DISSENTING OPINION OF JUDGE GYULUMYAN

It is with regret that I find myself in deep disagreement with the Grand Chamber judgment in the present case and cannot subscribe to either the reasoning or the conclusions of the majority for several reasons.

Firstly, by failing to address the question of the international legal personality of the Republic of Nagorno-Karabakh ( NKR – questions of self-determination and statehood) the Court has oversimplified the legal issue at hand. I believe that in determining that the alleged violations came within the jurisdiction of Armenia the Court has confused two completely different concepts of international law – jurisdiction and attribution – and has effectively created an amalgamation of the two concepts. In so doing the Court has indirectly lowered to an unprecedented level the threshold for the responsibility of States for the acts of third parties, and has also contributed to the fragmentation of international law.

Secondly, in my view the evidence before the Court was not sufficient to discharge the high evidentiary burden that must be applied in this kind of sensitive case. Furthermore, the way in which the Court dealt with the admissibility and evaluation of the evidence was unacceptable and was an unfortunate case of the application of different standards in different cases. I find it hard to accept the majority ’ s selective approach regarding the resolutions of international organisations – accepting those favourable to the applicants and the third - party intervener , while completely ignoring those favourable to the respondent State.

I will set out my own views here on some of the significant issues in order to clarify the grounds for my dissent.

Issues of Statehood and Self-Determination of Peoples: Status of the NKR under International Law

1. The Court failed to touch even slightly upon the issue of the status of the NKR. This issue is of primary importance, in my opinion, given the different rules of attribution and different standards for engaging the responsibility of States that apply in cases of actions by non-State actors and groups , on the one hand , and States (whether recognised or unrecognised) , on the other.

2. Thus, a State providing financial and any other form of assistance to another State would not be responsible for the acts of the latter, but only for the aid and assistance provided (Article 16 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 ARS”), Report of the Commission to the General Assembly on the w ork of its f ifty- t hird s ession, Yearbook of the International Law Commission (ILC) , 2001 , vol. 2, p. 26) , unless of course it is proven that the latter State acted under the direction and control (ASR, Article 17) or under the coercion ( A RS , Article 18) of the former, which is extremely hard to prove. According to the ILC, “ the term ‘ control s ’ refers to cases of domination over the commission of” conduct, whereas the term “direct s ” does not imply “mere incitement or suggestion but rather connotes actual direction of an operative kind” (Commentaries to the ARS , Yearbook of the International Law Commission , 2001, vol. 2, p. 69).

3. Thus, if the NKR is a State , any aid and assistance provided to it by Armenia would not put the territories controlled by the NKR under the jurisdiction of Armenia, unless it is shown that the acts carried out by the NKR are dominated and are under the operative direction of Armenia.

4. It is important to differentiate between the present case and other situations previously examined by the Court, in order to show why the issue of status matters now whilst it did not really matter in earlier cases. Thus, in the situation concerning the so-called “Turkish Republic of Northern Cyprus ” ( the “ TRNC” ), there were United Nations Security Council R esolutions expressly “deploring” the declaration of independence of the “ TRNC ” and calling it “legally invalid”, and “condemning” the secession of the “ TRNC ” in general, and calling upon the international community to refrain from recognising it (Resolution 541 (1983) , 18 November , 1983 S/RES/541; Resolution 550 (1984), 11 May 1984 , S/RES/550).

5. In the Cyprus cases there was simply no need to determine the status of the “ TRNC ” . The latter ’ s status had already been determined by the Security Council, which had qualified it as an illegal regime. The status of the “ TRNC ” could play no role in the determination of the responsibility of Turkey; it simply had no legal significance.

6. The situation here is completely different , however. The UN Security Council has never declared the Nagorno-Karabakh movement legally invalid. Furthermore, the mere fact that the peace process is ongoing also suggests that the issue of the status of the NKR has thus far remained open and remains a matter of political negotiation (see paragraph 29 of the present judgment).

7. Accordingly, the lack of international condemnation and invalidation of the NKR and its declaration of independence means that its international recognition as a State in the future is also a possible option. That said , an important issue here is the definition of statehood.

8. According to the classic formulation of statehood under the Montevideo Convention on the Rights and Duties of States, a State

“as a person of international law should possess ... a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states” (Art icle 1, 26 December 1933, vol. 165 , L eague of Nations Treaty Series 19).

9. That definition of statehood is widely accepted by international scholars (S. Rosenne, “The Perplexities of Modern International Law” , Collected Courses of the Hague Academy of International Law , vol. 291 (2001), p. 262; A.A.C. Trindade, “International Law for Humankind: Towards a New Jus Gentium”, Collected Courses of the Hague Academy of International Law , vol. 316 (2005), p. 205), by different international institutions (Report of the Working Group on Jurisdictional Immunities of States and their Property, Annex to the Report of the ILC on the w ork of its fifty-first s ession, A/54/10 (1999), p. 157) and even by courts ( Deutsche Continental Gas ‑ Gesellschaft v. Polish State , [1929] ILR, vol. 5, p. 13). Furthermore, States have consistently and uniformly invoked these criteria when determining their policies of recognition ( see, for example, Security Council official records , 383rd Meeting , 2 December 1948 , S/PV.383).

10. Thus, the NKR possesses a government, a permanent population and is capable of entering into relations with other States , which is proven by the fact that the NKR does in fact have representations in a number of States. The NKR also controls territory; the central issue, however, is whether the NKR is entitled to all or at least part of that territory. And it is in this respect that the issue of self-d etermination becomes important.

Relevance of the right to self-determination of peoples

11. The Court ’ s determination for the NKR to be highly integrated with Armenia is effectively an intervention in the determination of the status and legal personality of the NKR, something that even the Security Council has abstained from doing.

12. Notably, and as indicated above, the declaration of independence by the NKR has never been criticised or invalidated by the Security Council, unlike similar declarations in Southern Rhodesia, northern Cyprus and the Republika Srpska.

13. In this respect , the interpretation by the International Court of Justice (ICJ) of the Security Council ’ s approach to certain declarations of independence, expressed in its Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (“ Kosovo A dvisory O pinion ” , ICJ Reports 2010 , § 81 ), is of central relevance. In that opinion the ICJ indicated as follows .

“Several participants have invoked resolutions of the Security Council condemning particular declarations of independence: see, inter alia , Security Council resolutions 216 (1965) and 217 (1965), concerning Southern Rhodesia; Security Council resolution 541 (1983), concerning northern Cyprus; and Security Council resolution 787 (1992), concerning the Republika Srpska.

The Court notes, however, that in all of those instances the Security Council was making a determination as regards the concrete situation existing at the time that those declarations of independence were made; the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character ( jus cogens ). In the context of Kosovo, the Security Council has never taken this position. The exceptional character of the resolutions enumerated above appears to the Court to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council . ”

14. Thus, those UN Security Council R esolutions examined by the ICJ were manifestations of the doctrine of collective non-recognition, that is situations where the S ecurity Council calls upon the international community to refrain from recognising certain new entities as States, given that breaches of fundamental international obligations were involved during the process of their establishment ( see, for example, J. Dugard and D. Raič, “The R ole of R ecognition in the L aw and P ractice of S ecession”, in Secession: International Law Perspectives (M. G. Kohen ed., Cambridge, Cambridge University Press , 2006), pp. 100-01).

