DISSE NTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

Table of contents

I. Introduction ( §§ 1-2)

1. The present judgment is a missed opportunity to address the most important problem of public international law at the beginning of the twenty-first century, namely the acknowledgment of a right to remedial secession in a non-colonial context. The core of this case concerns the international legality of the secession of the “ Republic of Nagorno-Karabakh” (the “NKR”) , following the independence of the Republic of Azerbaijan from the Soviet Union, and its consequences for the rights and obligations of alleged displaced persons from the new, seceded “Republic”, including the ir right to enjoy their property and family life in the district of Lachin and the ir obligation to exhaust the local remedies of the “ NKR ” [7] .

2. Adding to the complexity of these legal issues, the case has an extremely intricate factual basis, which has evolved over the last twenty years. The multiple weaknesses of the evidence presented by the parties, as well as the unfortunate rejection of both the taking of testimonial evidence and an on-site investigation by the European Court of Human Rights ( “ the Court ” ), only made it more difficult, indeed impossible, to establish most of the facts alleged by the parties. For that reason alone, and regardless of the legal problems related to the contested victim status of the applicants and the even more disputed jurisdiction of the respondent State over the territory where the alleged violations of the European Convention on Human Rights ( “ the Convention ” ) took place, it is my inner conviction that a finding on the merits is premature. A finding on the merits without a thorough evaluation of the core facts of the case, conveniently replaced by a sample of highly uncertain factual assumptions, runs the risk of not seeing the wood for the trees, or even worse, for some of the trees.

II. Non -exhaustion of domestic remedies ( §§ 3-12)

A. The constitutional and legal framework of the “ Republic of Nagorno-Karabakh” ( §§ 3-5)

3. The application fails already on the basis of the non-exhaustion of domestic remedies. Several reasons can be put forward to support this conclusion. First ly , there are no constitutional or legal provisions in the “ NKR ” which prohibit ownership of land or other property by people of Azeri or Kurdish ethnic origin . [8] Second ly , anyone enjoying legal residence status in the territory of the “ NKR ”, regardless of nationality, has the right to return there . [9] Thus, people of Azeri or Kurdish ethnic origin may return to their places of former residence and claim their plots of land and homes , as well as compensation for wrongful actions of the “ NKR ” army . [10]

4. Even accepting that the “ NKR ” has not been recognised by the international community, the domestic means of redress of any alleged breaches of human rights must be exhausted if they are available to the applicants in the territory of Nagorno-Karabakh or the surrounding districts, including Lachin. The so-called “Namibia exception” has been enshrined in the Court ’ s case-law, since the cases on the Turkish invasion of Cyprus, with the practical consequence that, when confronted with violations of Article 8 of the Convention and Article 1 of Protocol No. 1, the current and former inhabitants of a territory must exhaust the local remedies even in the case of a judicial system established by an unrecognised political regime, and even where they did not choose voluntarily to place themselves under its jurisdiction . [11] The State alleged to have breached its international obligation s must first be given the opportunity to redress the wrong alleged by its own means and in its own legal system . [12]

5. That being said, since there is no correlation between the international recognition of a State and Article 35 of the Convention, asking the applicants to exhaust domestic remedies in Nagorno-Karabakh evidently does not equate to recognition of the “ NKR ” . [13] The applicants have to exhaust the ava ilable remedies in the “ NKR ” simply because there is a judicial system operating de facto in that territory which could provide them with effective redress.

B. The available domestic remedies ( §§ 6-8)

6. As a matter of fact, the competent court of Lachin is available to entertain the applicants ’ complaints regarding restitution of property to internationally displaced persons of Azeri and Kurdish origin and compensation for deprivation of their property. The evidence of that availability was provided by the judge of the competent court of Lachin himself. The local judge unequivocally stated that, according to the legal framework of the “ NKR ”, he could order restoration of property and just satisfaction to the victims of any forced displacement. Since the factual authenticity and legal force of this evidence was not rebutted by the applicants, it cannot be ignored by the Court . [14] Nonetheless, no attempt was made to submit the applicants ’ complaints to the competent court.

7. Furthermore, in respect of the alleged refusal of the Nagorno ‑ Karabakh authorities to allow people of Azeri or Kurdish ethnic origin to return to their properties in Nagorno-Karabakh or the surrounding districts, it should be observed that no concrete instances were referred to of any persons who had been hindered from doing so. In any case, given the applicants ’ ability to instruct a lawyer in the United Kingdom, they could not claim that the judicial system in the “ NKR ” was physically and financially inaccessible to them . [15]

8. Thus, the majority ’ s brief justification of the dismissal of the Government ’ s objection is not at all convincing. Only two arguments are presented in paragraph 118 of the present judgment: the insufficiency of the domestic legal framework and the lack of domestic judgments on the exact issue here at stake. Furthermore, the majority denied the applicability of norms of “a general nature” concerning property to the applicants ’ claims, implying without any further explanation that the assessment of the facts of the case could not be based on these norms and thus assuming what had to be demonstrated. The logical fallacy incurred is patent. Circulus in demonstrando !

By so doing, the majority imposed their own assessment of domestic law, as if they were sitting as a first-instance court, without giving the domestic courts the opportunity to express their own views as to the application of domestic law to a novel legal issue, with possible systemic, major legal consequences in view of the estimated number of displaced persons . [16]

C. Preliminary conclusion: deviating from Cyprus v. Turkey ( §§ 9 ‑ 12)

9. A comparison of the present case with Cyprus v. Turkey ( cited above ) is revealing. In the inter-State case between Cyprus and Turkey, the Turkish Government presented a list of cases brought by Greek Cypriots in Turkish Cypriot courts, which included cases relating to trespass by other persons and unlawful cultivation of land belonging to Greek Cypriot plaintiffs in the Karpas area, and where the claims of the plaintiffs were accepted by the competent courts of the “Turkish Republic of Northern Cyprus” ( the “ TRNC ” ). The Cypriot Government argued that any remedies which might exist in Turkey or in the “TRNC” were not practical or effective for Greek Cy priots living in the government ‑ controlled area and that they were ineffective for enclaved Greek Cypriots, having regard to the particular nature of the complaints and the legal and administrative framework set up in the north of Cyprus. As regards the case ‑ law of “TRNC” courts referred to by the Turkish Government, the Cypriot Government claimed that it related to situations that were different from those complained of in the application, namely to disputes between private parties and not to challenges to legislation and administrative action. The fate that befell the Cypriot Government ’ s arguments is well known: the Court considered that the Cypriot Government had failed to rebut the evidence laid before the Commission that aggrieved Greek Cypriots had access to local courts in order to assert civil claims against wrongdoers, and held that no violation of Article 13 of the Convention had been established by reason of the alleged absence of remedies in respect of interferences by private persons with the rights of Greek Cypriots living in Northern Cyprus under Article 8 of the Convention and Article 1 of Protocol No. 1 . [17] The same should apply in the present case.

10. The Court should not have double standards, following one line of reasoning with regard to Cyprus and the opposite with regard to Armenia. In the Cypriot inter-State case, the Court did not require that the cases dealt with in the occupied part of Cyprus by “TRNC” courts should precisely concern restitution of property claims. It sufficed that civil claims of Greek Cypriots had been entertained by “TRNC” courts to conclude that these courts had to be regarded as affording remedies to be exhausted. The Government produced evidence in support of their contention that court remedies were available , and highlighted the successful claims brought by a number of Azeri and Kurdish litigants in Armenian courts and in “ NKR ” courts in civil and criminal cases . [18] This unrebutted evidence should have sufficed for the Government ’ s objection to be accepted.

11. The majority think it wise to close their assessment of the objection as to the non-exhaustion of domestic remedies with consideration of the “political and general context” (paragraph 119 of the present judgment ). Unfortunately, the Court embarks upon an unnecessary political assessment of the conflict, based on appearances (“appear to have intensified”). This exercise is not welcome, because the political overtone of some statements of the Court may give the impression, certainly unfounded, but in any case regrettable, that the Court is a player with its own political views on the Nagorno-Karabakh conflict.

12. In conclusion, I am not persuaded that any attempt to use the available domestic remedies was destined to fail. Had the Cyprus v. Turkey standard been observed, the majority would have had to conclude that there were domestic remedies in this case as well, in view of the domestic legal framework and the case-law presented by the respondent State. Furthermore, a domestic court is willing to entertain the applicants ’ complaints, and that could have happened, at least from 2006 onwards. Even if the Parliamentary Assembly of the Council of Europe has stated that Nagorno-Karabakh is one of the “geographical ‘ black holes ’ where the Council of Europe ’ s human rights mechanisms cannot be fully implemented” [19] , the existence of doubts as to the efficacy of domestic remedies does not absolve the applicant from the obligation to at least try to use them [20] . It is regrettable that this principle is not upheld in the present case. In other words, for the majority, subsidiarity plays no role in this part of Europe.

III. Lack of victim status ( §§ 13-16)

A. Victim status with regard to the applicants ’ houses ( § 13)

13. The applicants complained of having been deprived of the possibility of accessing and enjoying their homes and plots of land. I will deal with these issues separately.

Regarding the applicants ’ houses, the Court does not have the means to know if they existed and, if so, when, how and by whom they were destroyed. Assuming that these houses were destroyed in 1992, the related complaints would be outside the temporal scope of the Convention, since Armenia only ratified it ten years later. Anticipating this objection, the applicants invoke not only their right to property, but also the ir permanent emotional link to the area where they used to live. The proof of this emotional link, let alone of emotions felt over a period of more than twenty years, is a herculean task that the applicants failed to fulfil. No evidence was brought to the Court to support the assertion that the applicants had – and still have – a permanent emotional link to an area that they left more than twenty-two years ago. In any case, this purely fictional contention serves only to replace the unfounded complaint regarding the applicants ’ right to their homes by a vague “right to live in a village”, thereby widening the ambit of Article 8 well beyond its known borders [21] .

B. Victim status with regard to the applicants ’ plots of land ( §§ 14 ‑ 15)

14. Regarding the applicants ’ rights in respect of the plots of land in question, the situation is no clearer. The applicants acknowledged that they had never had a right to property under the Constitution of the U nion of Soviet Socialist Republics ( USSR ) , the Azerbaijan SSR Constitution and Article 4 (State ownership of land) of the 1970 Land Code, but only a right to use the land. They claimed that they still had this right in 2005, when they lodged their complaints, although they had left Lachin thirteen years earlier, in 1992. No sufficient evidence of such a right, either documentary or testimonial, exists in the file.

