PROBLEM
Ara Papian
Azat Artsakh Daily, Republic of Nagorno Karabakh [NKR]
30 May 07
The settlement of the Nagorno-Karabakh conflict some people say is
possible through conciliation of the allegedly contradicting principles
of territorial integrity and self-determination of peoples. In speaking
about territorial integrity mainly two documents are referred to, the
Charter of the United Nations (1945) and the Conference on Security
and Co-operation in Europe, Final Act (1975). Let us go through
these documents to see if these references are relevant. First,
let us consider the principles of self-determination of peoples and
territorial integrity according to the Charter of the United Nations
to reveal their legal content in the document and thereby their
relevance to the international law. The charter is dominant over
all the other international documents. This provision is set down
in Article 103 of the Charter, and is accepted by all the members of
the UN. Article 1 of the Charter dwells on the goals and principles
of this organization. According to Article 1 Point 2 of the Charter
of the United Nations, "The Purposes of the United Nations are:
1. … 2. To develop friendly relations among nations based on respect
for the principle of equal rights and self-determination of peoples,
and to take other appropriate measures to strengthen universal
peace." [1] It is clear that the UN considers self-determination
of peoples (self-determination, not just the right of people for
self-determination, i.e. the application of this right) as not only
one of its basic principles but also as a basis for friendly relations
and universal peace. Hence, rejection of self-determination hinders
friendship and universal peace. In addition, Article 24, Point 2 holds:
"In discharging these duties [the maintenance of international peace
and security] the Security Council shall act in accordance with
the Purposes and Principles of the United Nations." It means in the
maintenance of international peace and security the Security Council
must be guided by self-determination if peoples because it is one of
its principles. As to territorial integrity, it is not included in
the purposes or principles of the UN. The Charter includes (Article
2, Point 4) unacceptability of use of force against territorial
integrity in international relations. "All Members shall refrain in
their international relations from the threat or use of force against
the territorial integrity or political independence of any state…" In
other words, it is not absolute maintenance of territorial integrity of
a state but the unacceptability of use of force against the territorial
integrity of one state by another state. It has nothing to do with
applying the tight of the self-determinate community, separation with
its own territory, if this community wishes to self-determinate through
independence. It should be noted that only the community has the right
to decide the form of its self-determination: a classic independent
country, a federation, sovereignty, or unification with another state
[2]. Most experts on the law of nations acknowledge self-termination as
a legal principle unlike the so-called territorial integrity. Hence,
it is obvious that the political aspect of the issue cannot distort
its legal content [3].
Moreover, the principle of self-determination is part of the jus cogens
of the international law, therefore [4] it cannot be changed. The UN
General Assembly declared by Resolution 637A(VII) (December 16, 1952):
"The States Members of the United Nations shall uphold the principle
of self-determination of all peoples and nations." [5] It is highly
important that the honoring of the right for self-determination is
interpreted as obligation proceeding from the Charter of the United
Nations. (… regards the principle of self-determination as a part of
the obligations stemming from the Charter) [6]. The other important
international document which is often referred to is the Conference
on Security and Co-operation in Europe, Final Act adopted on August 1,
1975. It is also known as Helsinki Final Act. This document allegedly
upholds territorial integrity and indivisibility of border. It does
not. "They [the participating States] consider that their frontiers can
be changed, in accordance with international law, by peaceful means
and by agreement," holds Helsinki Final Act’s Chapter 1. It makes
clear that use of force against territorial integrity and political
independence is unacceptable. "The participating States will refrain
in their mutual relations, as well as in their international relations
in general, from the treat or use of force against the territorial
integrity or political independence of any State …" Hence, it is
obvious that the Helsinki Final Act, like the Charter, condemns use
of force against territorial integrity and not absolute maintenance of
territorial integrity. In other words, the unacceptability of threat or
use of force by one of the countries which signed the final act against
another country’s territorial integrity and political independence. It
should be kept in mind that the Helsinki Final Act and the Charter
intend to maintain peace and security through refraining from threat
or use of force in international relations and not eternal borders
or conferring the status of a holy cow to the territories of states.
Self-determination of peoples is one of the basic principles
of the international law in accordance to which the borders of
the USSR, Czechoslovakia, Germany, Yugoslavia changed and will
change (Serbia). To conclude, neither the Charter nor the Helsinki
Final Act provide for territorial integrity or indivisibility of
borders. These documents include only commitment assumed by countries
on signing these documents not to threaten or use force against the
territorial integrity of another state. Hence, if Azerbaijan used
force in answer to the free and peaceful expression of the will
of the people of Nagorno-Karabakh (rallies, referendums, claims,
appeals), took inadequate means of punishment, perpetrated massacres
of the Armenian citizens of Azerbaijan in Sumgait, Baku, Kirovabad,
waged a ruthless war with Ukrainian, Afghan, Russian mercenaries
and sustained a defeat losing control over part of the territories
it considers as its own, it has nothing to do with the territorial
integrity mentioned in the abovementioned documents.*** 1. Similar
wording is found in Article 55 of the Charter on stability. 2. Ian
Brownlie, Principles of Public International Law, Oxford University
Press, Fifth edition, 2001, p. 599. 3. Ibid., p. 600. 4. Ibid.,
pp. 475-76. 5. Ibid., p. 600. 6. Ibid.