CONCURRING OPINION OF JUDGE MOTOC

(Translation)

The Court, which is being asked to rule on one aspect of a multi-faceted and complex dispute while excluding the other aspects, is inevitably put in a difficult position. Nevertheless, its ruling must be exclusively confined to the subject of the dispute as delimited by the applicants. An international court cannot refuse to judge on the basis of a difficult political context or ongoing Minsk negotiations; non liquet cannot be accepted.

This judgment carries special weight on account of the context, the Nagorno-Karabakh conflict, and also raises the question as to whether it is a timely judgment. The legal, historical and p olitical aspects of the Nagorno ‑ Karabakh conflict are extremely complex.

“What is the cause of historical events? Power. What is power? Power is the sum total of wills transferred to one person. On what condition are the wills of the masses transferred to one person? On condition that the person expresses the will of the whole people. That is, power is power. That is, power is a word the meaning of which we do not understand.” (Leo Tolstoy, War and Peace )

How can we expect the Court to give a complete answer? Accordingly, the Court ’ s judgments concerning the Nagorno-Karabakh conflict are going to be yet another example of the Court ’ s empirical approach. “I am sitting with a philosopher in the garden; he says again and again ‘ I know that that ’ s a tree ’ , pointing to a tree that is near us. Someone else arrives and hears this, and I tell him: ‘ This fellow isn ’ t insane. We are only doing philosophy ’ ” – these are the words of the outstanding empiricist author, Ludwig Wittgenstein. The limits of the empiricist approach of the Court are really visible in the second judgment of the Court regarding the Nagorno-Karabakh conflict, Sargsyan v. Azerbaijan ( [GC], no. 40167/06 , ECHR 2015 ).

Let me clarify briefly three questions: ( 1) the question of proofs, ( 2) the question of jurisdiction, and ( 3) the question of secession.

1. The question of proofs

In my view, there was no need for a fact-finding mission in this case. The paragraph of the judgment is quoting extensively the proofs, similar to the proofs required by the International Court of Justice (ICJ) . The Court has made extensive references to the standards of proof used in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America) ( Merits ) Judgment , ICJ Reports 1986 .

2. The question of jurisdiction

In the present case, in order to establish the exercise by Armenia of extraterritorial jurisdiction, the Court uses the concept of “effective control” and considers (see paragraph 186 of the present judgment ) that the central element of the exercise of this jurisdiction lies in th e fact that Armenia and Nagorno ‑ Karabakh are “highly integrated”:

“... Armenia, from the early days of the Nagorno-Karabakh conflict, has had a significant and decisive influence over the ‘ NKR ’ , ... the two entities are highly integrated in virtually all important matters and ... this situation persists to this day. ... the ‘ NKR ’ and its administration survive by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercises effective control over Nagorno-Karabakh and the surrounding territories, including the district of Lachin.”

The Court also uses another concept of strong legal significance, which is that of military occupation and presence.

Before proceeding to an analysis of the application by the Court of these different legal concepts, in particular that of “effective control”, it is necessary to determine which concepts are applicable in the instant case. It is true that, as they are lex specialis , the various branches of international law have provided different legal answers to the question of interpretation of the concept of effective control. The Court itself had to clarify this matter in Catan and Others v. the Republic of Moldova and Russia ( [GC], nos. 43370/04 and 2 others , ECHR 2012 ) , paragraph 115 of which is cited in the present judgment. In order to outline the elements on the basis of which the Court ’ s case-law could be made more systematic and consistent in the area of jurisdiction, these various answers need to be examined.

( a) General international law

The applicable rules regarding the imputation to an external power of responsibility for the acts of a secessionist entity are set out in Articles 4 to 8 and 11 of the draft A rticles of the International Law Commission (United Nations) on R esponsibility of States for I nternationally W rongful A cts. The relevant parts of these Articles are worded as follows .

Article 4 Conduct of organs of a State

“1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

...”

Article 5 Conduct of persons or entities exercising elements of governmental authority

“The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capaci ty in the particular instance.”

Article 6 Conduct of organs placed at the disposal of a State by another State

“The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.”

Article 7 Excess of authority or contravention of instructions

“The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”

Articl e 8 Conduct directed or controlled by a State

“The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”

In order for the international responsibility of an external power for the internationally wrongful conduct of a secessionist entity to be established, it has to be shown that the scope of the international obligation of the external power extends beyond its own territory to that of the secessionist entity, namely, that the international obligat ion in question can apply extra territorially and that the acts or omissions of the secessionist entity which violate that obligation are attributable to that external power.