The grave discrepancies between the different versions of the applicants ’ complaints given at the various stages of the proceedings, and between those versions and the documentary evidence, the so-called technical passports that they themselves presented to the Court, have not been convincingly dissipated . [22] The information contained in the technical passports deviated considerably from that given in the application form s . For example, the first applicant originally claimed that he ow ned a house of 250 sq. m, but his “technical passport” concerns a house of 4 08 sq. m and a storehouse of 60 sq. m not previously mentioned. Similarly, the fourth applicant originally stated that h is house had an area of 165 sq. m, whereas the house described in the “t echnical passport” measures 448 sq. m to which, again, a previousl y unmentioned storehouse, of 75 sq. m, is added. The applicants have repeatedly been requested to submit further documentation on their property and to explain the divergences between the original statements and the “technical passports”. No further documentation on the property allegedly owned by the applicants has been submitted, as the applicants said they were unable to obtain further documents. As to the above-mentioned discrepancies, the applicants have stated that when they met their representative in Baku in early 2005, owing to the brevity of the meeting , they gave him only general information and it was agreed that they would submit copies of official documents by mail at a later date. Allegedly, the original statements were made from memory, without access to the documents, and it is therefore the information contained in the “technical passports” that should be taken into account.

The explanations offered by the applicants are not convincing, as their original statements were not general in nature but rather detailed in describing the extent of the property they claimed to own and the size of the land and houses. Also, the applicants ’ original claims – now changed through the submission of “technical passports” – had in some cases been confirmed in statements made by former neighbours. The testimony of witnesses, who were not cross-examined, can certainly not fill the gap in the applicants ’ evidence, having regard to such blatant contradictions.

15. The majority admit the “unclear” destiny of the houses and other moveable property claimed by the applicants . [23] With regard to the land, and in order to establish the existence of “private ownership” or “personal property” in respect thereof, the majority entangle themselves in a discussion on the interpretation of the 1970 Land Code and the 1983 Housing Code of the Azerbaijan SSR , without any reference to relevant national case-law or legal opinion. This virtual exercise becomes even more complex when the majority take in to account the subsequent process of privatisation of the land which occurred in May 1992. The majority ’ s dismissal of the legal force of this process, ultimately on the basis that it emanated from a non-recognised State and is therefore not legally valid, cannot be accepted, since it simply begs the question of the legitimacy of the privatisation process, based on the assumption of the international invalidity of all legislation of the “ NKR ” , and thus contradicting, as mentioned above, previous positions of the Court on the validity of legislation approved by non-recognised States. There is no evidence in the file to justify the assumption that the privatisation law was enacted in order to entrench an advantageous position of ethnic Armenians or to prejudice citizens of Azeri and Kurdish ethnic origin. Finally, the majority seem to be oblivious of the rights of bona fide secondary occupants, whose legal position is also protected by international law, and namely by Principle 17 of the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons ( Pinheiro Principles ) .

C. Preliminary conclusion: the limits of the Pinheiro Principles ( §§ 16)

16. When judicial authorities are confronted with undocumented property restitution claims from refugees and displaced people, a certain degree of flexibility may be required, according to the Pinheiro Principles . [24] Indeed, in situations of forced, mass displacement of people , it may be impossible for the victims to provide the formal evidence of their former home, land, property or even place of habitual residence. Nonetheless, even if some flexibility may be admitted in terms of the Court ’ s evidential standards in the context of property claims by particularly vulnerable persons, such as refugees and displaced persons, there should be reasonable limits to the flexible approach of the Court, since experience shows that mass displacement of people fosters improper property claims by opportunists hoping to profit from the chaos. Unlimited flexibility will otherwise discredit the Court ’ s factual assessment. Having failed to meet their burden of proof, the applicants relied on the Court ’ s flexibility, which in this case exceeded all reasonable limits as it accepted clearly contradictory testimonial and documentary evidence as being sound and reliable. Such blatant contradictions would strongly suggest a fabricated version of the facts, thus undermining the applicants ’ victim status.

IV. Lack of jurisdiction ( §§ 17-37)

A. The time frame of the Court ’ s assessment ( §§ 17-18)

17. Worse still than any other previously mentioned shortcoming of the applicants ’ case is the objection of a lack of jurisdiction raised by the respondent State. With the evidence gathered in the file, it cannot seriously be established that the Armenian State has effective control of the “ NKR ” territory. Nor can it be ascertained that the Armenian State has authority and control over State agents of that “Republic”. There is simply no factual basis for these conclusions as the file stands.

In the circumstances of the present case, the Court had to ascertain whether, as a matter of fact, Armenia exercised effective control over “ NKR ” territory and the surrounding districts, at least after 18 May 1992, that is , the date of the taking of Lachin and the flight of its inhabitants, and until the date of delivery of the present judgment [25] . As in Šilih v. Slovenia [GC] , no. 71463/01, 9 April 2009 , the military actions in the district of Lachin at the relevant time (18 May 1992) did not constitute “the source of the dispute”; instead, they were “the source of the rights claimed” by the applicants, and to that extent come under the jurisdiction ratione temporis of this Court . [26]

In actual fact, the majority did accept evidence related to events that occurred before the entry into force of the Convention in respect of Armenia, on the basis that “[e]arlier events may still be indicative of such a continuing situation” ( see paragraph 193 of the present judgment ). That evidence was assessed for the purpose of finding a “ continuing violation” as claimed by the applicants, but not for the purpose of “justification” for the deprivation of the applicants ’ rights as claimed by the respondent State ( see paragraph 197). I cannot accept this one-sided approach to the evidence.

18. In making such an assessment, the Court could take as its basis all the material placed before it and, if necessary, material obtained proprio motu . [27] Unfortunately, the shortcomings of the evidence provided by the applicants were not remedied by any initiative of the Court to gather other evidence of its own motion.

I will assess the objection as to the lack of jurisdiction on the basis of the available evidence, accepted by the majority, pertaining to different military, political, administrative and financial arguments advanced by the applicants to support the contention of existing effective control by Armenia over the “ NKR ”. For that purpose I will review one by one all the items of evidence relied upon by the majority in the judgment.

B. The assessment of evidence of a military nature ( §§ 19-25)

(i) The 1994 Agreement on Military Cooperation between the Governments of Armenia and the “Republic of Nagorno ‑ Karabakh” (“ t he 1994 Military Agreement”) (§§ 19-21)

19. The majority conclude that Armenia “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 t erritories in issue” ( see paragraph 180 of the present judgment ). In fact, the majority ’ s reasoning is built on a fallacious argumentum ad ignorantum , which draws a conclusion which is detrimental to the respondent State from the lack of information or incomplete or insufficient sources of information and the supposed impossibility of obtaining the necessary information (see paragraph 173: “and could not be expected to”), in order to argue that the applicants ’ allegations have been proven and the opposite allegations of the Government have not been proven. This reasoning subverts the basic principle of the onus probandi , by releasing in practical terms the persons who have laid charges from their burden of proof and placing on the respondent party the burden of reversing those charges.

20. Worse still, the highly speculative nature of the majority ’ s overall assessment of the military reality (see paragraph 174 of the present judgment : “it is hardly conceivable that”) shows clearly that the subsequent reasoning was aimed at proving a foregone conclusion. None of the subsequent three arguments of the majority adequately supports the said overall assessment, whose accuracy must be called into question. Neither the 1994 M ilitary A greement between Armenia and the “ Republic of Nagorno-Karabakh” (see paragraph 175), nor the various political statements made by international organisations (see paragraph 176) and by Armenian politicians (paragraph 177) may be accepted as “decisive evidence” of the military control of the “ NKR ” by Armenia.

21. The above-mentioned 1994 M ilitary A greement provides, among other things, for “mutual military exercises” and “mutual technical support”, including the possibility for Armenian conscripts to do their military service in the “ NKR ”. The letter of the A greement is clear, referring explicitly to the “right” of conscripts from Armenia to carry out their fixed-term military service in the Nagorno-Karabakh army, as well as the right of conscripts of the “ NKR ” to do their military service in the Armenian army ( see paragraph 4 of th e A greement). The letter of the agreement should not therefore be misinterpreted as imposing a legal obligation on Armenian conscripts to serve in the “ NKR ”. In addition, there is no evidence of a written or unwritten policy of mandatory military service of Armenian soldiers in the “ NKR ” . [28] The exact number of conscripts of the Armenian Republic performing their service in the “ NKR ” was not revealed by the Government, arguing that it was a military secret. Since the Rules of Court have no specific regime of non-disclosure of evidence to the parties, the respondent State is clearly absolved from the obligation to provide the Court with highly confidential evidence that might be sensitive for national and military security, and it may not be censured for failing to do so . [29] In any event, the respondent State did provide some indicative information with regard to the military presence of Armenian conscripts pursuant to Article 4 of the 1994 A greement (see paragraph 75 of the present judgment).

That being said, the relevant military agreement in itself contains nothing unique. Thousands of soldiers of other European nations have performed their military service on foreign ground, side by side with the local military forces, based on international agreements between the receiving States and the deploying States, some of them with the backing of the United Nations [30] . In none of these cases, including those where cooperation has involved a considerable amount of manpower and financial means, has any inference of control by the deploying State been drawn.

(ii) The language of international organisations ( §§ 22-23)

22. The majority admit that there is no “conclusive evidence” as to the composition of the armed forces that occupied and secured control of Nagorno-Karabakh and they even refer to the dubious language used in the UN Security Council Resolutions (see paragraph 173 of the present judgment ). In fact, the wording of UN Security Council Resolutions 822 (1993) of 30 April 1993 [31] , 853 (1993) of 29 July 1993 [32] , 874 (1993) of 14 October 1993 [33] , and 884 (1993) of 12 November 1993 [34] , and of General Assembly Resolution 62/243, of 14 Ma rch 2008 on t he situation in the occupied territories of Azerbaijan [35] , does not lend support to the applicants ’ contention of direct military involvement of the Armenian State in Nagorno-Karabakh, namely its occupation of Azerbaijani territory. No explicit reference is made to Armenian State army troop involvement in Azerbaijan or to the war as being an international armed conflict between Armenia and Azerbaijan, the texts referring only to “tensions between the Republic of Armenia and the Azerbaijani Republic”, which “would endanger peace and security in the region”.

Moreover, UN Security Council Resolution 884 (1993) “[c]alls upon the Government of Armenia to use its influence to achieve compliance by the Armenians of the Nagorny Karabakh region of the Azerbaijani Republic with R esolutions 822 (1993), 853 (1993) and 874 (1993)”. By so doing, it admits that the previous resolutions were addressed primarily to “the Armenians of the Nagorny Karabakh region” as the opposing party and not to the Armenian State, which is portrayed as a third party to the conflict between the Armenians of Nagorno-Karabakh and the State of Azerbaijan.

23. The majority also refer to the “package deal” proposal of July 1997 and the “step-by-step” approach of December 1997 of the Minsk Group of the Organi z ation for Security and Co - operation in Europe (OSCE) ( see paragraph 176 of the present judgment ), but omit important details of both proposals. Firstly, the “package deal” also included the following .

“The armed forces of Nagorny Karabakh will be withdrawn to within the 1988 borders of the Nagorny Karabakh Autonomous Oblast (NKAO; with the exceptions detailed below in Clauses VIII and IX) .