15. No such determination of illegality of conduct or call to the international community to refrain from recognition of the NKR was made in UN Security Council R esolutions 822, 853, 874 and 884 (1993) , concerning the NKR conflict. Thus, the Security Council has left open the possibility for the NKR to become a full and legitimate member of the international community and to exercise its right to self-determination.

16. Despite that, and in stark contrast to the UN Security Council ’ s approach, the Court has now introduced qualifications that are, on the contrary, detrimental to the exercise of that right , and it thus fails to recognise that the creation of the NKR and its endurance was not only an expression of the will of the local population, but also done against the background of discriminatory policies of Azerbaijan.

17. In this respect the recent developments of the right to self-determination of peoples and the manifestation of that right, which has increasingly been labelled a right to “remedial secession”, are of primary importance.

18. The concept of “ remedial secession ” denotes the possibility for certain cohesive groups of people to secede from a State in cases of gross human rights violations and repression by the latter or of incapability of materialising their right to self-determination internally (C. Tomuschat, “Secession and Self-Determination”, in Secession: International Law Perspectives (M. G. Kohen ed., Cambridge, Cambridge University Press 2006), p. 23-45 ; A. Cassese, Self-Determination of Peoples: A Legal Reappraisal , Cambridge, Cambridge University Press , 1995, p. 120).

19. The concept is based on an a contrario reading of the “safeguard clause” of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations ( G eneral Assembly Resolution 2625 (XXV) , 24 October 1970) (“the Friendly Relations Declaration”), which was described by the ICJ as being reflective of customary international law ( Kosovo A dvisory O pinion , cited above, § 80) and is widely accepted by prominent scholars to constitute an authoritative interpretation of the UN Charter (G. Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of Sources of International Law , Aalphen an den Rijn, Sijthoff & Noordhoff , 1979, pp. 73-88 , and I. Brownlie, Principles of Public International Law , 7 th ed., New York, Oxford University Press , 2008, p. 581).

20. The Declaration states as follows:

“Nothing in the ... paragraphs [addressing the right of peoples to self-determination] shall be construed as authorizing or encouraging any action which 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 as to race, creed or color.”

21. The same “safeguard clause” is also used in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on 25 June 1993 (A/CONF.157/23, § 2 ). The “safeguard clause” suggests that in situations where States do not adhere to the conduct described in the second part of the clause, they do not merit protection of their territorial integrity (D. Murswiek, “The Issue of a Right of Secession – Reconsidered”, in Modern Law of Self-Determination (C. Tomuschat ed., Dodrecht, Martinus Nijhoff Publishers , 1993, p p . 21-39 ).

22. The understanding that violations of human rights create situations where a persecuted group becomes entitled to create its own statehood is further supported by a significant number of decisions of international and domestic institutions.

23. That right was implied in Kevin Mgwanga Gunme et al v. Cameroon ( Communication No. 266/03 (2009), § 199) and in Katangese Peoples ’ Congress v. Zaire ( Communication No. 75/92 (1995)) of the African Commission on Human and Peoples ’ Rights, which indicated that the obligation to “exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire” exists absent “concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question” ( Katangese Peoples ’ Congress v. Zaire , cited above , § 6).

24. The same approach was also reflected in the concurring opinion of Judges Wildhaber and Ryssdal in Loizidou v. Turkey ( (merits), 18 December 1996, Reports of Judgments and Decisions 1996 ‑ VI ) and in Reference r e Secession of Quebec of the Supreme Court of Canada, which proposed that “when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession” ([1998] 2 SCR 217, § 134).

25. This right to remedial secession has further been acknowledged by many prominent scholars of international law, such as Thomas Franck (“Postmodern Tribalism and the Right to Secession”, in C. Brölmann et al. (ed.), Peoples and Minorities in International Law (Martinus Nijhoff Publishers 1993, pp. 13-14) or James Crawford ( The Creation of States in International Law , (2 nd ed., Oxford, Clarendon Press , 2006, p. 126).

26. The approach is also evident in the practice of States. Thus, only two years after the adoption of the Friendly Relations Declaration , forty-seven States had recognised the State of Bangladesh on account of the violence directed against the local population, despite the fact that Pakistan recognised it only in 1976. Today, 110 States recognise the State of Kosovo.

27. Thus, the right to remedial secession is now widely acknowledged in international instruments, judgments and decisions of international courts and institutions, the practice of States and the doctrine of international law.

28. Given the above, it must be noted that the anti-Armenian violence in Sumgait in February 1988, the persecution of Armenians in Baku in January 1990, the so-called “Operation Ring” in spring 1991, resulting in the emptying of more than twenty Armenian villages, were all events predating the declaration of independence of the NKR, which was simply a logical response. It is noteworthy that all these events have been recognised by independent human rights organisations, E uropean U nion and U nited N ations bodies ( see, for example, Human Rights Watch, “ Azerbaijan: Seven Years of Conflict in Nagorno-Karabakh ” (Human Rights Watch , 1994) , and Consideration of reports submitted by states parties under a rticle 18 of the Convention on the Elimination of All Forms of Discrimination against Women: Armenia , Committee on the Elimination of Discrimination against Women ( CEDAW/C/ARM/1/Corr.1, 11 February 1997).

29. The continuing policies of ethnic discrimination by Azerbaijan have also been recognised by the Committee on the Elimination of Racial Discrimination (Concluding Observation of the CERD: Azerbaijan, CERD/C/AZE/CO/4 , 14 April 2005), by the European Commission against Racism and Intolerance of the Council of Europe in all three of its reports on Azerbaijan (adopted respectively on 28 June 2002, 15 December 2006 and 23 March 2011 ) , as well as by the Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities (Opinion on Azerbaijan, ACFC/INF/OP/I(2004)001 (22 May 2003) , and Second Opinion on Azerbaijan, ACFC/OP/II(2007)007 (9 November 2007)).

30. The State-level propaganda of ethnic hatred towards Armenians is further confirmed by the continuing destruction of Armenian cultural heritage – of which the destruction of the Jugha necropolis was the most barbaric manifestation – and the glorification of the Azerbaijani officer who was convicted of murdering an Armenian colleague in Hungary in his sleep.

31. It is against this background that the issue of self-determination of the people of the NKR should be viewed, since the self-determination of the people of the NKR has been the sole means of ensuring their protection from those discriminatory policies, and it is this background that the Court has completely ignored when exercising its jurisdiction. This background is, notably, a human rights background and the Court, whose function is to protect human rights, has in fact produced a judgment that, as I have indicated above, is effectively detrimental to the exercise of the right to self-determination and therefore to the fundamental rights and freedoms of the people of the NKR.

Exhaustion of Domestic Remedies

32. An issue closely related to the question of the NKR ’ s international legal personality is the question of the exhaustion of domestic remedies. In dismissing the Government ’ s objection of non-exhaustion, the Court stated that it was not realistic that any possible remedy “in the unrecognised ‘ NKR ’ entity” could in practice afford displaced Azerbaijanis effective redress (see paragraph 119 of the present judgment). This approach conflicts with the established case-law.

