By Natalino Ronzitti
Emeritus Professor of International Law at LUISS University ( Rome)
Under the current situation, Armenia exercises effective control of the occupied territories of Nagorno-Karabakh and seven adjacent regions of the Republic of Azerbaijan, whether directly, through its own armed forces, or indirectly, through a subordinate local regime that survives by virtue of Armenia’s overall support, as pointed out by the European Court of Human Rights.75 The case was about the notion of jurisdiction under Article 1 of the European Convention on Human Rights and a claim brought against Armenia for a limitation of the right of property located in Nagorno-Karabakh. The Court stated:
All of the above reveals that Armenia, from the early days of the Nagorno- Karabakh conflict, has had a significant and decisive influence over the ‘NKR’, that the two entities are highly integrated in virtually all important matters and that this situation persists to this day. In other words, the ‘NKR’ and its administration survive by virtue of the military, political, financial and other support given to it by Armenia which, consequently, exercises effective control over Nagorno Karabakh and the surrounding territories, including the district of Lachin. The matters complained of therefore come within the jurisdiction of Armenia for the purposes of Article 1 of the Convention.
The Government’s objection concerning the jurisdiction of Armenia over Nagorno-Karabakh and the surrounding territories is therefore dismissed.
The self-proclaimed Republic of Nagorno-Karabakh (NKR) is not an independent state as it does not meet the criteria set out by the 1933 Montevideo Convention on Rights and Duties of States and, in particular, lacks the requisite of independence. As a matter of fact, no state has recognized Nagorno-Karabakh as an independent entity; even Armenia has not extended its recognition.
Both the UN Security Council and the General Assembly have stated, directly or indirectly, that Nagorno-Karabakh is under foreign occupation (see, for instance, GA 62/243-2008; S/882-1993; S/853-1993; S/874-1993: S/884-1993).
The International Law of Occupation
The sources of international law of occupation are the Regulations annexed to the Hague Convention IV on War on Land of 1907 (specifically, Articles 42–56),76 the Geneva Convention (IV) of 1949 on the Protection of Civilian Persons in Time of War (namely, Articles 47–78),77and the Additional Protocol I of 1977.78 Other specific conventions should also be taken into account, such as that on the Protection of Cultural Property (1954) and its Additional Protocol of 1999. Most of the provisions enshrined in the above-mentioned treaties are now customary international law and the custom has also influenced the old law of occupation, thereby reconciling it with the Charter of the United Nations and the developments of international law. Also, the jurisprudence of the International Court of Justice (ICJ) should be quoted, in particular the Advisory Opinion on the Wall in Palestine (2004) and DRC v. Uganda (2005). It should also be taken into account that often, nowadays, the occupation is no longer a temporary phenomenon, but a semi-permanent status of certain territories, and this has consequently caused a change, in some respects, of the old law of occupation.
The main rules of the law of occupation may be summarized as:
a) The occupier is not the sovereign of the occupied territory. The sovereignty remains under the dispossessed State.
b) Theoccupiercannotannextheterritoryunderoccupation.Anannexationpendente bello is void. Nowadays, annexation is also forbidden by the prohibition of the use of force that has become peremptory international law. Similarly, it is forbidden to install a puppet government to mask a real annexation.
c) It is forbidden to deport or expel the local population. It is likewise forbidden to transfer the population of the occupier into the occupied territory.
d) According to the Hague Regulations, the occupier is not the owner, but only the usufructuary of the occupied territory. It should handle the territory as a goodpater familiae. For instance, it cannot deforest the country and exploit the territory in a manner inconsistent with the canons of good agriculture.
e) According to the Hague Law, the occupier may exploit natural resources for its own profit. Now, however, this rule, as we shall see, should be adapted to the evolution of international law. First of all, the occupier cannot open new mines. Secondly the exploitation of the existing mines should be carried out having in mind the well- being of the local population.
f) The occupier should respect the private property of the local population.
g) The occupier should take care of cultural property.