The armed forces of Azerbaijan will be withdrawn to positions agreed in Appendix I on the basis of the High Level Planning Group ’ s [ ‘ HLPG ’ ] recommendations . ”

Secondly, the “step-by-step” approach of December 1997 and the “common s tate deal ” proposal of November 1998 were even more detailed, with references to the Lachin corridor and the invasion of Armenia by Azerbaijan:

“ The armed forces of Nagorny Karabakh will be withdrawn to within the 1988 boundaries of the Nagorno Karabakh Autonomous Oblast (NKAO), with the exception of the Lachin corridor ... The armed foces of Azerbaijan will be withdrawn to the line s indicated in Appendix 1 on the basis of the HLPG ’ s recommendations, and will be withdrawn from all territories of the Republic of Armenia.”

These omitted aspects clearly show that the military situation in 1997 and 1998 was much more complicated than the oversimplified picture portrayed by the majority.

(iii) The political rhetoric of Armenian statesmen ( §§ 24-25)

24. The rhetorical political statements made by Armenian statesmen and public officials, to which reference is made in the judgment, should be approached with the utmost prudence, and this is for two reasons: firstly, because they are evidently not statements with legal force and , secondly, because when citing these political statements, hasty generalisations and faulty deductions are a strong temptation that should be resisted. The temptation becomes even stronger when these statements are de contextualised. An unfortunate example is the citation of the speech of Mr Serzh Sargsyan (see paragraph 178 of the present j u dgment ). It is misleading to quote only the words “our Army” and relate this to the Nagorno-Karabakh conflict, as if those words had been used by the speaker in that connection. They were not so used, as is confirmed simply by reading the speaker ’ s previous sentences.

The subsequent use of an ad hominem argument to discredit the opinion of Dr Bucur-Marcu, because of his supposed lack of independence (see paragraph 179 of the present judgment ), without questioning the expert in person or giving him at least the opportunity to respond to the Court ’ s doubts, further adds to the general picture of an ill-balanced assessment of the file ’ s evidence.

25. Ultimately, the majority do not have the slightest idea of how many soldiers from Armenia have allegedly served, or are still serving, in the “ NKR ” and the surrounding districts (paragraph 180 of the present judgment : “The Court need not solve this issue”). Yet these facts are crucial. A comparison with the Court ’ s relevant precedents could, here again, have shed some light on the matter under discussion. The present case cannot be assimilated with the Turkish invasion of Cyprus, where the Court did establish that a 30,000 - strong Turkish military force had invaded and occupied Northern Cyprus [36] , nor with the Transdniestrian conflict, where the Court also established that separatists were armed and supported by military units of the USSR 14th Army deployed in Transdniestria and which received direct orders from Moscow [37] . That is not the case here, where there was no evidence of Armenian units stationed in the “ NKR ”, massive transfer to “ NKR ” defence forces of arms and ammunition, direct orders from Yerevan to the forces on the ground in the “ NKR ”, or direct attacks organised by the Armenian military force in order to support the separatists.

C. The assessment of evidence of a political nature ( §§ 26-30)

(i) The official position of the United Nations ( § 26)

26. The majority argue that the “ NKR ” is not recognised formally by any U N member State, including Armenia (see paragraph 182 of the present judgment ) . [38] Moreover, the above-mentioned UN Security Council Resolutions (822 (1993), 853 (1993), 874 (1993), and 884 (1993)), and General Assembly Resolution 62/243 of 14 March 2008, referred to Nagorno-Karabakh as a region of the Azerbaijani Republic. However, none of the Security Council Resolutions were passed under Chapter VII of the Charter of the United Nations [39] and the General Assembly Resolution was approved with a very weak majority, a considerable number of abstentions and the opposition of the countries involved in the peace negotiation process, such as the United States of America , France and Russia [40] . The two previous General Assembly Resolutions, 48/114 of 23 March 1994 on e mergency international assistance to refugees and displaced persons in Azerbaijan [41] , and 60/285 of 7 September 2006 on t he situation in the occupied territories of Azerbaijan [42] , did not even refer to Nagorno ‑ Karabakh.

Furthermore, neither the UN Security Council nor the General Assembly identified the Armenian State as an “occupying force” or “aggressor”. The primary concern of both UN organs being the “serious humanitarian emergency in the region”, they called on all parties to refrain from all violations of international humanitarian law and allow unimpeded access for international humanitarian relief efforts in all areas affected by the conflict. They also reaffirmed the sovereignty and territorial integrity not only of Azerbaijan, but also of “all other States in the region”, and therefore condemned the “violations of cease-fire”, “hostilities”, “attacks on civilians and bombardments” and urged “all States in the region” to refrain from any hostile acts and from any interference or intervention which would lead to the widening of the conflict and undermine peace and security in the region.

(ii) The official position of the Council of Europe ( § 27)

27. In 1994 the Parliamentary Assembly welcomed the agreement signed on 26 July 1994 by the Ministers of Defence of Armenia and Azerbaijan and the C ommander of the army of Nagorno-Karabakh. Most important of all, it urgently called on Azerbaijan and Turkey “to immediately end the blockade of their means of communication with Armenia” and called on the parties to the conflict to organise the return home of refugees on an urgent basis and to respect minority rights as advocated in its Recommendation 1201 (1993) . [43]

In 1997 the Assembly stressed that the political settlement of the conflict had to be negotiated by all parties involved, drawing in particular on the following principles, based upon the 1975 Helsinki Final Act and the 1990 Charter of Paris for a New Europe : inviolability of borders; guaranteed security for all peoples in the areas concerned, particularly through multinational peacekeeping forces; extensive autonomy status for Nagorno-Karabakh to be negotiated by all the parties concerned; right of return of refugees and displaced persons and their reintegration respecting human rights . [44]

In 2002 the Assembly acknowledged and welcomed “the undeniable efforts Armenia has made to maintain regular high-level contacts with Azerbaijan and the positive influence that they have on the Armenians in Nagorno-Karabakh with a view to arriving at a suitable peaceful solution” . [45]

After stating that “[c]onsiderable parts of the territory of Azerbaijan [were] still occupied by Armenian forces, and separatist forces [were] still in control of the Nagorno-Karabakh region”, the Assembly reaffirmed, in 2005, that “independence and secession of a regional territory from a state [might] only be achieved through a lawful and peaceful process based on the democratic support of the inhabitants of such territory and not in the wake of an armed conflict leading to ethnic expulsion and the de facto annexation of such territory to another state” [46] . The Assembly reiterated that the occupation of foreign territory by a member State constituted a grave violation of that State ’ s obligations as a member of the Council of Europe and reaffirmed the right of displaced persons from the area of conflict to return to their homes safely and with dignity. It also referred to UN Security Council Re solutions 822 (1993), 853 (1993), 874 (1993) and 884 (1993) and urged the parties concerned to comply with them, in particular by refraining from any armed hostilities and by withdrawing military forces from any occupied territories. The Assembly observed that both Armenia and Azerbaijan had committed themselves upon their accession to the Council of Europe in January 2001 to using only peaceful means for settling the conflict, by refraining from any threat of using force against their neighbours. At the same time, Armenia committed itself to using its considerable influence over Nagorno-Karabakh to foster a solution to the conflict. The Assembly urged both g overnments to comply with these commitments and refrain from using armed forces against each other and from propagating military action. [47]

(iii) The official position of the European Union ( § 28)

28. The European Union has four principal policy tools with which it seeks to address the conflict over the Nagorno-Karabakh territory: the European Neighbourhood Policy, developed and implemented by the European Commission through Action Plans [48] , the EU Strategy for the South Caucasus [49] , the Negotiations of the EU-Armenia Association Agreement [50] and the EU Special Representative for the South Caucasus, who operates under a mandate of the Council of the European Union.

According to these instruments, the position of the E uropean U nion is that the occupation by one country of the Eastern Partnership of the territory of another violates the fundamental principles and objectives of the Eastern Partnership and that the resolution to the Nagorno-Karabakh conflict should comply with UN Security Council Resolutions 822, 853, 874 and 884 of 1993 and the OSCE Minsk Group Basic Principles, enshrined in the “Aquila” joint statements. The E uropean Union condemns the idea of a military solution and the heavy consequences of military force already used, and calls on both parties to avoid any further breaches of the 1994 ceasefire. It also calls for the withdrawal of “Armenian forces” from all occupied territories of Azerbaijan, accompanied by the deployment of international forces to be organised in accordance with the UN Charter in order to provide the necessary security guarantees in a period of transition, which will ensure the security of the population of Nagorno-Karabakh and allow the displaced persons to return to their homes, with further conflicts caused by homelessness thus being prevented. Finally, it calls on Armenia and Azerbaijan to undertake substantive measures for confidence-building, such as general demilitarisation and withdrawal of snipers from the L ine of C ontact . [51]

(iv) The official position of the Organi z ation for Security and Co-operation in Europe ( § 29)

29. The OSCE has committed itself to working to wards reach ing an agreement based, in particular, upon the principles o f the Helsinki Final Act : n on ‑ u se of f orce or t hreat of f orce, t erritorial i ntegrity, and the e qual r ights and s elf- d etermination of p eoples. This effort has been without success thus far.

In 1992 the Conference on Security and Co - operation in Europe (CSCE) created the Minsk Group, with the purpose of encouraging a peaceful, negotiated resolution to the Nagorno-Karabakh conflict. At the OSCE Lisbon Summit in 1996, the member States laid out three principles as a legal basis for the peaceful settlement process. The principles were as follows: territorial integrity of Armenia and Azerbaijan; legal status of Nagorno-Karabakh, defined in an agreement based on self-determination, which confers on Nagorno-Karabakh the highest degree of self-rule within Azerbaijan; and guaranteed security for Nagorno-Karabakh and its population, including mutual obligations to ensure the compliance by other parties with the provisions of the settlement.

The following year, the Minsk Group “package” on a comprehensive agreement on the resolution of the Nagorno-Karabakh conflict provided the following measures concerning the Lachin corridor .

“A. Azerbaijan will lease the corridor to the OSCE, which will conclude a contract on the exclusive use of the corridor by the Nagorny Karabakh authorities (with exceptions envisaged for transit, explained below in Clause E).

B. The OSCE will observe security conditions in conjunction with the Nagorny Karabakh authorities.

C. The boundaries of the Lachin corridor are agreed in Appendix II with due consideration of the recommendations of the HLPG.

D. The OSCE will observe the construction of roads around the town of Lachin. Upon the completion of road construction the town of Lachin will be excluded from the Lachin corridor. It will return to Azerbaijani jurisdiction (as part of the division zone) and its former inhabitants will be able to return.

E. Permanent settlement or armed forces are not allowed in the corridor, with the exception of permitted security force contingents. Representatives of official bodies, observers and OSCE peacekeeping forces have the right of transit subject to prior notification, as do Azerbaijani inhabitants of the region in transit from the Lachin district to the Gubatly district or vice versa. Territory of the Lachin district lying outside of the corridor forms part of the division zone.”