33. It is noteworthy that in Demopoulos and Others v. Turkey ( ( dec.) [GC], nos. 46113/99 and 7 others , ECHR 2010 ) , the Court acknowledged the fact that even de facto entities may have effective remedies, and that it was the particularities of the remedies at hand that made them ineffective. Thus, the Court found that there was no direct, or automatic, correlation between the issue of recognition of the self-proclaimed State and its purported assumption of sovereignty over northern Cyprus on an international plane and the application of Article 35 § 1 of the Convention ( ibid. , § 100). On the basis of the Court ’ s findings in Demopoulos and Others , it has to be noted that the fact that the sovereign status of Nagorno-Karabakh is not recognised by any State does not exempt the applicants from the duty to exhaust domestic remedies within the NKR.

34. There is absolutely no doubt that there is an established and working judiciary within Nagorno-Karabakh. However, the applicants had never made any attempt to lodge a claim before the courts of the NKR and had failed to provide any evidence that there were insurmountable obstacles to bringing proceedings in those courts. The fact that the applicants live outside the territory of the NKR provides no grounds for justifying their failure to pursue such remedies.

35. Borders, whether de facto or de jure , are not an obstacle to the exhaustion of domestic remedies. Thus, in Pad and Others v. Turkey ((dec.), no. 60167/00, § 69 , 28 June 2007) concerning Iranian villagers shot in the border area by Turkish security forces, the Court upheld the Government ’ s objection on grounds of non-exhaustion of domestic remedies and noted that, given the applicants ’ ability to instruct a lawyer in the United Kingdom, they could not claim that the judicial mechanism in Turkey – a foreign country – was physically and financially inaccessible to them. The fact that the applicants in the present case have successfully instructed English lawyers to act on their behalf shows that their abilities were not limited.

36. The sole obstacle to the applicants ’ ability to exhaust the remedies available to them in the NKR has been created by their own g overnment. Azerbaijan has announced its intention to “punish” people who visit the NKR without its permission by declaring them “ persona non grata ” and denying them further entry into Azerbaijan. Amongst those on the “black list” are members of parliament from the United Kingdom , Germany, France, Russia, as well as several other European countries, and others from as far away as Australia and Uruguay. This may be the reason why the applicants ’ lawyers did not try to lodge a claim before the courts of the NKR.

37. The majority ’ s conclusion that the Government failed to discharge their burden of proving that there was an appropriate and effective remedy available to the applicants is the result of procedural deficiencies.

As can be seen from paragraphs 113 to 1 14 of the present judgment, the Government discharged their burden of proving that there was an effective remedy available to the applicants, but the President of the Court decided that the additional documentary material, including two judgments acknowledging the ownership rights of two displaced plaintiffs of Azeri ethnicity and delivered by the First Instance Court of the NKR, should not be included in the case file.

38. Absent any explicit provisions relating to the admissibility of evidence in the Convention, the Court, as a rule, takes a flexible approach, allowing itself an absolute discretion when it comes to the admissibility and evaluation of evidence. There are no procedural barriers to the admissibility of evidence, as the Grand Chamber of the Court reiterated in Nachova and Others v. Bulgaria ( [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII ). In some cases the Court has accepted new evidence even after the deliberations on the merits before the delivery of a judgment (see Vučković and Others v. Serbia (preliminary objection) [GC], no s . 17153/11 and 29 others , 25 March 2014, and W.A. v. France (dec.), no. 34420/07, 21 January 2014).

39. By a letter dated 7 June 2013 , the Deputy Grand Chamber Registrar informed the Government Agent of the respondent State that the President of the Grand Chamber had decided to obtain the parties ’ oral submissions. Moreover, the “Notes for the guidance of persons appearing at hearings before the Court” enclosed with the a bove- mentioned letter enabled the parties to rely on “any additional documentary material” with the only condition being that it “should be submitted at least three weeks before the hearing or be incorporated verbatim in their oral submissions ” (emphasis added) . Following the Registrar ’ s instruction on the possibilities of submitting evidence, the Government relied, in their oral submissions, on two judgments (incorporated verbatim) delivered by the NKR courts in favor of two Azeris.

40. Bearing in mind the Court ’ s established practice on the admissibility of evidence submitted before the Court, and taking into account the importance of the two above-mentioned judgments for the consideration of the present case and the fact that this evidence was submitted, at least orally, by the Government in due time, the refusal to receive crucial evidence on the grounds that the documents were submitted late is not convincing and gives the impression that the Court simply suppressed evidence which was inconvenient for its conclusions. I hope that this is the first and last time that the Court of Human Rights itself fails to guarantee that justice be seen to be done.

41. Given the above considerations, I cannot agree with the opinion of the majority of the Grand Chamber that the applicants were not required to exhaust domestic remedies.

Establishment of the facts

42. In the vast majority of cases the Court has been able to establish the facts from the documentary evidence before it. In view of the Convention requirement to exhaust domestic remedies prior to bringing an application before the Court, in most cases the significant facts are no longer in dispute following the decisions of the domestic courts. In exceptional situations, as in the present case, where the domestic authorities were unable to carry out a fact-finding function owing to the applicants ’ failure to bring their claims before them, it falls to the Court to establish the circumstances of the case. It is evident that there were fundamental factual disputes between the parties in the present case, which could not be resolve d by considering the submitted documents alone. The applicants submitted dozens of contradictory statements and evidence whose reliability can be considered only by means of investigatory measures. It is worth observing that the applicants made contradictory statements regarding the size of the land and homes in question and later submitted technical passports with substantially different figures.

43. Moreover, the fact of the existence of Armenian armed forces on the territory of the NKR cannot be substantiated by the Court on the basis of the hearsay evidence referred to by the applicants ’ representatives and by dubious expert opinions. F act-finding was t herefore a precondition for , and an integral par t of, any binding legal determination regarding the existence or non-existence of Armenian military control over the NKR. The only way for the Court to establish the facts of the case was therefore either to carry out a fact-finding mission , as in Loizidou (cited above) and IlaÅŸcu and Others v. Moldova and Russia ( [GC], no. 48787/99, ECHR 2004 ‑ VII ) or hear evidence from witnesses and conduct an investigation , as in Georgia v. Russia (I) ( [GC], no. 13255/07, ECHR 2014 ) . Article 19 of the Convention obliges the Court “ [ t ] o ensure the observance of the engagements undertaken by the High Contracting Parties”, which requires the comprehensive scrutiny of each application ’ s admissibility and merits. Where the facts cannot be established on the basis of the parties ’ written submissions, the right of the Court to initiate a fact-finding mission turns into a legal obligation to do so in order to be in line with its obligations under the Convention.

44. A fact-finding mission was necessary not only for a decision regarding the admissibility of the case, but also for the consideration of the merits. The Court cannot come to any reasonable decision as to the size of the house s and the land allegedly owned by the applicants purely on the basis of the contradictory documents submitted by them. In particular, concerning Mr Chiragov ’ s alleged property, his representatives submitted that he used to have a house with a surface area of 250 sq. m. However, in the document submitted to prove the fact of his ownership of the house it is stated that his house had a surface area of 260 sq. m. On the other hand, in the technical passport relating to the house it is stated that the house had a surface area of 408 sq. m. The Court ref erred in this regard to Article 15 § 7 of the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 28 June 20 05, E/CN.4/Sub.2/2005/17, Annex, see paragraph 136 of the present judgment ), which is not relevant because it concerns the non-existence of documentary evidence, whereas here we have conflicting documents concerning the same subject.