The International Law Commission Project of Articles on the Protection of the Environment in Times of Armed Conflict
Since 2013, the International Law Commission (ILC) of the United Nations has been dealing with a draft article on the protection of the environment in times of armed conflicts. The working committee has already drafted a number of Principles, three of them specifically related to the protection of the environment in occupied territories (Principles 20–23).79
Principle 20 sets out the duty to respect the obligations of the existing treaties on protection of the environment and to take into account environmental considerations in administering the territory. It also establishes that the occupier should take into account the environmental principles for fostering the well-being of the local population. In so doing, the occupier should not change or eliminate the environmental legislation that applies in the territory or the institutions implementing it.
Of utmost importance is the principle, enshrined in Article 21, dealing with sustainable use of natural resources. In so far as the law of occupation allows the occupier to use them for the benefit of the local population and other lawful uses, natural resources should be exploited in a manner that does not prejudice their sustainability. The Explanatory Report, in commenting on Principle 21, points out that the occupier cannot use the natural resources of the occupied territory for its own personal benefit. This means that the principle of usufruct embodied in the Hague Regulations should be reconciled and interpreted, taking into account the principle of a people’s sovereignty over its own resources, such that they are subject to customary international law, and the principle of sustainable exploitation of natural resources already mentioned.
A role is also played by the principle of self-determination, as set out in Article 1 of both the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, because, as we shall see, human rights apply also in times of armed conflict.
Lastly, Principle 22 sets out a duty of due diligence, thus establishing that the occupier, through its activity in the occupied territory, should not cause any environmental harm to the territories of countries outside the occupied territory.
The Application of Human Rights in Occupied Territories and the Right to a Healthy Environment
The ICJ has had occasion to assess the application of human rights law in occupied territories in the Opinion on the Wall in Palestine as well in the judgment on RDC v. Uganda. The Opinion, unlike the judgment, is related to a case of long-standing occupation and is thus particularly relevant for this paper.
In its Opinion on the Palestinian wall, the Court stated that the following instruments should be applied in the Palestinian occupied territories: the UN Covenant on Civil and Political Rights, the UN Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child (1989).80 The problem is that the occupier is not the sovereign of the territory under occupation. The Court rightly made reference to the concept of jurisdiction that ‘is primarily territorial but may sometimes be exercised outside national territory.’ This is also the practice of the Human Rights Committee for the application of the Covenant on Civil and Political Rights. Much more interesting is the question of the application of the Covenant on Economic, Social and Cultural Rights, since it does not contain a clause on its scope of application. According to the Court, the applicability of that treaty to occupied territories is a matter of interpretation. Moreover, the applicability cannot be ruled out in cases of long-standing occupation, as was the case in Palestine, occupied for 37 years at the time of the ICJ deliberations. This line of reasoning may be easily applied to Nagorno-Karabakh, which has been under occupation for 30 years.
The right to a healthy environment is not embodied as a human right, either in the two Covenants or in the European Convention on Human Rights. It is considered as a human right in other regional treaties, such as the 1981 African Charter on Human and People’s Rights. However, several authors recognize the existence of the right to a healthy environment as a human right stemming from customary international law. The controversial point is only whether the right in question is a collective or an individual right, or both. The drafting of an instrument on the protection of the right to a healthy environment is advocated within the Council of Europe. It could take the form of a Convention or a Protocol additional to the European Convention on Human Rights. The latter solution is preferable because of the application of the judiciary regime set forth by the European Convention.
Occupation and Corporate Responsibility
The ILC draft on the protection of the environment in times of armed conflicts embodies two principles devoted to Due Diligence (Article 19) and Corporate Liability (Article 11).81 The two principles set out obligations for states whose enterprises operate in zones of conflict to enact legislation for imposing respect for the environment. The duty is imposed to the state on whose territory the enterprise operates or to the state hosting the enterprise which operate in a conflict zone. This is in line with a dualistic approach to international law, since the enterprise cannot be directly titular of such rights and duties under the international legal order.