The Minsk Group “common s tate deal ” proposal of November 1998 included the following proposal concerning the Lachin c orridor:

“The question of the use of the Lachin corridor by Nagorny Karabakh for unimpeded communication between Nagorny Karabakh and Armenia is the subject of a separate agreement, if other decisions on a special regime in the Lachin district are not taken proceeding from the agreement between Azerbaijan and Nagorny Karabakh. The Lachin district must remain a permanently and fully demilitarized zone.”

The OSCE Minsk Group Fact-Finding Mission (FFM) on s ettlements in the o ccupied t erritories of Azerbaijan (Agdam, J e brayil, Fizuli, Zangilan, Gubadly, K e lbajar and Lachin), which took place from 30 January to 5 February 2005, concluded in its “Report to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh (NK)” that

“ [t] he FFM has seen no evidence of direct involvement by the authorities of Armenia in the territories, except for the provision of electricity to parts of the Jebrail and Kubatly Districts from Kapan, Armenia”.

With regard specifically to the situation in Lachin,

“[t]he FFM conducted numerous interviews over the entire Lachin District which revealed that private initiative and not government action was the driving force prompting a move to Lachin. The FFM has found no evidence that the authorities, in a planned and organized manner, actually asked or selected people to settle in Lachin town. ... There was no evidence of non - voluntary resettlement or systematic recruitment. ... the FFM found no evidence of direct involvement of the government of Armenia in Lachin settlement . ” [52]

The ministers of the U nited S tates of A merica , France and Russia presented a preliminary version of the Basic Principles for a settlement to Armenia and Azerbaijan in November 2007 in Madrid. The Basic Principles called for, inter alia : a return of the territories surrounding Nagorno-Karabakh to Azerbaijani control; an interim status for Nagorno-Karabakh providing guarantees for security and self-governance; a corr idor linking Armenia to Nagorno ‑ Karabakh; future determination of the final legal stat us of Nagorno ‑ Karabakh through a legally binding expression of will; the right of all internally displaced persons and refugees to return to their former places of residence; and international security guarantees that would include a peacekeeping operation.

On 20 July 2009 the P residents of the OSCE Minsk Group ’ s Co-Chair countries, France, the Russian Federation and the USA made a joint statement, reaffirming their commitment to support the leaders of Armenia and Azerbaijan as they finalised the Basic Principles for the P eaceful S ettlement of the Nagorno-Karabakh conflict. They also instructed their mediators to present to the Presidents of Armenia and Azerbaijan an updated version of the Madrid d ocument of November 2007.

The second OSCE Minsk Group Co-Chairs ’ Field Assessment Mission to the seven occupied territories of Azerbaijan surrounding Nagorno ‑ Karabakh, which took place in October 2010, but its report was published only in March 2011, confirmed that there had been no significant growth in the population since 2005. The settlers, for the most part ethnic Armenians who were relocated to the territories from elsewhere in Azerbaijan, live in precarious conditions, with poor infrastructure, little economic activity and limited access to public services.

(v) The external representation of the “ NKR ” ( § 30)

30. The “ NKR ” was represented by its own representatives in the Bishkek Protocol of 5 May 1994, as well as the ceasefire agreement based on it and signed respectively by M. Mamedov in Baku on 9 May, S. Sargsyan in Yerevan on 10 May and S. Babayan in Stepanakert on 11 May 1994 . [53] Moreover, Conclusion no. 9 of the Helsinki Additional Meeting of the CSCE Council of 24 March 1992 provided: “Elected and other representatives of Nagorno-Karabakh will be invited to the Conference as interested parties by the Chairman of the Conference after consultation with the States participating at the Conference.” The representatives of Nagorno-Karabakh were an official party to the peace talks until Azerbaijan refused to continue negotiations with them in 1998.

The Committee on Relations with European Non-Member Countries of the Parliamentary Assembly has organised a series of hearings since 1992 with delegations from the Armenian and Azerbaijani Parliaments, the “leadership of Nagorno-Karabakh” and the “Azeri interested party of Nagorno-Karabakh” . [54]

In 2005 the Parliamentary Assembly called on the g overnment of Azerbaijan to establish contact, without preconditions, with the “political representatives of bo th communities from the Nagorno ‑ Karabakh region” regarding the future status of the region. It added that it was prepared to provide facilities for such contacts in Strasbourg, recalling that it had done so in the form of a hearing on previous occasions with Armenian participation [55] .

Thus, the external representation o f the interests of the “ NKR ” by local representatives has been acknowledged by pivotal interlocutors. If Armenian statesmen and public officials also assume such tasks, this is not unusual in terms of diplomatic practice. Nor is it unusual that foreign nationals should be appointed to high-ranking positions in other States in e astern Europe, as in the case of the first and the third Ministers for Foreign Affairs of Armenia, who were both citizens of the U nited S tates of A merica . Thus, such practices may not per se be regarded as jeopardising the independence of the State concerned.

D. The assessment of evidence of a judicial, administrative and financial nature ( §§ 31-33)

(i) The independence of the judiciary ( § 31)

31. The control by a member State of the judicial, administrative and financial organisation of a territory of another member State, with the concurrent exercise of public powers, may entail jurisdiction of the former over the latter ’ s territory . [56] In the present case, no “conclusive evidence” was presented to the Court of such control.

Armenian law does not apply automatically in the “ NKR ”. So long as Armenian laws are voluntarily adopted and independently applied and interpreted, there can be no inference of control. Thus, the majority ’ s argument that “several laws of the ‘ NKR ’ have been adopted from Armenian legislation” proves nothing ( see paragraph 182 of the present judgment ). Based on evidence from the Chief Justice of the Supreme Court and the head of the Bar Association of the “ NKR ” and other local judges and lawyers, which the applicants did not contradict and the majority preferred to ignore, it must be concluded that the “Republic” not only has a different court system from Armenia, but also does not accept Armenian court decisions as precedents or even as authorities. The courts of the “Republic” operate entirely independently and are not staffed by Armenian judges, prosecutors or clerks.

(ii) The autonomy of the administration ( § 32)

32. The provision of Armenian passports to citizens of the “ NKR ” is regulated by an international agreement of 24 February 1999 between the Armenian State and the “ NKR ”, which allows for that possibility only in “exceptional” cases (see paragraph 83 of the present judgment). Neither the “exceptional” issuance of Armenian passports to citiz ens of the “ NKR ”, nor the current use of the Armenian dram in the latter ’ s territory prove that the State that issued the passports or currency controls the administration or territ ory of the “ NKR ”. The best evidence of the auto nomous character of the Nagorno ‑ Karabakh administration is given by the two OSCE fact-finding missions to the territories under its control, which concluded that there was no evidence of direct involvement of the Armenian State in the administration of these territories . [57]

(iii) The external financial support ( § 33)

33. Even less credible is the contention that the financial support afforded to the “ NKR ” by the Armenian State and worldwide diaspora, or by U S citizens and organisations of Armenian origin or sympathetic to Armenia ’s situation , legitimises a legal presumption of effective control of the relevant territory by Armenia. Taken separately or together, these various financial contributions do not provide a cogent argument in view of the contemporary practice of international financial cooperation . [58]

E. Preliminary conclusion: Al-Skeini and Others watered down ( §§ 34-37)

34. In Al-Skeini and Others (cited above), the Court summarised the state of its case-law, regarding “the strength of the State ’ s military presence in the area” as the “primary” element for assessing whether effective control existed over an area outside the national territory . [59] Other indicators, such as the “the extent to which its military, economic and political support for the local subordinate administration provide[d] it with influence and control over the region” were “relevant”, but could evidently not replace the “primary” factor. That is exactly what has happened in the present case. The Court ’ s criteria have thus been turned upside down. In the prese n t judgment , the majority of the Grand Chamber give up the “primary factor” of “boots on the ground” and replace it with an unclear mix of other factors, involving “military support” . [60] Entangled in their contradictions, they abandon the well-established criteria used by the Court in the past with regard to the military control of a foreign territory, turning a blind eye to the real size and strength of the military force serving on foreign ground. Such methodology opens the floodgates to a slippery slope without any foreseeable limits for the extension of the concept of “effective control” of a foreign territory.

“Boots on the ground”, in the sense of the physical presence of the hostile army in the occupied territory, are no longer a sine qua non requirement of occupation. By admitting to a long-distance remote-controlled exercise of authority by the Armenian State in Nagorno-Karabakh, the majority depart also from long-established international humanitarian customary and treaty law, which, based on Article 42 of the Regulations concerning the Laws and Customs of War on L and ( The Hague, 18 October 1907 ) affirms that there is no occupation without the unconsented physical presence of the foreign army on the ground and without it substituting its own authority for that of the local government [61] .

35. At this stage, the Court simply does not have before it the evidence to establish with the required certainty the facts that support the applicants ’ claims. The Court cannot proceed on the basis of virtual assertions and unfounded allegations, without the benefit of either a judicial fact-finding mission or the taking of testimonial evidence, or even the prior assessment of the facts by the competent courts at national level. The majority of the Grand Chamber have refused to take such steps in spite of the fact that the Court, in cases of similar relevance, had shown its willingness to undertake enquiries, for example, “directed towards ascertaining the relevant facts in order to be able to determine whether Moldova and the Russian Federation had jurisdiction, particularly over the situation in Transdniestria, relations between Transdniestria, Moldova and the Russian Federation, and the applicants ’ conditions of detention” ( Ila ş cu and Others , cited above , § 12), which even included the taking of evidence by the judges of the Court from witnesses belonging to the Russian armed forces at the headquarters of the Russian Operational Group in the Transdniestrian region of Moldova. Indeed, not even the possibility of hearing witnesses at the Court has been considered, as has happened in cases of a similar nature, and most notably in Georgia v. Russia (I) ([GC], no. 13255/07, ECHR 2014). The Court being a European Constitutional Court, and in view of the principle of subsidiarity, the task of fact-finding and taking of evidence should remain exceptional, reserved, for example, for cases with serious pan-European repercussion s . [62] This was such a case . [63]

36. In sum, the Court simply does not know, as a result of its own omission, what is going on in the “ NKR ” territory and the surrounding districts today, and even less what has gone on there over the last twenty-three years since 1992. The argument could be made that this case is about getting a general impression o f the situation in the “ NKR ”, based on an aggregated sample of different elements, and that even if one or more elements of this sample are proven false the whole impression remains intact. This line of reasoning should be emphatically rejected.

37. As a matter of principle, an international court should not decide based on impressions, but on facts, established preferably by domestic courts. It is stating the obvious that an uncoordinated bunch of doubtful evidential elements do not make out a case. Truth cannot be reached on the basis of a broad brush of dubious assertions of the alleged victims coupled with contradictory witness testimon ies , vague factual assumptions from outsiders and tortuous inferences from the documentary evidence. The Court ’ s long-standing evidential criterion of “facts established beyond reasonable doubt” must not be replaced by an impressionistic overview of the evidence. Concomitantly, the Court ’ s substantive criterion of “effective control” must not be watered down for the convenience of the case. Chiragov and Others will thus be remembered as an unfortunate example of a negative correlation of judicial inertia, missing evidence, lack of facts and dilution of established legal criteria.