45. In this respect, in so far as the facts are concerned, the Court had no alternative but to go through the fact-finding procedure or take other investigative measures set out in Rule A1 of the Annex to the Rules of Court in administering proper and fair justice. Without carrying out one of these procedures the Court was not able to come to a definitive conclusion, at least in assessing the victim status of the applicants (admissibility criteria) and the merits of the case.

46. It is also strange, to say the least, that the Court has accepted the resolutions of some of the international organisations as fact, while completely ignoring others. In this respect it is important to note the “ Report of the OSCE Fact-Finding Mission (FFM) to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh ” which states very clearly that the “FFM found no evidence of the involvement of the Government of Armenia in the Lachin settlement” . The UN Security Council R esolutions which I am going to cite below are yet another group of documents which are important and which, although noted in the judgment, are ignored in the Court ’ s evaluation.

Jurisdiction and Attribution

47. Central to the present case is the question whether the applicants are to be regarded as being within the jurisdiction of Armenia for the purposes of Article 1 of the Convention. In my opinion, the previous jurisprudence of the Court on the issue of extraterritorial jurisdiction was in line with the generally accepted standards of responsibility of States for international ly wrongful acts as the y have been codified by the ILC or applied and interpreted by the ICJ. The opinion expressed by the Court in the current case, however, is a new and – in my opinion – regrettable tendency.

48. The fundamental issue here lies in the method according to which the Court deems Armenia ’ s jurisdiction to be established. As the Court states in paragraph 169 of the present judgment , it is not referring to the agency exception, but to the “effective control over territory” exception. The Court indicates:

“Instead, the issue to be determined on the facts of the case is whether Armenia exercised and continues to exercise effective control over the mentioned territories and as a result may be held responsible for the alleged violations . ”

49. The crux of the judgment on the issue of jurisdiction is in paragraph 180, where the Court states as follows:

“[B]ased on the numerous reports and statements presented above, it finds it established that the Republic of 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. This military support has been – and continues to be – decisive for the conquest of and continued control over the territories in issue, and the evidence, not least the [ 1994 military cooperation ] A greement, convincingly shows that the Armenia n armed forces and the ‘ NKR ’ are highly integrated . ”

Thus, according to the majority , this case – like Catan and Others v. the Republic of Moldova and Russia ( [GC], nos. 43370/04 and 2 others , ECHR 2012) – is a situation where the extraterritorial exercise of jurisdiction is based on the “effective control of an area” exception. How it is different, however, from other previous cases examined by the Court is that this control is allegedly exercised through “a subordinate local administration” (as I will indicate below, in the Cyprus cases such control was established on the basis of the direct involvement of the military forces of Turkey and not through “a subordinate local administration”).

50. The fundamental problem lies in the Court ’ s failure to distinguish situations where the control over the territory is established through “a subordinate local administration” from situations where control is established through “the Contracting State ’ s own armed forces”. And this is not simply a difference in fact; it is a difference in law, since both situations are concerned with different rules of attribution.

In Catan and Others (cited above) , the Court claimed that it did not deal with attribution at all, indicating that “the test for establishing the existence of ‘ jurisdiction ’ under Article 1 of the Convention has never been equated with the test for establishing a State ’ s responsibility for an internationally wrongful act under international law” ( ibid. , § 115 , and Jaloud v. the Netherlands ([GC], no. 47708/08 , § 154 , ECHR 2014 )). This, in my opinion, is a fatal oversimplification and the primary reason why the Court has come to the conclusion that Armenia is responsible for the events that have occurred in the territory of Lachin.

51. This oversimplification is also the primary reason why I cannot agree with the Court. I will try to explain exactly why below.

Jurisdiction cannot be established without attribution of conduct

52. In my opinion, the very concept of a “subordinate local administration” implies that the rules of attribution are necessarily involved ( see, for example, A. Cassese, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia”, European Journal of International Law , vol. 18 , no. 4, (2007), p. 658, f ootnote 17).

53. Control over a territory by a local administration, no matter how effective or obvious such control is, can have no consequences for the responsibility of a Contracting State unless the acts of that local administration are attributable to that State or – in the language applied by the Court – if that local administration is “subordinated” to the State. Absent such attribution (or “subordination”) , there is no control over the territory by the State and thus its jurisdiction cannot be established and, therefore, its responsibility cannot be involved.

54. In fact , attribution is also involved where control is exercised through “the Contracting State ’ s own armed forces”. The difference is only in the rule of attribution involved.

These rules of attribution are – of course – to be found in the ARS , which have been favoured by General Assembly Resolution 56/83 , 28 January 2002 , A/56/589) and have been widely accepted as reflecting customary law on the matter. In particular, the ARS have also been referred to by the Court in a number of cases ( see, inter alia , Blečić v. Croatia [GC], no. 59532/00 , § 48, ECHR 2006 ‑ III , and IlaÅŸcu and Others (cited above) , §§ 319-21 ).

55. Thus, where control over a territory is exercised through “the Contracting State ’ s own armed forces”, the rule involved is the attribution of “Conduct of o rgans of a State” (Article 4 of the ARS), whereas where control over a territory is exercised through “a subordinate local administration”, the rule involved is the attribution of “Conduct d irected or c ontrolled by a State” (Article 8 of the ARS).

56. Accordingly, attribution is always involved. The difference is that attribution of the conduct of armed forces of a State to that State is intrinsically implied, whereas attribution of acts of a local administration has to be proven and the threshold of the control required for such attribution has to be determined (given the ongoing debate on the matter in the doctrine of international law).

57. Thus, it would not be redundant to emphasise once again that the concept of “effective overall control” used by the Court in the Cyprus cases is a jurisdictional test and qualifies the level of control exerted by the State over territories outside its recognised borders, whereas the notions of “effective control” or “overall control” are attribution tests and refer to the State ’ s control over individuals, groups or entities ( see, for example, M. Milanovi ć , “State Responsibility for Genocide”, European Journal of International Law , vol. 17 , no. 3 (2006), p. 586).

58. The equation of the two concepts is also unacceptable and is an attempt to show the need to prove one factor rather than two.

It would be relevant to state here once again that , despite the special character of the European Convention on Human Rights as a human rights treaty (see, inter alia , McElhinney v. Ireland [GC], no. 31253/96, § 36, 21 November 2001 ) , the Court has indicated on a number of occasions that “the principles underlying the Convention cannot be interpreted and applied in a vacuum” and that the Court “must also take into account any relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine State responsibility in conformity and harmony with the governing principles of international law of which it forms par t ...” (see Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01, § 122 , 2 May 2007, emphasis added , and Bankovi ć and Others v. Belgium and O thers (dec.) [GC], no. 52207/99, § 57 , ECHR 2001-XII ).

59. Bearing that in mind, the approach applied by the Court in the present case is nothing but circumventing and turning a blind eye to the rules of general international law. This approach effectively results in the confusion and fusion of the notions of jurisdiction and attribution and the creation of a standard of responsibility which is unprecedented in the practice of international courts and tribunals and is exactly what the Court warned against earlier: the application of the Convention in a vacuum.

Earlier case-law of the Court is implicitly consistent with the differentiated application of rules of attribution and jurisdiction

60. As indicated above, the Court ’ s previous case-law on the issue of extraterritorial jurisdiction was, in my opinion, in line with the generally accepted standards of responsibility of States for international l y wrongful acts as the y have been codified by the I LC or applied and interpreted by the ICJ . Therefore, no support can be found for the Court ’ s current position in that jurisprudence.