A wider approach on corporate responsibility is followed by both the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises. EU Regulation 2017/821 also deserves to be mentioned. This deals with the import of minerals, including gold, from conflict zones, and thus also applies to occupied territories. The Regulations, which will enter into force on January 1, 2021, set out due diligence obligations to importers of minerals and to enterprises interested in their exploitation.
It is not clear whether the exploitation of natural resources in the occupied territories requires the ‘free, informed and previous’ consent of the local population. The principle of consent has been formulated by the UN General Assembly in relation to the exploitation of natural resources in colonial and non-self-governing territories. However, it is not excluded that it could be applied to occupied territories as a corollary of the principles of self-determination and permanent sovereignty over natural resources, especially in cases of long-standing occupation.
The “Cherry Blossom” Jurisprudence
Is it possible for the sovereign to apply to a foreign tribunal for seizing non-renewable resources excavated by the occupier or by enterprises licensed by the occupier and sold abroad? There is a precedent that is relative to a non-self-governing territory illegally occupied by a foreign state.
The case in question is that of the NM Cherry Blossom, decided by the High Court of South Africa on February 23, 2018. The Cherry Blossom was a ship laden with a cargo of phosphates extracted in Western Sahara, a territory that is occupied by Morocco, which claims to be the sovereign of the territory. The Saharawi Democratic Republic (SADR), which is the entity legally representing the Western Sahara, claimed ownership of the cargo, destined for a New Zealand corporation, as soon as the ship called at Port Elisabeth.
The High Court in very short order established that the SADR was the real owner of the cargo, not the corporation that mined the phosphates or the New Zealand recipient. The order applied, within the admiralty law competence, a more elaborated judgment by the High Court of June 15, 2017.82
Even though the case deals with a non-self-governing territory, it is relevant for the status of occupied territories. As a matter of fact, the Western Sahara is entitled to exercise the right of self-determination and Morocco is only the occupier and not the sovereign of the country. The principle of permanent sovereignty of peoples over their natural resources implies that they should be exploited for the benefit of the people of the territory. This is a limit to the power of the entity administering the territory, especially in case of exploitation of non-renewable resources, as already pointed out.
The Exploitation of Nagorno-Karabakh according to the Report Annexed to the Letter Addressed by Azerbaijan to the UN Secretary General (2016)
On February 15, 2016, the Permanent Representative of Azerbaijan to the United Nations addressed a letter to the Secretary General with an annex embodying a report from his government on the activities carried out by Armenia in Nagorno-Karabakh.83The annex to the report of the Ministry of Foreign Affairs of Azerbaijan is titled ‘Illegal economic and other activities in the occupied territories of Azerbaijan.’ The annex is very detailed, and the claimed illegal activities are thoroughly analyzed from both factual and legal points of view. The following is a sample of the most representative activities listed.
a) Transfer of Armenian population from Armenia’s territory and attraction of people belonging to the Armenian diaspora abroad, including Armenian Syrian refugees. Expulsion of Azerbaijani residents.
b) Exploitation of mineral resources including precious metals, such as gold, and very valuable metals, such as copper. Mining activity is being carried out including through the opening of new sites.
c) Exploitation of rare/precious trees, such as timber, carried out in such a way as to cause serious damage to forests and the environment.
d) Depletion of water reservoirs caused by intensive agriculture, with the aim of attracting Armenians and expelling local people.
e) Opening new archaeological excavations and manipulating the existing sites, with the purpose of eliminating the Azerbaijani cultural inheritance.
It is worth noting that mining is carried out not only by enterprises based in Armenia, but also by entities registered abroad, especially those involved in mining precious metals.