V. The right to remedial secession in international law ( §§ 38-49)

A. The presumption against secession ( §§ 38-40)

38. It was affirmed by the respondent State that the seizure of Lachin was justified under the laws of war, since it was obviously of great military strategic importance to create a land link between Nagorno-Karabakh and Armenia in order to transport military equipment, food and other supplies into Nagorno ‑ Karabakh . In other words, the seizure of Lachin was a necessary military defence measure in order to av oid the blockade of the Nagorno ‑ Karabakh region by the Azerbaijan i military forces. Moreover, the respondent State pleaded for the right of secession of the Armenian population in the former Soviet Nagorno-Karabakh Autonomous O blast in view of the alleged crimes against humanity committed against them, namely the attacks on Stepanakert and other places by the Azer baijani population and army. These issues were ignored in the majority ’ s judgment . [64]

39. No word is pronounced on the problem of “self-defence” of the Armenian population in the Nagorno-Karabakh region and the closely related problem of remedial secession in international law, which has been extensively discussed not only in the literature [65] , but also by national and international courts , especially after the 2010 Advisory Opinion of the ICJ on the unilateral declaration of independence of Kosovo [66] and the 1998 case of the Canadian Supreme Court on the right to unilateral secession of the Quebec province from the Canadian Con federation [67] . The Court ’ s silence is even less understandable in the face of recent international practice acknowledging remedial secession as a right, most notably in the 1999 Agreement between Indonesia and Portugal for the acknowledgment of the rights to self-determination and remedial secession of East Timor through a popular consultation of the East Timorese people in the form of a referendum [68] .

40. International law regulates the formation of new States, including that of secessionist States. Since the formation of States, by secession or any other means, is not a matter of pure politics, recognition is not a discretionary, let alone arbitrary, decision of each State . [69] There is a principle in international law of prohibition of non-consensual secession, which is derived from the principles of territorial integrity and sovereignty, as established by Article 10 of the Covenant of the League of Nations and Article 2 § 4 of the UN Charter. The presumption against secession is even more forceful if it came about by means of the use of force, since this contradicts the customary and treaty prohibition of the use of force acknowledged by the 1928 General Treaty for Renunciation of War, Article s 10 and 11 of the 1933 Montevideo Convention on the Rights and Duties of States and Article 2 § 4 of the UN Charter. The same applies for the use of “other egregious violations of norms of general international law, in particular those of a peremptory character ( jus cogens )” . [70] Ex injuria jus non oritur .

B. Non-consensual secession as an expression of self-determination ( §§ 41-47)

(i) The factual and legal requirements of secession ( §§ 41-42)

41. Like colonised populations [71] , non-colonised populations have a right to self-determination, as has been acknowledged by the two 1966 international covenants ( International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights ) [72] , UN General Assembly Resolution 2625 (XXV) of 24 October 1970 containing the Declaration on the Principles of International Law concerning Friendly Relations and Co ‑ operation among States in a ccordance with the Charter of the United Nations [73] , and UN General As sembly Resolution 48/121 of 14 February 1994 [74] endorsing the Declaration and Programme of Action of the Vienna Conference adopted by the UN World Conference on Human Rights [75] ; in the African context, by Article 20 of the African Charter on Human and Peoples ’ Rights [76] ; in the American context, by the Canadian Supreme Court Reference r e Secession of Quebec (1998) [77] ; and , finally, in the European context, by the Final Act of the 1975 Conference on Security and Co-operation in Europe (the Helsinki Accords) [78] and the 1991 European Community Guidelines on the recognition of new States in Eastern Europe and the Soviet Union [79] .

42. In the pursuit of the right to self-determination, new States may be formed, by non-consensual secession [80] , if and when they fulfil the following factual and legal requirements: (1) the Montevideo criteria for statehood, namely a permanent population, a defined territory, a government and the capacity to enter into relations with other States [81] ; (2) prior to secession the seceding population were not allowed fair participation in a government that represented the whole population of the parent State; and (3) the seceding population were systematically treated by the government, or a part of the population of the parent State whose action was condoned by the government, in a discriminatory manner or in a manner disrespectful of their human rights. In these restrictive terms, the right to remedial secession by non-colonised populations has continuously gained support from evolving State practice and opinio juris , having crystallised into a norm of customary international law [82] .

(ii) The Montevideo requirements of statehood ( § 43)

43. The discussion of the nature of the Armenian population of Nagorno-Karabakh as a “people” is superfluous, in view of its undisputed ethnic, religious, linguistic and cultural identity and its historical bond to that territory. If Kosovar Albanians constitute a “people”, as the ICJ held [83] , the Armenians of Nagorno-Karabakh must inevitably be considered as such as well. Additionally, if in the ICJ ’ s logic “the principle of territorial integrity is confined to the sphere of relations between States”, it must be inferred a contrario that the same principle does not limit the secession of non-State actors within a multinational State in a non-colonial context . [84] Under this light, the Montevideo population and territory criteria would pose no problem for the acknowledgment of the right to secession of the Armenian population of Nagorno-Karabakh. The available evidence of the other legal elements of statehood, namely government and capacity to enter into relations with other States, is also beyond dispute [85] .

(iii) The lack of internal self-determination of the seceding population ( § 44)

44. A right to create a new, independent State ( namely the right to external self-determination) arises whenever the seceding population do not have the legal and factual means to express their own political will within the constitutional structure of the parent State, namely when their right to internal self-determination has been disregarded . [86] The military actions in the district of Lachin at the heart of the case took place on 18 May 1992, eight months after the date of declaration of secession of 2 September 1991 and two years before the signing of the Bishkek Protocol ceasefire agreement on 5 May 1994 and its implementation on 12 May 1994.

In order to clarify the alleged lack of internal self-determination of the Armenian population, the essential questions to be put are the following: prior to 2 September 1991 did the Azerbaijani Government represent the Armenian population of Nagorno-Karabakh? Did the Armenian population enjoy a constitutional status which allowed them to express their political will within the framework of the Azerbaijani State freely? Did the Armenian population exercise their right to internal self-determination within that framework?

(iv) The systematic attack on the human rights of the seceding population ( §§ 45 ‑ 47 )

45. A right of external self-determination further requires the occurrence of a systematic attack by the government of the parent State, or by part of its population whose actions are condoned by the government, against the human rights of the seceding population . [87] In the words of Grotius, a people has no right to secession, “unless it plainly appears that it is absolutely necessary for its own preservation . ” [88]

With a view to clarifying the existence of this requirement, the essential questions to be addressed relate to the clashes between the Armenian and Azer baijani population of Azerbaijan prior to the critical date, and are the following: Did the Azerbaijani g overnment commit, or condone the commission by private persons of, systematic attacks against the human rights of the Armenian population on the national territory? Did these attacks occur prior to or after the critical date of 2 September 1991?

46. Finally, in order to ascertain the possible international responsibility of the respondent State for acts occurring during the war of secession and in particular for the destruction of property and displacement of the civilian population, the following questions are of paramount importance: Did the Armenian State intervene militarily before the critical date of 2 September 1991 in Nagorno-Karabakh or the surrounding districts? Did the Armenian State intervene militarily in the opening of the Lachin corridor and the taking of that district and, if so, did it have any justification for that action, such as the blockade, aggression and imminent risk of extinction of the Armenian population in Nagorno-Karabakh? Did the Armenian State proceed with the destruction of civilian property, including that of the applicants, on that occasion or later and, if so, did it have any justification for that action? Did the Armenian State expel or displace the local population, including the applicants, on that occasion or later and, if so, did it have any justification for that action? Did the Armenian State hinder the return of the local population, including the applicants, to the district of Lachin and, if so, did it have any justification for that action? Does this justification still hold true today?

47. Had the Armenian population been de nied the right to internal self - determination within the Azerbaijani State and had the Azerbaijani g overnment committed, or condoned the commission by private persons of, systematic attacks against the human rights of the Armenian population in the national territory prior to the critical date of 2 September 1991, the military intervention of the Armenian State after that date in favour of the Armenian population of Nagorno-Karabakh, including the opening of the Lachin corridor, if it were to t ake place, would have to be assessed in the light of the international community ’ s humanitarian obligations and “responsibility to protect” . [89]

C. Preliminary conclusion: the unanswered questions of the case ( §§ 48-49)

48. In my view, the fate of the present case is closely related to the answers to be given to the above-mentioned questions. Without a logically consistent intellectual roadmap for the assessment of the case, the Court ’ s erratic output is not credible. By confining its deliberation to the narrowest of boundaries, the Court evades the full clarification of the premises of its reasoning, further discrediting that output. Even accepting that the applicants had lived in the area of Lachin and had owned property there, as they have claimed, but have not sufficiently proven, the case could not be resolved without a thorough analysis of the legality of the military actions in the district of Lachin at the relevant time (18 May 1992) in the context of the secession of the “ NKR ”, involving the opening of a humanitarian corridor between Nagorno-Karabakh and Armenia for the safeguarding of a threatened Armenian population and eventually the consecutive displacement of civilians and destruction of civilian property for that purpose . [90]

The full assessment of the legal implications of the opening of the Lachin corridor as a crucial military measure during the war of secession is evidently relevant for the purposes of deciding on the lawfulness and proportionality of the alleged continued restrictions of the applicants ’ rights to enjoy their property and family life in the district of Lachin. Thus, the Court should not have adjudicated upon the alleged deprivation of these rights without assessing “the source of the rights claimed” [91] .

49. To put it in Convention terms, the ultimate question that this case raises, which the majority chose to ignore, is the extent to which the “general principles of international law”, including the law of secession of States and international humanitarian law, may restrict the enjoyment of the right to property under Article 1 of Protocol No. 1 (second sentence). The effect of such a renvoi is to render the applicati on of Article 1 of Protocol No. 1 conditional upon the way the Court interprets incidenter tantum the law of secession and international humanitarian law. How can the provisions of the Convention and Protocol No. 1be reconciled with the imperatives of the law of secession of States and international humanitarian law? How can the human rights enshrined in the Convention and Protocol No. 1 be protected in the context of a remedial secession of a State and the military action carried out by the defence forces of a threatened ethnic and religious minority? These questions would have taken us to a very different approach to the case.

VI. Final conclusion ( §§ 50-51)

50. Self-determination is not passé . It is not a mere political rallying cry, but a legal right, which evolved from an historical anti-colonialist claim to a broader human rights based claim. As a matter of principle, the right to external self-determination is recognised in international law, not only in a colonial but also in a non-colonial context. Whenever a part of the population of a State is not represented by its government and the human rights of that population are systematically infringed by its own government, or by private agents whose action is condoned by that government, the victimised population may have recourse “as a last resort, to rebellion against tyranny and oppression”, to use the powerful formulation of the preamble to the Universal Declaration of Human Rights.