Starting with the Cyprus cases, despite the fact that the Court has indicated on a number of occasions that a State ’ s effective overall control over a territory can be established through a subordinate local administration, until quite recently the Court had not had a clear-cut case where control c ould be established through such administration alone, and the Cyprus cases are not an exception. Indeed, in all cases examined by the Court, except for Catan and Others (cited above) , the Contracting State was directly involved either on account of its significant military presence (see Loizidou , cited above, § 56 , and Cyprus v. Turkey [GC], no. 25781/94, § 77, ECHR 2001 ‑ IV ) or through its direct involvement in the violations in issue (which is already a case of the “State agent authority” exception).

In this regard the Cyprus cases stand as an important guideline. It is true that in both Loizidou and Cyprus v. Turkey the Court indicated that “effective overall control over a territory” could be exercised through a subordinate local administration (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310 , and Loizidou (merits) , cited above , § 52). However, eventually such control was, in fact, established not on account of the control of the territory by the “ TRNC ” , but on account of the significant military presence of Turkey in northern Cyprus and their direct involvement in both the occupation of northern Cyprus and in preventing the applicant from gaining access to her property (see Loizidou (preliminary objections) , cited above, § 63). The Court found as follows in Loizidou (merits) , cited above, § 56:

“It is obvious from the large number of [Turkey ’ s] troops engaged in active duties in northern Cyprus ... that her army exercises effective overall control over that part of the island . ”

The Court then proceeded to conclude that Turkey ’ s responsibility for the acts of the “ TRNC ” was engaged, but that it was not the level of control over the “ TRNC ” that was decisive but the fact of direct control over the territory itself.

61. This means that the degree of control exercised over the subordinate local administration was not really important for the Court, since , irrespective of the degree of control over the “ TRNC ” itself , the fact that Turkey had direct control over the island through its own forces would engage Turkey ’ s positive and negative human rights obligations.

62. Thus, the relevant rule of the ARS applicable in these cases is the attribution of the “ Conduct of o rgans of a State ” (Article 4) .

“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.

2. An organ includes any person or entity which has that status in accordance with the internal law of the State. ”

Thus, the presence of the Turkish forces, whose conduct is obviously attributable to Turkey, was the means of establish ing control over the territory.

63. As the Court indicated in Cyprus v. Turkey ( cited above , § 77):

“Having effective overall control over northern Cyprus, [Turkey ’ s] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration ...”

Thus, that control was over the territory of northern Cyprus (a matter of jurisdiction) and not over the “ TRNC ” (a matter of attribution) and in that respect , whether that local administration survives through Turkey ’ s support or not, or what degree of control Turkey exercises over that administration are secondary issues, it is Turkey ’ s direct control over the territory that matters (and therefore the claim of the third - party intervener that these cases support the “overall control” test of attribution is without merit).

64. Thus, the Cyprus cases do not in fact provide a conclusive rationale for establishing a State ’ s indirect control over a territory through a subordinate administration either, since in those cases the subordinate local administration was not in fact the means of establishing effective overall control over the territory; the Turkish army was.

65. During the hearings , both the applicants ’ representatives and the representatives of the third - party intervener referred to the Court ’ s judgment in Ilaşcu and Others (cited above) as an example of State control exercised over a subordinate local administration.

66. I believe, however, that Ilaşcu and Others was not a case of effective overall control over a territory – either directly or indirectly – but a case of a State agent authority exception and therefore completely distinguishable and irrelevant.

67. Nowhere in the Court ’ s analysis in Ilaşcu and Others of Russia ’ s extraterritorial exercise of jurisdiction (§§ 379-94) can terms such as “effective overall control over a territory”, “puppet State” or “subordinate local administration” be found; these terms are used only in the Court ’ s general description of situations where a State ’ s extraterritorial jurisdiction can be established (examination of the law on the question of extraterritorial jurisdiction), and not where the Court applies the law to the facts of the case.

68. Thus, the Court ’ s reasoning was based on a causal connection between the acts of the Russian forces and the applicants ’ subsequent deprivation of liberty by the local administration. Although it did receive some political and military support from the Russian Federation, that support was not the decisive factor in determining Russia ’ s responsibility.

69. If Russia ’ s support to the Trans d ni e strian authorities had in itself sufficed to qualify the latter as a “subordinate local administration” through which Russia exercised effective overall control over the territory, there would have been absolutely no need to establish the direct involvement of the Russian forces in the arrest and subsequent treatment of the applicants in that case, since, as the Court has explained, the effective overall control over a territory engages the State ’ s responsibility for all events occurring on that territory irrespective of the State ’ s direct involvement, given that the controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Ilaşcu and Others , cited above , § 316, and Cyprus v. Turkey , cited above, § 77 ).

70. Thus, the Court did not indicate in Ilaşcu and Others that all the acts of the Trans d ni e strian authorities were attributable to the Russian Federation, but only that , on account of the support provided to those authorities , “the Russian Federation ’ s responsibility [was] engaged in respect of the unlawful acts committed by the Transdniestrian separatists , regard being had to the military and political support it gave them to help them set up the separatist regime and the participation of its military personnel in the fighting ” ( ibid ., § 382 , emphasis added ).

71. In terms of public international law, this is not an attribution of acts of the Transdniestria n authorities to the Russian Federation as such (which is tantamount to qualifying the Moldovan Republic of Transdniestria as a “puppet S tate”), but the establishment of a State ’ s responsibility for aiding and assisting another entity. Thus, Article 16 of the ARS on Responsibility of States for Internationally Wrongful Acts provides for the responsibility of States for “[a]id or assistance in the commission of an internationally wrongful act”. It stipulates as follows.

“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.”

72. Such responsibility cannot, however, be established in abstracto , but must be related to each and every specific act or violation in question, hence the requirement of Article 16 (a) that the aiding and assisting State must have “knowledge of the circumstances of the internationally wrongful act”. And the Court was obviously following that line of reasoning when it established the direct involvement of the Russian authorities in the detention of the applicants and emphasised their knowledge of the subsequent events in issue that took place after the applicants were handed over to the Transdniestria n authorities ( ibid., § 384, emphasis added ):

“... the events which gave rise to the responsibility of the Russian Federation must be considered to include not only the acts in which the agents of that State participated, like the applicants ’ arrest and detention, but also their transfer into the hands of the Transdniestria n police and regime, and the subsequent ill-treatment inflicted on them by those police, since in acting in that way the agents of the Russian Federation were fully aware that they were handing them over to an illegal and unconstitutional regime.

In addition, regard being had to the acts the applicants were accused of, the agents of the Russian Government knew, or at least should have known, the fate which awaited them . ”

73 . Thus, the Court did not conclude that the acts of the Transdniestria n authorities were attributable to the Russian Federation, which would be the logical consequence should those authorities be regarded as a “puppet State”, but only that the responsibility of the Russian Federation was engaged in relation to the specific acts, which is a language peculiar to the State ’ s responsibility for aiding and assisting ( ibid . , § 385):

“In the Court ’ s opinion, all of the acts committed by Russian soldiers with regard to the applicants, including their transfer into the charge of the separatist regime, in the context of the Russian authorities ’ collaboration with that illegal regime, are capable of engaging responsibility for the acts of that regime . ”

74. Thus, it is the accumulation of Russia ’ s collaboration with the Transdniestria n authorities (not control thereof), knowledge of the fate of the victims and the direct involvement of the agents of the Russian Federation in the events in issue that together engaged the responsibility of the latter. These elements are completely in line with the above-mentioned rule of State responsibility for aiding and assisting the commission of illegal acts.