Legal Evaluation of Activities Carried out in Nagorno-Karabakh
As already pointed out, the activities carried out in Nagorno-Karabakh should be attributed to Armenia, since the self-proclaimed Republic of Nagorno-Karabakh cannot be considered an independent state. According to information drawn from the letter of the Representative of Azerbaijan to the UN Secretary General and the list of activities described above, the works carried out in Nagorno-Karabakh should be considered as contrary to both treaties and customary international law.
a) The transfer of the population of the occupier is contrary to the Geneva Convention (IV). The same is true for the expulsion of the local population (Art. 49, Geneva Convention (IV)).
b) The intensive exploitation of mineral resources and the opening of new mines by the occupier is contrary to customary international law.
c) The economic activities have damaged and are still damaging the environment. The protection of the environment stems both from conventional and customary international law. Protocol I, additional to the 1949 Geneva Conventions, embodies two provisions on the protection of the environment: Article 35, para. 2 and Article 55.
It is also necessary to take into account other sources of treaty law. According to the ILC Draft Articles on the Effect of War on Treaties, treaties on the protection of the environment remain in force between belligerents, unless otherwise stated in the treaty itself.84 For instance, Armenia and Azerbaijan are parties to the UN Convention on Biological Diversity, which should continue to be applied in the occupied territories. The principle of application of conventional and customary international law is confirmed by the work of the ILC on draft principles on the protection of the environment in times of armed conflicts. The ICJ has confirmed the continuing application of norms on environmental protection in its advisory opinion on the threat or use of nuclear weapons.85Declarations of principles, such as the Stockholm Declaration on Human Environment (1972) and the Rio Declaration on Environmental Development (1992), have laid down principles that are now considered part of customary international law.
d) The intensive exploitation of the occupied territory is not only contrary to the principle of usufruct embodied in the Hague Regulations, but also to other principles that have emerged from the evolution of customary international law, such as the permanent sovereignty of peoples over their natural resources. Expropriation/confiscation of private property is forbidden by a well-settled principle of the international law of armed conflict.
e) Lastly, attempts to cancel the cultural heritage of the occupied territory are contrary to the Hague Convention of 1954 and its Additional Protocol of 1999 (respectively, Art. 5 and Art. 1) as well to Article 53 of Protocol I in so far as it enshrines a general principle on respecting cultural property.
The violations of international law committed by Armenia as the occupier of Nagorno- Karabakh are manifold and are not confined only to the infringement of international environmental law. These violations fall under the law of international responsibility, and the ILC draft articles on states’ responsibility indicate possible remedies, including third-party action such as countermeasures if serious violations of international law are committed.86
The point has been illustrated by other commentators, in particular Professor Alain Pellet in his ‘Legal opinion on third party obligations with respect to the legal, economic and other activities in the occupied territories of Azerbaijan,’ annexed to the letter, already quoted, of the Permanent Representative of Azerbaijan to the UN Secretary General.87 It is also necessary to take into account the opinions given by Professor Yoram Dinstein88 and Professor Malcom N.Shaw89, as well as the recent document embodied as an annex to the letter addressed by the Permanent Representative of Azerbaijan to the UN Secretary General in 2020.90
Here, by way of concluding remarks, it is convenient to raise an almost neglected issue, that is, whether the Cherry Blossom jurisprudence may be applied to the case of Nagorno-Karabakh and the depletion of its natural resources. As a consequence of the principle of permanent sovereignty of peoples over their natural resources, the greater part of the licenses issued by the occupier or by the Nagorno-Karabakh entity should be considered as void. This implies that the resources mined in the Nagorno-Karabakh territory belong to Azerbaijan. It means that Azerbaijan may bring a civil action against those companies in possession of the resources. An action may be brought before an Armenian court, but it seems unrealistic. However, there is a possibility of bringing an action before a tribunal of a third state where the assets are located (or before a tribunal of the state of nationality of the enterprise). The main hurdles are the principle of sovereign immunity and the political question, as the proceedings involve a sovereign state, that is, Armenia. A possible way out might be the disapplication of those principles, since in this case they conflict with a peremptory norm of international law (the prohibition of aggression).
Read the original article on aircenter.az .