51. This Court is competent ratione materiae to ascertain such human rights violations and the legal consequences that derive from them, namely in terms of the property rights of displaced civilians. Nevertheless, the present case should have been dismissed owing to non-exhaustion of domestic remedies, lack of victim status and lack of jurisdiction. Had the Court taken more seriously its role in the gathering of evidence, these objections could possibly have been overcome. Then, and only then, the Court would have been in a position to address fully the substantive issues at stake in this case. It did not do so. Those who suffer more from these omissions are precisely the Armenian and Azer baijani women and men of good will who simply want to live in peace in Nagorno-Karabakh and the surrounding districts.

[1] . Thomas de Waal, Black Garden: Armenia and Azerbaijan through Peace and War , New Yor k University Press, 2003, p. 210.

[2] . IISS, “The Military Balance” , 2002, p. 66; 2003, p. 66; 2004, p. 82; and 2013, p. 218 .

[3] . Se e, for example, E. Benvenisti, The International Law of Occupation (Oxford: Oxford University Press, 2012) , p. 43; Y. Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and i ts Interaction with International Human Rights Law (Leiden , Martinus Nijhoff Publishers, 2 009), pp. 5-8; Y. Dinstein, The International Law of Belligerent Occupation (Cambridge , Cambridge University Press, 2009), at pp. 42- 45, §§ 96-102; and A. Roberts, “ Transformative Military Occupation: Applying the Laws of War and Human Rights ” , American Journal of International Law , vol. 100: 580 (2006), pp. 585-86.

[4] . Most experts consulted by the International Committee of the Red Cross in the context of the project on occupation and other forms of administration of foreign territory agreed that “boots on the ground” are needed for the establishment of occupation – see T. Ferraro, “ Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory ” (Geneva: ICRC, 2012), pp. 10, 17 and 33; see also E. Benvenisti, cited above , pp. 43 et seq.; and V. Koutroulis, Le début et la fin de l’application du droit de l’occupation (Paris: É ditions Pedone, 2010), pp. 35-41.

[5] . T. Ferraro, cited above , at pp. 17 and 137, and Y. Dinstein, cited above, p. 44, § 100.

[6] . J.-M. H enckaerts and L. Doswald-Beck, Customary International Humanitarian Law ( Geneva/ Cambridge: ICRC/Cambridge University Press, 2005).

[7] . The name Nagorno-Karabagh or Nagorno-Karabakh is of Russian, Persian and Turkish origin. Nagorno is the Russian word for “ mountainous ”. Kara comes from Turkish and bagh /bakh from Persian. Karabagh or Karabakh may be translated as “black garden”. The Armenian name for the territory is Artsakh. I will use the transliterated name Nagorno ‑ Karabakh for the sake of consistency with the majority’s judgment.

[8] . See Article 33 of the Constitution of the “Republic of Nagorno-Karabakh”.

[9] . See Article 25 of the Constitution of the “ Republic of Nagorno-Karabakh ”.

[10] . In Cyprus v. Turkey [GC], no. 25781/94, § 184, ECHR 2001-IV, the Court agreed with the Commission’s analysis of the relevant constitutional provisions of the “ TRNC ” . I fail to understand why the constitutional framework of the “ N KR ” has not been examined in the present case as well.

[11] . See Loizidou v. Turkey (merits), 18 December 1996, § 45, Reports of Judgments and Decisions 1996-VI, on the basis of the Advisory Opinion of the International Court of Justice (ICJ) on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) , ICJ Reports 1971, § 125.

[12] . This is a well-established rule of customary international law (see Interhandel Case, J udgment , 2 1 March 1959 , ICJ Reports 1959 , and Article 14 of the Draft Articles on Diplomatic Protection of the International Law Commission (ILC) ) .

[13] . See Demopoulos and Others v. Turkey (dec.) [GC] , nos. 46113/99 and 7 others , § 100, E CHR 2010.

[14] . It is highly regrettable that this evidence, which has been available in the file since 2006, was simply ignored by the majority. No attention is given to this argument of the respondent State in paragraphs 117 and 118 of the present judgment.

[15] . See Pad and Others v. Turkey (dec.), no. 60617/00, § 69, 28 June 2007, and ILC Third Report on Diplomatic Protection (A/CN.4/523), § 83.

[16] . I have already referred to this censurable way of proceeding in a case where n ot as many people were potentially interested in the outcome of the case (see my separate opinion i n Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013).

[17] . See Cyprus v. Turkey , cited above, § 324.

[18] . Even if the majority do not take into account the final judgments presented by the Government in the hearing before the Grand Chamber, which refer to complaints similar to those of the applicants in the present case, there are other judicial cases which concern criminal, labour and land law where persons of Azeri or Kurdish origin were successful before Armenian and “ NKR ” courts, one of the cases referring to an inheritance claim by a person of Kurdish origin before a n “ NKR ” court.

[19] . See Resolution 1547 (2007) on the state of human rights and democracy in Europe of the Parliamentary Assembly of the Council of Europe (PACE) .

[20] . See, for example, Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX.

[21] . In Loizidou (merits) , cited above, § 66, the Court found, when interpreting the concept of “home” in Article 8: “Nor can that term be interpreted to cover an area of a State where one has grown up and where the family has its roots but where one no longer lives.”

[22] . The majority themselves acknowledge these discrepancies in paragraph 142 of the present judgment , but accept them in view of the “totality of evidence presented”, meaning the statements of former neighbours and the documents showing the applicants’ identities.

[23] . See paragraphs 146 and 149 of the present judgment. Consequently, the simple question of the very existence of the houses, which was left open in the Court’s admissibility decision, remains undecided even now.

[24] . See Principle 15.7 of the Pinheiro Principles, invoked in the present judgment. The considerable degree of the Court’s flexibility can be seen in paragraphs 142, last sentence, and 143 of the pres e nt judgment.

[25] . In Ilaşcu and Others v. Moldova and Russia ( [GC], no. 48787/99, §§ 330 and 392, ECHR 2004-VII ) the Court assessed the effective control until the date of delivery of the Grand Chamber judgment. This approach was confirmed in Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others , §§ 109 and 111, ECHR 2012.

[26] . See Šilih (cited above) , §§ 159-63. See for my interpretation of the Court’s ratione temporis jurisdiction, my separate opinion in Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others , ECHR 2014.

[27] . See Catan and Others , cited above, § 116.

[28] . Reference to isolated cases evidently does not suffice. In fact, in paragraphs 76 and 182 of the present judgment , the majority refer to three cases ( Zalyan , Sargsyan and Serobyan v. Armenia (dec.) , nos. 36894/04 and 3521/07 , 11 October 2007 ) that have not even been finalised yet, in spite of the time that has passed since the delivery of the admissibility decision. Another fourth case is mentioned, that of Mr Armen Grigoryan, of which the Court has no direct evidence.

[29] . Rule 33 of the Rules of Court provides for the possibility of restricting public access to certain documents in the interests of public order or national security. It does not contain any rule on the restriction of disclosure of evidence to one party. The General Instruction for the Registry on the treatment of internal secret documents approved by the President of the Court in March 2002 does not apply to the evidence provided by the parties either. Fina lly, the Practice Direction on written p leadings issued by the President of the Court in November 2003 and amended in 2008 and 2014 (“Secret documents should be filed by registered post”) is manifestly insufficient.

[30] . See, for some examples of these agreements, www.army.mod.uk/operations-deployments/22753.aspx ., www.defense.gouv.fr/operations/rubriques_complementaires/carte-des-operations-exterieures , and www.emgfa.pt/pt/operacoes/estrangeiro .

[31] . S/RES/8 2 2 (1993).

[32] . S/RES/853 (1993).

[33] . S/RES/874 (1993).

[34] . S/RES/884 (1993). The expressions used are “the local Armenian forces” (Resolution 822) and “Armenians of the Nagorno Karabakh region of Azerbaijan” (Resolutions 853 and 884).

[35] . A/RES/62/243. The expression used is “all Armenian forces”. Thus, the reference to this Resolution in paragraph 176 of the present judgment is misleading, since the General Assembly does not refer to the withdrawal of armed forces of Armenia.

[36] . See paragraph 16 of Loizidou , cited above, for a detailed establishment of the facts.

[37] . In Ilaşcu and Others (cited above , § 26) the Grand Chamber found it established “beyond reasonable doubt” that the support provided to the separatists by the troops of the 14th Army and the massive transfer to them of arms and ammunition from the 14th Army’s stores put the Moldovan army in a position of inferiority that prevented it from regaining control of Transdniestria. On 1 April 1992 the Russian President officially transferred the 14th Army to Russian command, and it thereafter became the “Russian Operational Group in the Transdniestrian region of Moldova” ( “ the ROG ” ). The Court went on to describe the military activities of the ROG i n support of the separatists. The same evidential criterion has been applied in Cyprus v. Turkey , cited above, § 113, and in Catan and Others , cited above, §§ 19 and 118.

[38] . Nonetheless, it has been recognised by Transdniestria, Abkhazia and South Ossetia, which themselves have limited international recognition.

[39] . This does not necessarily call into question their binding force (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) , cited above, § 113). The language used in these R esolutions is indicative that they are not mere recommendations or exhortations, but legally bindi ng decisions. For the dispute over the legal force of the Security Council acts approved outside the scope of Chapter VII, see for example the comments of Hervé Cassan and Suy/Angelet, in J . -P. Cot et al. , La Charte des Nations Unies, Commentaire article p ar article , I, 3rd edition, Paris, Economica, 2005, pp. 896- 97 and 912- 15 , respectively .

[40] . The R esolution was voted on as follows: 39 States in favour, 7 against and 100 abstentions. The three C o-Chairs opposed the “unilateral text” of the draft R esolution, because it “threatened to undermine the peace process”. The majority of the Grand Chamber did refer to this document in the “Facts” part, but omitted the result of the vote taken, and did not use the reference thereto in the “Law” part. No mention was made in the present judgment of the two previous General Assembly Resolutions taken without a vote.

[41] . A/RES/48/114.

[42] . A/RES/60/285.

[43] . PACE Resolution 1047 (1994) on the c onflict in Nagorno-Karabakh , and Recommendation 1251 (1994) on the c onflict in Nagorno-Karabakh.

[44] . PACE Resolution 1119 (1997) on c onflicts in Transcaucasia.

[45] . PACE Resolution 1304 (2002) on the h onouring of obligations and commitments by Armenia.

[46] . The edited reference in paragraph 176 of the present judgment to this passage of PACE Resolution 1416 (2005) on the conflict over the Nagorno-Karabkh region dealt with by the OSCE Minsk Conference is misleading, because PACE does not mention the occupation of Azerbaijani territory by the Armenian army, nor the annexation of Azerbaijani territory by the State of Armenia. One should not read into the letter of the R esolution , something which it clearly does not say.