75. Another important element here is the causal link between the acts of the agents of the Russian Federation and the subsequent treatment of the victims.

76. This was not defined by the Court for the first time in Ilaşcu and Others (cited above) , however, but in the earlier case of Soering v. the United Kingdom , from which the language in Ilaşcu and Others came (see Soering v. the United Kingdom , 7 July 1989, § 88, Series A no. 161 ):

“The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State ... It would hardly be compatible with the underlying values of the Convention that the ‘ common heritage of political traditions, ideals, freedom and the rule of law ’ to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed.”

77. The above wording used in Soering (cited above) clearly and manifestly shows that the mere fact that the responsibility of a State is engaged through certain acts has nothing to do with attribution. The contrary argument would bring us to the preposterous conclusion that the potential acts of the authorities of the United States of America were attributable to the U nited K ingdom . Thus, in Soering , too, we were in fact dealing with the responsibility for aiding and assisting.

78. In Ilaşcu and Others (cited above) , Russia’s responsibility was established on account of the cumulative combination of several factors: (1) direct involvement of Russian troops in the detention of the applicants, (2) the handing over of the applicants by the Russian troops to the Transdniestria n authorities and their knowledge of the fate of the applicants, and (3) support provided by the Russian authorities to Transdniestria . Therefore, in Ilaşcu and Others the responsibility of the State was established on account of its aid and assistance to the group perpetrating the illegal acts, while the threshold criterion of extraterritorial exercise of jurisdiction was established through the agency exception and by no means through the “effective overall control over a territory” exception, which is clear from the Court ’ s reliance on the causality between the acts of the Russian troops and the subsequent treatment and deprivation of liberty to which the applicants were subjected.

79. Therefore, Ilaşcu and Others , too, provides no support for the position of the Court expressed in the instant case, which is totally distinguishable. Absent any direct proof of the involvement of the Armenian forces in the deprivation of the applicants of their property or proof of huge numbers of those forces directly controlling the territories in issue, the only way of proving Armenia ’ s extraterritorial exercise of jurisdiction is to prove the subordination of the NKR to Armenia, whereupon the NKR must be the means of establishing the control over the territory.

80. At first sight a deviation from the said approach can be observed in Catan and Others (cited above) . In that judgment , the Court indicated that the case had nothing to do with attribution at all (§ 115). However, the Court then went on to conclude that “the ‘ MRT ’’ s [‘Moldovan Republic of Transdniestra’] high level of dependency on Russian support provides a strong indication that Russia exercised effective control and decisive influence over the ‘ MRT ’ administration during the period of the schools ’ crisis” ( ibid. § 122). Thus, unlike the wording used in the Cyprus cases, this is not control over the territory (jurisdiction), but control over an entity.

81. However, at the time Catan and Others (cited above) was being deliberated, the Court had already examined IlaÅŸcu and Others (cited above) . Thus, the findings of the Court can to a certain extent be explained by the inclination of the Court to apply the same standards for the protection of all human rights in the same geopolitical situation.

The standard of attribution to be applied

82. Having thus indicated that the issue of attribution is indispensable to the determination of the exercise of extraterritorial jurisdiction through a subordinate local administration, the next question to be answered is the standard of attribution to be applied, that is , the standard of attribution which must be used in order to determine whether the local administration is in fact subordinate or not, or in other words whether the local administration can be qualified as a de facto body of the respondent State.

83. When determining this standard, we must bear in mind that it is part of the general international law on State responsibility and therefore needs to be found in the practice of States. Another matter of which heed must be taken when determining that standard is the obligation of any international tribunal to avoid contributing to the fragmentation of international law, or rather a particular type of that phenomenon, where the same international legal concepts are interpreted in a different manner by different fora .

84. As the ILC has indicated in its report on fragmentation, there is a strong presumption against normative conflict in international law. The ILC has further specified that “[d]iffering views about the content of general law ... diminish legal security” and “put legal subjects in an unequal position vis-à-vis each other”, given that “[t]he rights they enjoy depend on which jurisdiction is seized to enforce them” (“Fragmentation of i nternational l aw: d ifficulties a rising from the d iversification and e xpansion of i nternational l aw”, A/CN.4/L.682, § 52).

85. That said , the uniformity of interpretation and application of general international law by different courts and other institutions stands as a prerequisite of international justice and legal order. Thus, bearing this consideration in mind, regard must also be had to the practice of other international institutions .

86. The general rule is described under the ARS, namely in Article 8 (“Conduct d irected or c ontrolled by a State”), which provides as follows :

“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 . ”

87. The pertinent question is therefore what kind of control must be exerted by a State in order to result in the attribution to it of the acts of persons or of a group of persons (or indeed of an entity having all the features of a State).

88. According to the ICJ ’ s reasoning in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America) ( Merits ) Judgment , ICJ Reports 1986 , § 115 ( emphasis added ) ,

“ [ p articipation of a State ] , even if preponderant or decisive, in the financing, organizing, training, supplying and equipping [the non-state-actors] ... and the planning of the whole of its operation, is still insufficient in itself, ... for the purpose of attribut[ion] ... [E]ven the general control by the ... State over a force with a high degree of dependency on it would not in themselves mean, without further evidence, that the [State] direct[s] or enforce[s] the ... acts ... For this conduct to give rise to legal responsibility of the [State], it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed . ”

89. It is noteworthy that the ICJ has never deviated from the “effective control” rule, applying it consistently in all similar cases. Thus, in Armed Activities on the Territory of the Congo (D emocratic R epublic of the Congo v. Uganda) , Judgment , ICJ Reports 2005, § 160 , the ICJ did not attribute the acts of the so-called Congo Liberation Movement (MLC) to Uganda, despite the established fact of Uganda ’ s financial support and training provided to the former, the decisive factor being that the MLC was not created by Uganda and that Uganda did not control the manner in which the assistance provided was being put to use .

90. In its most recent case relevant to the subject matter, the 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 , §§ 410- 11 , the ICJ yet again confirmed its approach, denying the attribution of acts of the Republi k a Srpska to Serbia and Montenegro, despite the military, financial and logistical support provided by Serbia to the former, the active exchange of military personnel between the two entities, which was far greater than any support provided by Armenia to the N KR , and despite the fact that many of the high-ranking military officials in the Republika Srpska maintained simultaneous positions in Serbia and actually retired in Serbia , and despite the fact that, unlike in the Nicaragua and Congo cases, the forces of the Republika Srpska were in fact created by Serbia ( see, for example, M. Milanovi ć , “State Responsibility for Genocide”, cited above , p. 598). In paragraph 400 of Bosnia and Herzegovina v. Serbia and Montenegro , t he ICJ noted as follows :

“It must however be shown that this ‘ effective control ’ was exercised, or that the State ’ s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations. ”

91. Thus, the practice of the ICJ – the primary judicial body dealing with the responsibility of States – in the area is absolutely consistent. However, an alternative claim has been raised by the third - party intervener that “overall control is sufficient”, and that issue must therefore also be addressed here.

