Extending ICJ Principles: What the Recent Advisory Opinion Means for the People of Artsakh

On July 19, 2024, the International Court of Justice (ICJ) issued an advisory opinion on the legal consequences of Israel's policies and practices in the occupied Palestinian territory, including East Jerusalem. Despite the many controversies and ambiguities surrounding the advisory opinion, it raises critical points relevant to the status of Palestine, which bear notable similarities to the situation in Nagorno-Karabakh (Artsakh).

In paragraphs 174-175, the Court stated:

174. Many participants have argued that belligerent occupation can in no way serve as a basis for the acquisition of territory; it does not confer on the occupying Power title to the occupied territory; nor does it erase the rightful title.

175. The annexation of occupied territory by an occupying Power is unlawful. Under the principle enshrined in Article 2, paragraph 4, of the Charter of the United Nations:

“[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”

Resolution 2625 (XXV) of October 24, 1970, titled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations,” reinforces this principle, emphasizing that “[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal.” The Court further affirmed that the prohibition of territorial acquisition through force is a principle of customary international law (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 171, para. 87).

In addition, the ICJ noted that the prohibition on acquiring territory by force implies that force cannot be a means to resolve sovereignty claims (paragraph 178).

Statehood and the Right to Self-Determination

The long-standing debate about whether Article 2, paragraph 4 of the Charter of the United Nations protects only states or extends to entities other than states finds relevance in this advisory opinion. The ICJ avoided basing its conclusions on the assumption that Palestine had achieved statehood, suggesting that the Court extended the prohibition on the use of force beyond state actors. This position implies that the right to self-determination, fundamental to international law, is not limited to recognized states. Instead, it applies to any people exercising this right, including those in unrecognized or disputed territories.

Paragraphs 237-241 of the opinion further support this interpretation. First, the right to territorial integrity is recognized under customary international law as a corollary of the right to self-determination. Second, the right to self-determination protects a people from acts aimed at dispersing the population or undermining its integrity. Third, this right includes permanent sovereignty over natural resources, a principle recognized in customary international law. Lastly, a key element of self-determination is the right of a people to freely determine their political status and pursue their economic, social, and cultural development.

By applying the Court’s reasoning to Nagorno-Karabakh, it follows that the people of Artsakh hold the same right to self-determination, regardless of whether their statehood is widely recognized. Azerbaijan cannot legally resolve its claims of sovereignty through the use of force against a population exercising this right. This analysis supports the argument that the absence of broad recognition for the Nagorno-Karabakh Republic does not undermine the rights of its people to self-determination under international law.

The Significance of International Recognition

While Palestine has been recognized as a state by over 140 countries, Nagorno-Karabakh has not achieved similar international recognition. At first glance, this difference may appear decisive in determining the rights of these regions. However, the ICJ carefully avoided basing its conclusions on Palestine’s statehood. Instead, the Court grounded its analysis on principles of customary international law, such as the prohibition of territorial acquisition through force and the universal right to self-determination. These principles are not limited to recognized states but apply to all peoples seeking self-determination.

This perspective emphasizes that the lack of recognition for Artsakh’s statehood does not negate the legitimacy of its people's rights. The focus shifts from formal statehood to the protection of fundamental human rights under international law. In this context, recognition becomes secondary to the broader legal principles that protect people from the use of force to suppress their rights. However, it is important to acknowledge that non-recognition can lead to practical challenges. Without formal recognition, entities like Artsakh may face difficulties in seeking enforcement of international decisions, garnering international support, or participating in global diplomatic processes. These challenges can complicate the path to achieving self-determination in practice, even if the legal principles are firmly in their favor.

While these practical difficulties do not undermine the fundamental legal rights of the people of Artsakh, they highlight the complexities involved in translating international law into meaningful political outcomes. Recognizing these challenges adds depth to the discussion while reinforcing the importance of upholding international legal norms in the face of political and diplomatic hurdles.

Erga Omnes Obligations and Non-Recognition

The Court concluded by identifying the obligations erga omnes violated by Israel, including the obligation to respect the Palestinian people’s right to self-determination and the prohibition on acquiring territory by force, alongside violations of international humanitarian law and international human rights law (paragraph 274). The term "erga omnes obligations" refers to obligations that states owe to the international community as a whole. These obligations are so fundamental that their violation affects the entire international order, not just the immediate parties involved.

The Court also noted that Member States are obligated not to recognize any changes in the physical character, demographic composition, institutional structure, or status of the territory occupied by Israel (paragraph 278).

By extension, this analysis suggests that the acquisition of Artsakh's territory through force similarly violates erga omnes obligations. The international community should refrain from recognizing the situation created in the aftermath of Azerbaijan's use of force. The violation of these obligations reinforces the imperative to protect the right to self-determination, even in the face of non-recognition or political pressure.

Conclusion

The ICJ’s advisory opinion highlights critical principles of international law, such as the prohibition of territorial acquisition through force and the universal right to self-determination, which seem to extend beyond statehood. While non-recognition presents practical challenges for regions like Nagorno-Karabakh, it does not undermine the legal rights of their populations. Upholding these international legal norms is essential, especially when political realities complicate enforcement. The international community must remain vigilant in protecting these fundamental rights to ensure that force is not legitimized as a means to suppress them.