The ICJ has established two criteria for determining the existence of extraterritorial jurisdiction. One of the m is the “effective control” test.

The “effective control” criterion applies where there is evidence of “partial dependence” of the secessionist entity on the external power. That partial dependence can be presumed where, inter alia , the external power provides the secessionist entity with financial, logistic and military assistance and information based on intelligence, and selects and pays the leaders of that entity. That partial dependence gives rise to the possibility for the external power to control the entity.

However, unlike complete dependence, partial dependence does not permit the Court to consider the authorities of the secessionist entity as de facto organs of the external power and to find that the general conduct of those authorities can be regarded as acts by that power; responsibility for particular conduct has to be determined on a case-by-case basis. The responsibility of the authorities of the external power cannot be engaged purely and simply on account of the conduct of the authorities of the secessionist entity; it has to be imputable to the conduct of the organs of that power acting in accordance with its own rules. Moreover, the control in question is no longer that exercised over the secessionist entity itself but that exercised over the activities or operations which give rise to the internationally illegal act.

Barring a few exceptions, international legal commentary and jurisprudence refer to only one of the ICJ ’ s criteria: “effective control”. However, the ICJ did in fact apply two different criteria of control in the two leading judgments it has delivered on the subject: Nicaragua v. the United States of America (cited above) , and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) , Judgment , ICJ Reports 2007 . The former concerned the responsibility of the United States of America for acts by the contras , an armed opposition group operating in Nicaragua, while the latter concerned the responsibility of Serbia and Montenegro for the activities of the Republika Srpska, a secessionist entity which had been created in 1992 with the assistance of the Federal Republic of Yugoslavia (FRY) on the territory of Bosnia and Herzegovina and had “enjoyed some de facto independence”.

In Nicaragua v. the United States of America , the ICJ established three elements that had to be made out in order to establish strict control:

– the secessionist entity has to be completely dependent on the external power;

– this complete dependence has to extend to all areas of activity of the secessionist entity;

– the external power must have actually made use of the potential for control inherent in that complete dependence, that is to say, it must have actually exercised a particularly high degree of control.

The secessionist entity must be “completely dependent on aid” from the external power for strict control to arise as a result of that complete dependence. Complete dependence means that the secessionist entity has “no real autonomy” and is “merely an instrument” or an “agent” of the external power, which acts through it. Use of the same currency or the fact that a substantial portion of the population of the secessionist entity has had, has claimed, or can claim, nationality or citizenship of the external power, are not in themselves a sufficient basis on which to conclude that the secessionist entity is an “agent” of the external power. The same is true of the payment of salaries, pensions and other advantages that the leaders of the secessionist entity may receive. In general, neither close political, military, economic, ethnic or cultural relations between the external power and the secessionist entity nor the provision of logistic support in the form of weapons, training or financial assistance will enable the existence of a relationship of complete dependence to be established without other evidence, even where the secessionist entity and the support it receives from outside, be this largely military, are complementary or pursue the same political objectives.

In Nicaragua v. the United States of America (cited above) , the ICJ established two factors on the basis of which it considered that the existence of “complete dependence” could be established. In its view, the fact that the external power had created and organised the secessionist entity, or the armed opposition group which created the secessionist entity, appeared to establish a strong presumption that the secessionist entity was completely dependent on the external power – whose creation it was – and was none other than its instrument or agent. However, it did not suffice for the external power to have taken advantage of the existence of a secessionist movement and used it in its policies vis-à-vis the parent State. For the dependence on the external power to be complete, the latter must also provide assistance taking various forms (financial assistance, logistic support, supply of information on the basis of intelligence) and which is crucial for the pursuit of the secessionist entity ’ s activities. In other words, the secessionist entity is completely dependent on the external power if it can only carry out its activities with the various forms of support supplied by that power, so that withdrawal of that assistance would result in the cessation of the entity ’ s activities.

In Nicaragua v. the United States of America , the ICJ drew a distinction between the assistance provided by the United States of America to the contras during the first years and that provided subsequently. It found that the contras were completely dependent on the United States at the beginning but that this had subsequently ceased to be the case as the contras had pursued their activities despite the fact that they were no longer receiving military assistance from the United States. In respect of the latter period , the ICJ accordingly concluded that the United States did not exercise “effective control” in Nicaragua, the latter having failed to show that the United States had directed every activity by the contras on the ground.