[47] . PACE Recommendation 1690 (2005) on t he conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference and Resolution 1416 (2005) on t he conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference.

[48] . See the European Parliament Resolutions of 19 January 2006 on the European Neighbourhood Policy (ENP), of 6 July 2006 on the European Neighbourhood and Partnership Instrument (ENPI) , of 15 November 2007 on strengthening the ENP, of 7 April 2011 on the review of the European Neighbourhood Policy – Eastern Dimension, and , more recently, of 23 October 2013 on the European Neighbourhood Policy: towards a strengthening of the partnership. Position of the European Parliament on the 2012 reports.

[49] . See the European Parliament Resolution of 20 May 2010 on the Need for an EU Strategy for the South Caucasus.

[50] . European Parliament Resolution of 18 April 2012 containing the European Parliament’s R ecommendations to the Council, the Commission and the European Union External Action Service on the negotiations of the EU-Armenia Association Agreement.

[51] . Thus, the reference in paragraph 176 of the present judgment to the 2012 E uropean P arliament Resolution is misleading, since the E uropean P arliament did not refer to the occupation of Azerbaijani territory by the army of the State of Armenia. The call on Armenia to stop sending conscripts to serve in Nagorno-Karabakh, which is based on the 1994 A greement referred to above, must be understood in the framework of the EU proposal of general demilitarisation of the region.

[52] . The majority refer to this evidence in the “Facts” part, but do not take it in to account in the “Law” part.

[53] . See also the Zheleznovodsk Communiqué of 23 September 1991, the Sochi Agreement of 19 September 1992, the military-technical protocol on the implementation of the Sochi Agreement of 25 September 1992, and the Timetable of Urgent Steps proposed by the Chairman of the CSCE Minsk Group of September 1993, in which Nagorno-Karabakh appears as a party to the conflict for the first time.

[54] . Recommendation 1251 (1994) on the conflict in Nagorno-Karabakh.

[55] . Resolution 1416 (2005) on the conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference.

[56] . See Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 139 , ECHR 2011 .

[57] . See the references above to the 2005 OSCE mission, the result of which was confirmed by the 2010 mission.

[58] . For example, Armenia receives funding from the ENPI through a national programme. EU bilateral assistance to Armenia amounts to 157 m illion euros (EUR) for 2011-13 (compared to EUR 98.4 m illion for 2007 ‑ 10). As a result of progress in reforms, governance and democracy, Armenia benefitted from additional EU allocations ( EUR 1 5 m illion in 2012 and EUR 2 5 m illion in 2013) under the Eastern Partnership Integration and Cooperation programme, in the framework of the application of the “more for more” principle of the revised European Neighbourhood Policy. Armenia also benefits from a number of thematic programmes such as the European Instrument for Democracy and Human Rights. No one would pretend that Armenia is therefore under the effective control of the E uropean Union.

[59] . See Al-Skeini and Others , c ited above , § 139.

[60] . Ultimately, the majority contradict themselves, since in paragraph 96 of the present judgment they consider that military occupation always involves “the presence of foreign troops which are in a position to exercise effective control without the consent of the sovereign”, and in paragraph 146 they refer explicitly to Nagorno-Karabakh, the district of Lachin and the other surrounding territories as “now under occupation”, while in paragraph 180 they retract from the “boots on the ground” criterion in favour of a more complacent and slippery criterion of “significant involvement” based on military support in terms of equipment and expertise. The contrast of paragraph 180 of t he present judgment with paragraphs 144 and 224 of Sargsyan is even more astonishing. In paragraph 144 of Sargsyan v. Azerbaijan ([GC], no. 40167/06, ECHR 2015) , the majority return to “the presence of foreign troops” as the necessary criterion to establish occupation and in paragraph 224 they maintain that Azerbaijan “lost control over part of its territory as a result of war and occupation”.

[61] . Thus, the test of effective control in international humanitarian law depends on the cumulative requirements of unconsented presence of hostile troops on the ground and substitution of local authority (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) , Judgment, ICJ Reports 2005 , § 173, and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, ICJ Reports 2004 , § 78 ; see also T. Ferraro, “ Determining the beginning and end of an occupation under international humanitarian law ” , International Review of the Red Cross , vol. 94 , no. 885 , 31 March 2012, pp. 143-48; V. Koutroulis, Le début et la fin de l’application du droit de l’occupation , Paris: Éditions Pedone, 2010, pp. 35-41; and E. Benvenisti, The International Law of Occupation , second edition, Oxford, 2012, pp. 43 ‑ 54). The possibility of an “indirect administration” through various Congolese rebel factions was considered possible by the ICJ in the first case cited above , but rejected for lack of evidence. In any event , the specific actions of the non-State actor would have to be attributable to the foreign State in the sense of Article 8 of the International Law Commission ’s D raft a rticles on Responsibility of States for Internationally Wrongful Acts.

[62] . On the nature of the Court as the European Constitutional Court, see my separate opinion in the case of Fabris v. France [GC], no. 16574/08, ECHR 2013.

[63] . It is difficult to understand why the present case did not deserve the same care and attention as others w ith f ewer repercussions, such as Davydov and Others v. Ukraine ( nos. 17674/02 and 39081/02, 1 July 2010), Naumenko v. Ukraine ( no. 42023/98, 10 February 2004) and Tekin Yıldız v. Turkey ( no. 22913/04, 10 November 2005), where such evidential investigations took place. The Court did not even give reasons for rejecting the evidential steps proposed by the parties. For example, in McKerr v. the United Kingdom ( no. 28883/95, § 117, ECHR 2001-III ) the Court rejected an investigation because it considered that a fact-finding exercise would duplicate the ongoing domestic procedure. That would not have been true in the present case, where precisely the lack of domestic procedures made additional evidential enquiries indispensable.

[64] . Although the majority took note of the problem of the “justification for interfering with the individual rights of residents in the area” in paragraph 197 of the present judgment, they avoided the issue by simply assuming that the “justification” for the capture of Lachin in May 1992 and the creation of a land link between Armenia and Nagorno-Karabakh had no “direct bearing” on the events that followed or on today’s situation. The majority failed to explain why. They have also neglected to justify why the current situation is no longer “an emergency situation” ( see paragraph 200). This position is not coherent with the stance taken in paragraphs 231 to 2 32 of the Sargsyan judgment, where the same majority discussed the relevance of international humanitarian law for the purposes of justifying deprivation of the Convention right. Unlike the majority in t he present case , but like the majority in Sargsyan , I am convinced that only the assessment of the “justification” for the 1992 events can provide a solid legal basis for the evaluation of both today’s situation and the situation during the time which elapsed in between, as will be demonstrated below. A similar methodological critique, according to which “it is impossible to separate the situation of the individual from a complex historical development and a no less complex current situation”, can be found in the separate opinion of Judge Bernhardt, joined by Judge Lopes Rocha, in Loizidou (cited above) and in the separate opinion of Judge Kovler in Ilaşcu and Others (cited above).

[65] . See, among many voices in the literature in favour of a right to remedial secession, U.O. Umozurike, Self-determination in International Law , Hamden, 1972, p. 199; L.C. Buch heit , Secession: the Legitimacy of Self-Determination , New Haven, 1978, p. 332; B. Kingsbury, “Claims by N on- S tate G roups in I nternational L aw”, Cornell International Law Journal , vol. 25 (1992), p. 503; F.L. Kirgis, “ D egrees of Self-Determination in the United Nations Era”, American Journal of International Law , vol. 88 (1994), p. 306; R. McCorquordale, “Self ‑ D etermination: A Human Rights Approach”, International and Comparative Law Quarterly , vol. 43 (1994), pp. 860-61; A. Cassese, Self- D etermination of Peoples , Cambridge, Cambridge University Press, 1995, pp. 112-18; O.C. Okafor, “Entitlement, Process, and Legitimacy in the Emergent International Law of Secession”, International Journal on Minority and Group Rights , vol. 9 (2002), pp. 53-54; D. Rai č , Statehood and the Law of Self-Determination , Leiden, Martinus Nijhoff Publishers, 2002, pp. 324-32; K. Doehring, in Simma (ed . ), The Charter of the United Nations , 2002, Article 1, Annex: S elf-Determination, notes 40 and 61; M. Novak, UN Covenant on Civil and Political Rights Commentary , CCPR, second revised edition, Kehl, 2005, pp. 19-24; M. Suski, “Keeping the L id on the Secession Kettle: a R eview of L egal Interpretations concerning Claims of Self ‑ Determination by Minority Populations”, in International Journal on Minority and Group Rights , vol. 12 (2005), p. 225; C. Tomuschat, “ Secession and self-determination”, in Kohen (ed.), Secession, International Law Perspectives , Cambridge, Cambridge University Press, 2006, pp. 41-45; J. Dugard and D. Rai č , “The role of recognition in the law and practice of secession”, in Kohen (ed), ibid., p. 103; J. Dugard, “The Secession of States and their Recognition in the Wake of Kosovo”, Collected Courses of the Hague Academy of International Law , Leiden, 2013, pp. 116-17; and B . Saul et al., The International Covenant on Economic, Social and Cultural Rights : Commentary, Cases and Materials , Oxford, Oxford University Press, 2014, pp. 25-52.

[66] . Advisory Opinion on the Accordance with International Law of the U nilateral Declaration of Independence in Respect of Kosovo (“ Kosovo Advisory Opinion ” , ICJ Reports 2010, p. 403) .

[67] . [1998] 2 SCR 217 .

[68] . The erga omnes nature of the right to self-determination was authoritatively confirmed by the ICJ in East Timor (Portugal v. Australia) , Judgment, ICJ Reports 1995, § 29. In this particular case, while Indonesian-controlled militiamen were massacring the East Timorese, Secretary-General Kofi Annan had to threaten the Indonesian g overnment with international prosecution for crimes against humanity in exchange for cooperation with the international community and admission of the principle of self-determination of Timor Leste (see Secretary-General’s Press Conference at the UN Headquarters, 10 September 1999). This is the reason why some have viewed Indonesia’s position as a “coerced consent”, which would make the East Timor secession a truly non ‑ consensual secession (see G. Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All , Washington, Brookings Institution Press, 2008, p. 63 , and A.J. Bellami, Responsibility to Protect , London, 2009, pp. 147-48).

[69] . Like Sir Hersch Lauterpacht ( Recognition in International Law , Cambridge, Cambridge University Press, 1947, p. 1), my point of departure is that recognition is not outside the orbit of international law and it depends on an objective legal appraisal of true facts. Although fraught with political implications, this issue does not fall within the purview of pure politics.

