasefire agreement obsolete, because there
is no documented evidence as to which side was the first to violate
the ceasefire and because the incidents of ceasefire violations
qualify below the level of an "armed attack". Furthermore, it is
possible to talk about "armed attack" only when "military force is
used against another state in a massive and coordinated way", which
has not been the case.Thus Luchterhandt concludes, "The political
position of Azerbaijan, that the conflict can be solved by force
according to the political discretion of the country, is contrary to
international law. This position contradicts the non-use of force in
relation to the ceasefire lines agreed in the Ceasefire Treaty... and
should be deeply worrying for the entire international community".The
author also warns against the dangers posed by the "irresponsible
leadership of Azerbaijan" and in this regard he makes a comparison
with the situation in Georgia prior to the 2008 war. He points to
the fact that prior to the war Georgia had been pursuing the very
same policy as Azerbaijan holds today. Notwithstanding the fact that
Georgia, based on a number of agreements, was obliged to solve the
conflict with South Ossetia by peaceful means, Georgian President had
repeatedly declared in public that if necessary Georgia would be ready
to re-establish its sovereignty by using force against South Ossetia.
When Georgia actually did use force it breached its international
obligation of refraining from the use of force. Professor Luchterhandt
recalls that prior to the military aggression exercised by Georgia the
UN mission in Georgia (UNOMIG) had been trying to persuade Saakashvili
to conclude a non-use of force agreement, to which however the Georgian
President would not agree. If this agreement had been signed, it would
have considerably increased the obstacles to launching a new war,
argues the author and advises the states, which are in a political
situation similar to that of Georgia prior to 2008, to learn the
lessons from the outcome of the Georgian war.Drawing on the example of
Georgia Luchterhandt urges the international community to pay greater
attention to strengthening the legal and political obstacles created to
prevent breaches of international law and using force. In the case of
Nagorno-Karabakh he thus suggests that an independent non-use of force
agreement should be concluded between all the parties: "Applying this
to the Nagorno-Karabakh conflict, it follows that the first objective
of the international community must be to compel the three parties in
the conflict - through political and diplomatic pressure - to reach
an effective non-use of force agreement. This task is particularly
assigned to the Co-Chairs of the Minsk Group."According to the author
this non-use of force agreement should be concluded independently
from the major negotiations regarding a solution to the Karabakh
conflict, which would create a basic level of trust between the
conflicting parties. He believes this would increase the respect of the
international law and would lead to a greater security and stability.
From: A. Papazian