92. The concept of “overall control” has been developed and applied by the International Criminal Tribunal for the f ormer Yugoslavia ( Judgment of the ICTY in Prosecutor v. Du ško Tadi ć , I C T Y -94-1-A, 15 July 1999, § 137).

93. However, the ICTY is not concerned with issues of State responsibility, but with issues of international criminal responsibility of individuals. Therefore, its primary purpose (or rather its sole purpose) when applying the “overall control” test was to determine the nature of the armed conflict in question, that is, to prove the involvement, if any, of Serbia and Montenegro in the conflict which was taking place on the territory of Bosnia and Herzegovina and not to determine the attribution of acts of local Serbian forces to Serbia.

94. Thus, the ICJ openly rejected any possible application of the “overall control” test with regard to issues of State responsibility (see Bosnia and Herzegovina v. Serbia and Montenegro , cited above , § 403). Thus, according to the ICJ, the “overall control” test can be applied, for example, when determining whether the conflict is international or not, but not in any case when dealing with issues of State responsibility ( ibid. , § 404). That said, the reference by the third - party interven er to the “overall control” test is, in my opinion, irrelevant.

95. Given the above, in my opinion determination as to whether Armenia exercises extraterritorial jurisdiction over the territory of Lachin is directly dependent on the issue of whether Armenia has effective control over the Nagorno-Karabakh forces, which, in turn, actually control the territory in issue.

Application of the effective - control test to the relations between the Republic of Armenia and the Republic of Nagorno-Karabakh

96. To sum up the effective - control test, as described above, its application requires proof of direction and enforcement of conduct by the State. It requires not only material assistance to be provided by the State, but also proof of control over the manner in which such assistance is put to use. Additionally, evidence to support the finding that the State itself has created the subject in issue may contribute to establishing the existence of effective control exercised over that subject by the State. None of the above, however, has been established in the present case.

97. What we do know is that (i) Armenia has been providing funds to the NKR, but has not in fact been the only State to do so; (ii) a few high ‑ ranking State officials have pursued political careers in Armenia after first doing so in the NKR; (iii) several State officials have made statements about the unity of the people of Armenia and the people of the NKR. These, in my opinion, hardly prove that the NKR is subordinate to Armenia.

98. The Court has found it to be established that Armenia and the All - Armenian Fund have provided financial assistance. Nothing in the case supports the claim that Armenia has in fact influenced in any way the method and manner in which that financial assistance has been used by the NKR.

99. However, before addressing that issue in more detail , one thing to be emphasised here and which the Court forgets is the reason why such assistance is being provided. What is not reflected in the judgment is the fact that this assistance is being provided to improve the inhuman conditions in which the people of the NKR find themselves as a result of the continuing blockade and military attacks by its only other neighbour – Azerbaijan.

100. The primary issue, however, is of course whether Armenia is capable of directing or has in fact directed the acts of the NKR. In my opinion, the relevant UN Security Council R esolutions and other UN documents are of major importance in assessing this matter.

101. Starting with the interpretation of the relevant UN Security Council R esolutions, it should be pointed out that these documents, like any other legal document, are subject to precise and strict rules of interpretation.

102. Such rules of interpretation are to be found in general international law. As has been indicated by the ILC, “[w]hen seeking to determine the relationship of two or more norms to each other, the norms should be interpreted in accordance with or analogously to the VCLT [Vienna Convention on the Law of Treaties] and especially the provisions in its articles 31-33 having to do with the interpretation of treaties” ( Report of the International Law Commission , Chapter XII , “ Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law ” , A/61/10, § 251).

103. Accordingly, these rules provide guidance for the interpretation of the Security Council Resolutions, which should therefore be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the R esolutions in their context and in the light of their object and purpose (Vienna Convention on the Law of Treaties, vol. 1155, 23 May 1969, Art icle 31).

104. On the other hand, however, the ICJ has drawn attention to the “differences between Security Council resolutions and treaties [which means] that the interpretation of Security Council resolutions also require that other factors be taken into account” ( Kosovo Advisory Opinion , cited above , § 94). Therefore, according to the ICJ ,

“ [t] he interpretation of Security Council resolutions may require the Court to analyse statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions” .

105. Thus, the relevant provisions of the UN Security Council Resolutions must also be interpreted in their context, taking into account all the developments – statements, reports and so on – that accompanied the Security Council deliberations at the time.

106. The first of the Security Council Resolutions on the matter – Resolution 822 of 30 April 1993 – expressly refers in its preamble to the “invasion of Kelbadjar district of the Republic of Azerbaijan by local Armenian forces ” (S/RES/822 (1993) , emphasis added ), and not by Armenia. The same distinction between Armenia and the local Armenian forces is apparent from the Note by the President of the Security Council, cited in the preamble of the R esolution, where the President, addressing the Council on behalf of the S ecurity C ouncil , draws a clear line of distinction between the issue of relations between Armenia and Azerbaijan and the hostilities on the ground (Note by the President of the Security Council, S/25539, 6 April 1993):

“The Security Council expresses its serious concern at the deterioration of the relations between the Republic of Armenia and the Republic of Azerbaijan, and the escalation of hostile acts in the Nagorny-Karabakh conflict, especially the invasion of the Kelbadjar district of the Republic of Azerbaijan by local Armenian forces.”

107. Yet another document that Resolution 822 (1993) refers to in its preamble – the report of the Secretary-General dated 14 April 1993 ( “ Report of the Secretary-General pursuant to the statement of the President of the Security Council in connection with the situation relating to Nagorny - Karabakh ” , S/25600, §§ 7 - 8) – clearly indicates that , while the regions of Armenia adjacent to the border were subject to shelling from the Azerbaijani side, no hostile actions in response were taken by Armenia itself .

“On his first field mission, from 9 to 10 April, the acting United Nations Representative in Armenia visited the southern provinces of Ararat and Goris. In s everal villages near the Azeri border the mission was shown evidence of substantial destruction, resulting from mortar shelling. While visiting the village of Khndzorask a mortar shell exploded only about 20 meters away from the United Nations vehicle, which was clearly marked as such. The mission also had to leave the village of Korndzor when tank fire began, apparently from the territory of Azerbaijan.

... on 12 April ... the United Nations Representative was able to carry out a reconnaissance, from Armenian airspace, of the border between the Republic of Armenia and the Kelbadjar district of Azerbaijan. No sign of hostilities, military movements or presence of the armed forces of the Republic of Armenia was observed.”

108. A follow-up speech made by the Permanent Representative of France after the adoption of Resolution 822 (1993) further confirmed this position. It emphasi s ed that the preamble of the Resolution reflected “a reasonable balance between acknowledging that tension exist[ed] between Armenia and Azerbaijan, and recognizing the localized nature of the fighting” (Provisional Verbatim Record of the Three Thousand Two Hundred and Fifth Meeting of the Security Council, S/PV.3205, 30 April 1993, p. 11). It was further noted that the clashes should be prevented from turning into a conflict between States – meaning Armenia and Azerbaijan ( ibid . ).

109. Thus, nothing in the text of Resolution 822 (1993) , the documents referred to therein or statements of the States P arties made in its respect, support s directly or indirectly the claim that the NKR forces were being controlled by Armenia and that Armenia exercised control over the region through the NKR forces. Moreover, at the time of adoption of the said R esolution , Lachin was already under the control of the NKR.