( b) The European Convention on Human Rights

There is no need to repeat the case-law of our Court here; references to the relevant precedents can be found in the present judgment. Thus, it is reiterated in paragraph 168 that the Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when this State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government. This is followed by the relevant passages from Catan and Others (cited above) , in which the Court ’ s case ‑ law in the area is summarised and illustrated with a number of examples. However, the present judgment does not cite either the paragraphs of the decision in Banković and Others v. Belgium and Others ( (dec.) [GC], no. 52207/99, ECHR 2001-XII ) , which heavily rely on international law , or paragraph 152 in Jaloud v. the Netherlands ( [GC], no. 47708/08, ECHR 2014), in which the Court examined for the first time the concept of “attribution” under international law.

Accordingly, even if one can speak of lex specialis with regard to the Court ’ s case-law, that lex specialis establishes, save in Jaloud (cited above, § 154), an automatic link between control and jurisdiction.

( c) Application of the principles

The Court uses a number of legal concepts in the present case: occupation, military presence and, finally, effective control.

It can be said that in the present judgment the Court raises the threshold of effective control that it had established in earlier cases. In Loizidou v. Turkey ( (merits), 18 December 1996, Reports of Judgments and Decisions 1996-VI), it took note of the substantial number of military officers present in Cyprus – a criterion it used again in Issa and Others v. Turkey ( no. 31821/96, 16 November 2004), in which it concluded that Turkey did not exercise its jurisdiction. In the present case, however, it notes that “[t]he number of Armenian soldiers serving in the ‘ NKR ’ is in dispute” but that it “need not solve this issue as, based on the numerous reports and statements presented above, it finds it established that Armenia, through its military presence and the provision of military equipment and expertise, has been significantly involved in the Nagorno-Karabakh conflict from an early date” . It considers that “this military support has been – and continues to be – decisive for the conquest of and continued control over the territories in issue”, and that “the evidence, not least the [ 1994 military cooperation ] A greement, convincingly shows that the armed forces of Armenia and the ‘ NKR ’ are highly integrated” (see paragraph 180 of the present judgment).

Finding that the “high degree” of integration between the “NKR” and Armenia – a criterion that it uses here for the first time – also exists in the political and judicial sphere, the Court concludes that the latter exercises “effective control” over the former.

It does not, however, consider it necessary to draw a distinction between effective control and the type of control that it had established in IlaÅŸcu and Others v. Moldova and Russia ( [GC], no. 48787/99, ECHR 2004-VII).

It is true that in the present case the Court did not examine the question of the attribution of the acts on account of which the applicants have been deprived of their possessions. However, the situation under general international law is not the same as in the earlier cases. Here, the Court has already established the existence of a high degree of integration between the two entities. A State may perhaps have been able to prove the involvement of the Armenian armed forces in the acts of the authorities of the “NKR” , but for an individual wishing to assert their fundamental rights that would have been very difficult, if not impossible. That is why this lex specialis was introduced. The Court ’ s logic is much easier to discern in the present case than in the earlier cases: even if it does not examine the question of attribution and does not seek to establish the actual participation of the Armenian forces in the acts that resulted in the applicants being deprived of their possessions, the exercise of jurisdiction by the defendant State has been convincingly established here.

In this respect, the present case looks to me to be the closer to the criteri on of effective control, imposed by the ICJ. Even if the words “complete control” are not used by the Court, it does use “occupation” and “high degree of integration”. The reasoning of the Court follows Security Council R esolutions which use the words “local Armenian forces” and are expressed in the particular way of the Security Council (see my opinion in I. Motoc, Interpréter la guerre : les exceptions de l’article 2 § 4 de la Charte de l’ONU dans la pratique du Conseil de sécurité ). In my opinion, this judgment represents one of the strongest returns to general international law or, to put it in a plastic way, to the “Oppenheim world”.

3. The question of secession

The Armenian G overnment has invoked t he fact that the “NKR” is a S tate. The Court is not in a position to decide on issues of the creation of a S tate and on secession in this case, or on self-determination. Judge Wildhaber expressed a similar view in his concurr ing opinion in Loizidou (cited above) . Any statement of the Court in this respect will be pure speculation since the Court has no arguments before it to judge the question of secession, whether remedial or not. The Court is not in a position to judge outside the framework of arguments and proofs brought before it and to develop theories of self-determination.