[70] . The ICJ has referred to UN Security Council R esolutions condemning some declarations of independence (see Resolutions 216 (1965) and 217 (1965), concerning Southern Rhodesia; Security Council Resolution 541 (1983), concerning Northern Cyprus; and Security Council Resolution 787 (1992), concerning Republika Srpska) in order to conclude 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 ). … 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.” Pointing in the same direction, see Articles 40 and 41 of the ILC’s Draft articles on Responsibility of States for Internationally Wrongful Acts.

[71] . U N General Assembly Resolution 1514 (XV) of 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples (A/RES/1514 (XV), see also A/L.323 and Add.1-6 (1960)) and, in the constant case-law of the ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) , cited above, § 52; Western Sahara , Advisory Opinion , 1CJ Reports 1975, §§ 54-59; East Timor (Portugal v. Australia), cited above, § 29; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , cited above, § 88.

[72] . The UN Human Rights Committee has affirmed that the principle of self-determination applies to all populations and not only to colonised populations (Concluding Comments on Azerbaijan, CCPR/C/79/Add.38, § 6 , and also its General Comment N o. 12 on the right to self-determination , § 7, which refers to General Assembly Resolution 2625 (XXV)).

[73] . A/RES/25/2625 (XXV) (see also A/8082 (1970)). Although adopted without a vote, the Declaration reflects customary international law (see Nicaragua v. the United States of America , cited above, §§ 191-93).

[74] . A/RES/48/121. The Resolution was adopted without a vote.

[75] . A/CONF.157/24 (Part I) at 20 (1993). The Vienn a Declaration was adopted by consensus by representatives of 171 States.

[76] . See African Commission on Human and Peoples’ Rights, Katangese People’s Congress v. Zaire , C ommunication N o. 75/92 ( 1 995 ), and Kevin Mgwanga Gunme et al v. Cameroon , C ommunication N o. 266/03 (2009) , with two findings of no violation of Article 20 of the African Charter.

[77] . Paragraph 138: “the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.”

[78] . Given that the States Parties to the CSCE are exclusively European, the “equal rights of peoples and their right to self-determination” cannot be ascribed evidently to colonial peoples.

[79] . See also Opinion N o. 2 of the Badinter Arbitration Commission on Yugoslavia.

[80] . The Committee on the Elimination of Racial Discrimination, General Recommendation 21 (1996), § 6, admitted “the possibility of arrangements reached by free agreements of all parties concerned”.

[81] . See Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States.

[82] . In addition to the references already made above, see in particular the Declaration on Principles of International Law concerning Friendly Relations, cited above, P rinciple V, paragraph 7, which requires the observance of the principles of equal rights and self ‑ determination of peoples and a “government representing the whole people belonging to the territory without distinction as to race, creed or colour”. A contrario , this “safeguard clause” must be understood in the sense that a government which discriminates against a part of its population on the basis of race, creed or colour does not represent the whole people and may not require from them respect for its territorial integrity. Both systematic and teleological interpretations of the Declaration reinforce this conclusion, having regard to the preamble and its acknowledgment of the paramount importance of the right of self ‑ determination. The 1993 Vienna Declaration on Human Rights, cited above, extended the right to external self-determination on the basis of violations of human rights, referring to a “ G overnment representing the whole people belonging to the territory without distinction of any kind” (A/C O NF .157.24 (1993)). General Assembly Resolution 50/6 of 2 4 October 1995 which approved “by acclamation” the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations (A/RES/50/6), reiterated the Vienna formulation. The historical predecessor of this right to secession is the position of the Committee of Rapporteurs appointed by the League of Nations to give an opinion on the Ã… land Islands dispute, which concluded as follows: “The separation of a minority from the State of which it forms a part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees” (Report of the Commi s sion of Rapporteurs, 16 April 1921, League of Nations Council Document B7 21/68/106 (1921)). For additional references to the practice, see also my separate opinion in Sargsyan (cited above).

[83] . Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion , cited above, § 109.

[84] . ibid., § 80. Although timid, this is the main contribution of the ICJ to the quarrel over the right to secession in international law. With this narrow interpretation of the territorial integrity principle, the ICJ’s position must be seen as endorsing tacitly that right for non-State actors in multinational States, which was also the position of Albania, Estonia, Finland, Germany, Ireland, Jordan, the Netherlands, Norway, Poland, Russia, Slovenia and Switzerland. The same line of argument could be drawn from Article 11 of the ILC’s Draft Declaration on Rights and Duties of States (“Every State has the duty to refrain from recognizing any territorial acquisition by another State acting in violation of article 9”). Judge Antônio Cançado Trindade expressed similar views in his convincing separate opinion appended to the ICJ’s Kosovo Advisory Opinion , according to which the systematic violations of the human rights of the Kosovar Albanians gave rise to a right to external self-determination from the parent State ( s eparate o pinion of Judge Cançado Trindade, ibid.,  §§ 177-81). Judge Abdulqawi Ahmed Yusuf also accepted the existence of such a right, under which the ICJ should have examined the concrete facts of the case ( s eparate o pinion of Judge Yusuf, ibid . , §§ 11-13). Identically, Judge Wildhaber admitted in his separate opinion in Loizidou (cited above, joined by President Rysdall) the existence of a “right to self-determination if their human rights are consistently and flagrantly violated or if they are without representation at all or are massively under-represented in an undemocratic and discriminatory way”.

[85] . On the structure of the State and its functioning, see the Constitution of the Republic , mentioned above , and the regular multi - party elections which take place in the territory. On the capacity to enter into relations with other States even before the May 1994 Bishkek Protocol c easefire a greement, see the evidence mentioned above in the present opinion.

[86] . See the above-cited case of the Canadian Supreme Court as well as the African Commission cases Katangese People’s Congress v. Zaire and Kevin Mgwanga Gunme et al v. Cameroon (cited above) , where the populations of Quebec, Katanga and Southern Cameroon were denied the right to external self-determination in view of their internal self-determination. This stance was confirmed by Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples, adopted by General Assembly Resolution 61/295 ( 13 September 2007 , A/RES/61/295) by a majority of 143 States in favour, 4 votes against and 11 abstentions.

[87] . The acquiescence or connivance of the State in the acts of private individuals which violate Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention (see Cyprus v. Turkey , cited above, § 81, and Ilaşcu and Others , cited above, § 318).

[88] . Grotius, De jure belli ac pacis, l ibri tres , 2.6.5.

[89] . At this juncture, it is worthwhile to recall the crucial importance of the Lachin corridor, as the Security Council and the CSCE/OSCE have explicitly recognised. Security Council Resolutions 822 (1993) and 853 (1993) thus reiterated: “Calls once again for unimpeded access for international humanitarian relief efforts in the region, in particular in all areas affected by the conflict, in order to alleviate the increased suffering of the civilian population and reaffirms that all parties are bound to comply with the principles and rules of international humanitarian law.” Resolution 874 (1993) insisted: “Calls on all parties to refrain from all violations of international humanitarian law and renews its call in resolutions 822 (1993) and 853 (1993) for unimpeded access for international humanitarian relief efforts in all areas affected by the conflict.” The Helsinki Additional Meeting of the CSCE Council (Summary of Conclusions, Helsinki, 24 March 1992, § 10) “urged all CSCE participating States and all concerned parties to take all necessary steps to ensure that humanitarian assistance is provided to all those in need through rapid and effective means including safe corridors under international control”. It is clear from these calls that the situation at the relevant time did require urgent humanitarian intervention, if need be through the means of safe corridors. On humanitarian intervention, both as a right and a responsibility of the international community, see my separate opinion in Sargsyan (cited above).

[90] . A thorough reply to these questions would require attentive consideration of the available official evidence of violations of the human rights of the Armenian population in Azerbaijan at the relevant time, such as the European Parliament Resolutions of 7 July 1988 (“whereas the deteriorating political situation, which has led to anti ‑ Armenian pogroms in Sumgait and serious acts of violence in Baku, is in itself a threat to the safety of the Armenians living in Azerbaijan … [the European Parliament c]ondemns the violence employed against Armenian demonstrators in Azerbaijan”), 18 January 1990 (“having regard to the resumption of anti-Armenian activities by the Azeris in Baku (an initial estimate talks of numerous victims, some of whom died in particularly horrific circumstances) and the attacks on Armenian villages outside Nagorno ‑ Karabakh, such as Shaumyan and Getashen, … whereas the blockade of Nagorno ‑ Karabakh has been reinstated by Azerbaijan as harshly as ever”), 15 March 1990 (“concerned at the human rights situation in Nagorno-Karabakh, which is administered by Azerbaijan against the will of the majority of its inhabitants, more than 75% of whom are Armenians, and at the continuing violence in Azerbaijan”), 14 March 1991 (“massacres of Armenians in Azerbaijan”), 16 May 1991 (“deploring the continual aggravation of violence in the Caucasus, particularly against Armenians in the autonomous region of Karabakh”), 13 February 1992 (“whereas the Armenian population living in Nagorno-Karabakh has been subjected to constant blockade and aggression for the last three years, whereas at the end of December 1991 Azerbaijan launched a huge and unprecedented offensive against Armenians living in Nagorno-Karabakh, whereas Armenian villages in Nagorno-Karabakh were bombarded with heavy artillery on 34 occasions during January 1992, with over 1 , 100 rockets and mortars fired at them, wounding about 100 civilians, including women and children, whereas the situation of the people of Nagorno-Karabakh with regard to food and health has worsened to the point of becoming untenable”) , 21 January 1993 (“aware of the tragic situation of the 300 , 000 Armenian refugees who have fled the pogroms in Azerbaijan ... [the European Parliament t]akes the view that the relentless blockade carried out by Azerbaijan constitutes a violation of international law and insists that the Azerbaijani Government lift it forthwith”), and 10 February 1994 (“whereas the Azerbaijani air force has resumed its bombing of civilians, particularly in the town of Stepanakert”); section 907 of the United States Freedom Support Act of 24 October 1992, still in force (“United States assistance under this or any other Act (other than assistance under title V of this Act) may not be provided to the Government of Azerbaijan until the President determines, and so reports to the Congress, that the Government of Azerbaijan is taking demonstrable steps to cease all blockades and other offensive uses of force against Armenia and Nagorno-Karabakh.”); and the US Senate Resolution of 17 May 1991 (“Whereas Soviet and Azerbaijani forces have destroyed Armenian villages and depopulated Armenian areas in and around Nagorno-Karabakh in violation of internationally recognized human rights … [the US Senate] condemns the attacks on innocent children, women, and men in Armenian areas and communities in and around Nagorno-Karabakh and in Armenia; condemns the indiscriminate use of force, including the shelling of civilian areas, on Armenia’s eastern and southern borders; calls for the end to the blockades and other uses of force and intimidation directed against Armenia and Nagorno-Karabakh”). The Court itself acknowledged the existence of “expulsions”, accompanied by “arrests and violence”, of the Armenian civilian population, committed by the “government forces” o n Azerbaijan territory in April to May 1991 ( Sargsyan , cited above , § 32 ).

[91] . See Šilih , cited above , §§ 159-63.