110. The same is true of the other three Security Council R esolutions. Resolution 853 of 29 July 1993 refers to the “Armenians of the Nagorny-Karabakh” as the party that was supposed to comply with both Resolution 822 and Resolution 853 ( S/RES/853 (1993) , § 9).

111. It further urged “the Government of the Republic of Armenia to continue to exert its influence to achieve compliance by the Armenians of the Nagorny-Karabakh region of the Azerbaijani Republic with its resolution 822 (1993) and the present resolution ...” ( ibid . ). The acknowledgement of influence, however, has nothing to do with de facto control. The wording – “continue to exert” – is thus unequivocal and can be interpreted only as follows: (1) Armenia had influence over the NKR; and (2) Armenia had exerted its influence over the NKR to achieve compliance.

112. Furthermore, in their follow-up speeches to the Resolution, members of the Secutiry Council – France, Russia, the United States of America, Brazil, Spain, Venezuela – referred clearly and unequivocal ly to the “Armenians of Nagorny ‑ Karabakh”, “Armenian community of Nagorny-Karabakh” or “local Armenian forces” (Provisional Verbatim Record of the Three Thousand Two Hundred and Fifty-Ninth Meeting, S/PV.3259, 29 July 1993). The only country to speak of Armenia ’ s involvement was Pakistan – a State that has to this day failed to recognise the Republic of Armenia.

113. Yet another document, referred t o in the preamble of Resolution 853 (1993) – the Report by the Chairman of the Minsk Conference on Security and Co-operation in Europe – further confirms the distinct political approaches present in the NKR and Armenia; according to this R eport, whilst the President of Armenia reconfirmed his support for the O SCE ( Organi z ation for Security and Co - operation in Europe ) Minsk Group timetable during the Chairmen ’ s visit to Yerevan, the position of the leaders in the NKR was completely different (“In Nagorny Karabakh I found a completely different attitude on the part of the local Armenian community leaders”, Report by the Chairman of the Minsk Conference on Security and Co - operation in Europe on Nagorny Karabakh to the President of the Security Council of 27 July 1993, S/26184, 28 July 1993, §§ 4 ‑ 5.) This is yet one more indication that Armenia and the NKR were not guided by the same political will.

114. UN Security Council Resolutions 874 (1993) and 884 (1993) are no different. Resolution 874 (1993) maintained the same line of distinction between the “conflict in and around the Nagorny Karabakh region ” and “tensions between the Republic of Armenia and the Azerbaijani Republic” ( 14 October 1993 , S/RES/874 (1993) , preamble), whilst Resolution 884 (1993) also used wording similar to that of Resolution 853 (1993) , calling upon “the Government of Armenia to use its influence to achieve compliance by the Armenians of the Nagorno-Karabakh ...” ( 12 November 1993 , S/RES/884 (1993) , § 2).

115. Thus , nothing in the four Security Council Resolutions supports the position that the Republic of Armenia exerted control over the NKR.

116. Another argument adduced in support of the claim of control of the NKR by Armenia is the so-called “exchange of officials” argument. In this respect it must first of all, and yet again, be noted that this is a factor applied by the ICTY in the context of the “overall control” test, namely, in determining the nature of a conflict and not in order to solve issues of attribution. The classic case in this regard is the Judgment of the ICTY in Prosecutor v. Tihomir Bla š ki ć (I C T Y -95-14-T, 3 March 2000), which dealt with the nature of the armed conflict between Bosnia and Herzegovina and the Croatian Defence Council of the so-called “Croatian Republic of Her c eg-Bosna”.

117. In Bla š ki ć , however, the fact that Croatian military personnel served in the Croatian Defence Council ’ s forces was not the sole factor determining the existence of overall control. In fact, the criteria of overall control were deemed by the Trial Chamber to be satisfied on account of the existence of a number of factors – these included, inter alia , (i) the exchange of personnel; (ii) the direct appointment of generals by Croatia; (iii) the fact that the personnel continued to receive wages from Croatia; (iv) the fact that they received direct orders from Croatia; and (v) their receipt of financial and logistic support ( ibid . , §§ 100-20).

118. None of this has been proven with respect to relations between the forces of Armenia and the NKR. Neither direct appointments from Armenia, nor wages coming directly from Armenia , nor orders coming from Armenia have been proven by the facts of this case. Instead, the Court is talking about a generalised concept of high integration.

119. Furthermore, in Bla š ki ć the exchange of personnel was circular in nature, with Croatian officers serving in the Croatian Defence Council for some time and then returning to serv e in the Republic of Croatia ( ibid ., § 115). In those circumstances , it was obvious that service in the Croatian Defence Council was simply part of their service in the forces of the Republic of Croatia and part of the latter ’ s political agenda. No such situation is present, however, in the case of the relations of Armenia and the NKR, and the few examples produced by the t hird -p arty i nterven er are not indicative of a political agenda of transfer ring State officials, but rather illustrate the peculiarities of the political careers of those few individuals, no matter how influential their positions.

120. Furthermore, th ese transfers ha ve only been carried out from the NKR to Armenia and not vice versa , so I fail to see how this can contribute to the determination that Armenia controlled the NKR, even if we apply and adhere to the “overall control” standards used by the ICTY.

121. Yet another factor which, in the opinion of the Court, proves the “high integration” of the forces of Armenia and the NKR and with which, once again, I cannot agree, relates to the statements of State officials.

Thus, as the Court indicates in paragraph 177 of the present judgment , “statements from high-ranking officials, even former ministers and officials, who have played a central role in the dispute in question are of particular evidentiary value when they acknowledge facts or conduct that place the authorities in an unfavo u rable light” ( see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 175, ECHR 2012 ). This rationale is taken word for word from the ICJ ’ s Nicaragua v. the United States of America judgment ( cited above , § 64).

122. In my opinion, however, the Court has applied the logic of the ICJ in a fundamentally different and incorrect manner.

123. The ICJ has used the statements of officials in evaluating claims relating to the facts ( such as whether the U nited States of America had sent support to the contras in Nicaragua or not) and not in evaluating claims about the law (whether the acts of the contras were attributable to the U nited S tates of A merica or not).

124. Thus, issues of jurisdiction, attribution of conduct, “high integration” of forces, subordination of a local administration, and so on, are issues of law which are to be determined by the Court on the basis of facts and not the statements of State officials. Such statements can be referred to only to prove facts, on which, in turn, the determination of legal matters can be based. Such determination cannot be based directly on general statements.

125. What the Court has further failed to take into account is that such statements can be guided by patriotic and internal, as well as external, political considerations. Thus, the ICJ also noted that it had “ to interpret the statements, to ascertain precisely to what degree they constituted acknowledgments of a fact” ( Nicaragua v. the United States of America , cited above , § 65, emphasis added ). However, I can see no such evaluation by the Court in this case.

126. In any event, such statements are also far from being a sufficient basis on which to establish that Armenia in fact controls and directs the actions of the NKR and that the NKR is a subordinate local administration installed by Armenia.

127. Thus, I conclude that the Court failed to interpret the statements in their context, and that it was also wrong to use such statements as direct proof of integration of the armed forces of Armenia and the NKR, instead of using them to prove facts, which, in turn, could be used to prove such integration.

128. Given the foregoing, I cannot concur with the Court ’ s determination that Armenia has jurisdiction over the territories controlled by the NKR and that Armenia is responsible for any alleged violations of human rights that may occur on those territories.