“Molecular cells develop by partitioning” – this is an extract from Biology class for schoolchildren. In a very similar way, if we take the microcosm of international affairs, state partition is one of the patterns how new states emerge, as there are left no terra incognita to be discovered. There is no other issue in international relations since the Treaty of Westphalia, or even earlier, to occupy the minds of statesmen and policymakers more than this. Despite all previous hotspot discussions, both in politics and the law, this issue remains controversial.

As next year two ambiguous states, Azerbaijan and Pakistan, enter the UN Security Council for two year non-permanent membership, chances are high that state sovereignty and territorial integrity-related issues will be discussed at the “Table no. 1”, as both are engaged in ethno-territorial conflicts, respectively, about Nagorno-Karabakh and Kashmir (India also holds membership until 2013).

Ideally, state partition shall happen without any direct foreign intervention to stay purely legal. Otherwise, parent-states are good at pointing at Articles 2(4) and 2(7) of the UN Charter, which genuinely prohibit any intervention into domestic affairs of sovereign states without any reference to the nature of the government at stake. The Definition of Aggression, adopted in General Assembly in 1974, is very strict in this regard, though rarely cited by Security Council even in outrageous cases like Iraq’s invasion of Kuwait in 1990. However, the emerging norm of R2P, authored by a panel of prominent experts and chaired by former foreign minister of Australia Gareth Evans still in 2001 tried to fix the bugs and connect the dots of the evolving world order, where human rights and freedoms count for more than state sovereignty.

State practice increasingly suggests that the modern system of interstate relations is developed enough not to stand bloody dictators like Saddam Hussein, Omar al Bashir, Laurent Gbagbo, Colonel Qaddafi and many those who “inherit” their regime with rigged elections at best. President al Bashir of Sudan has two arrest warrants issued against him by the International Criminal Court, and so had Colonel Qaddafi, who was killed extrajudicially rather than surrendered to the ICC in the flow of the civil war, while Ivorian leader Gbagbo faces charges now in the Hague. Thus, the sovereignty of their regimes has generally been put conditional to their respect towards human rights and freedoms. So-called “conditional sovereignty” is what the emerging doctrine of R2P suggests. To walk the talk of Evans’s commission, the UN Security Council resolution 1674 (2006) incorporated two paragraphs of 2005 UN World Summit Outcome Document, reaffirming dual responsibility for human rights abuses – on domestic, i.e. governmental as well as international (i.e. erga omnes) levels – which has been included in many other UN SC resolutions ever since.

The case for Azerbaijan and Nagorno Karabakh

Azerbaijan state officials, primarily the President and the Foreign Minister – both involved in OSCE Minsk Group-led top secret, behind-the-scene talks to manage the Nagorno-Karabakh conflict - continuously claim that four UN SC resolutions of April-November 1993 (822, 853, 874, 884) about the conflict in and around Nagorno-Karabakh (1) “unconditionally” demand from (2) Armenia to withdraw armed forces from the “occupied territories”, as well as (3) recognize the territorial integrity of Azerbaijan. If the first two claims are easy to refute just offering those opponents printouts of said UN SC resolutions and advise them to read texts in entirety; the third claim on “territorial integrity” indeed requires more than naked links.

First and foremost, the UN SC resolution 874, indeed, claims that the region of Nagorno Karabakh, as well as certain adjacent regions where the armed forces of local Armenians - to employ the vocabulary of the UN SC - have invaded (Res. 822), are parts of Azerbaijan - at the time of their adoption.

Given the fact that, as mentioned above, Azerbaijan will occupy two-year seat in the Security Council in 2011-13, confusion regarding UN SC relevant four resolutions of 1993 shall be addressed thoroughly in order to escape miserable manipulations down the road. An important argument has yet been missing to counter a two decade-long perplexity in interpretations.

Azerbaijan was admitted to United Nations by invocation of uti possidetis juris principle, which had been equally applied, though with mixed success, in Africa, former Yugoslavia, DRC, Sudan and for the most part in Soviet Union. Not going deep into the legal research, we shall mention the Note by the President of UN SC of February 14, 1992, which is the Security Council recommendation to grant full membership to newly emerging state of Azerbaijan. With this document the Security Council agreed to the membership citing “the principle of universiality”, which under the reality of Soviet Union dissolution should have been understood as an indication of uti possidetis juris principle applied to a former empire’s province. In other words, paying no attention to the fact that on October 18, 1991, the Constitutional Act on the State Independence declared Azerbaijan the successor of 1918-20 Azerbaijan Democratic Republic (which, in turn, didn’t include Nagorno Karabakh in any way), the United Nations adopted new membership as a natural fact after an empire collapse and in the “last known” borders of Azerbaijani SSR.

With this option the Security Council acted under its primary role of maintaining international peace and security (Art. 24) and tended to escape chaotic border reshuffle, putting it on the shoulders of two stakeholders – Armenia and Azerbaijan – to solve their differences peacefully. And so, it was not at all surprising to see the Security Council’s first session under “Situation relating to Nagorno Karabakh” agenda item to quote Armenia’s and Azerbaijan’s membership obligations to solve the tension peacefully. However, that was not the ideal solution, as the small intensity war had been ongoing since early 1990.

Realizing the legal conundrum under the basis of its establishments, Azerbaijan revisited its official position and since late 2008 started to argue that it had reached not only membership to the United Nations, but also title over the breakaway Nagorno Karabakh through the application of the principle of uti possidetis juris (A/63/662-S/2008/812, (Dec. 22, 2008) p. 5, para 10-11.).

Lessons from Sudan

Here we shall take a deep breath on Karabakh and pay attention to Sudan/South Sudan deliberations which has been under the Security Council consideration for a long time, and is the latest pattern of officially and legally recognized state partition to this day. To shorten the passage, only the relevant Security Council resolutions of 2010 and 2011 are assessed, to catch both the preceding and actual year of observed state partition of Sudan.

Those 10 resolutions have at least two similar points with the relevant four resolutions on Nagorno Karabakh (1993).

First: they “reaffirm commitment to the cause of peace throughout Sudan, to the sovereignty, independence, unity and territorial integrity of Sudan” (S/RES/1945 (2010), emphasis added), even though it had been obvious since 2005’s agreement, that an eventual (delayed) referendum would most likely divide the North and the South. To be observed between the lines, the Res. 1919 (2010) and others onwards even cite the R2P doctrine by reference to Res. 1674 (2006).

Hence, right after the proclamation of independence of South Sudan (July 9), but still before the accession of the latter to the UN (July 14), the Security Council already “reaffirmed” in resolution 1997 “…its commitment to the sovereignty, unity, territorial integrity and political independence of Sudan and South Sudan…” (emphasis added).

And second: the relevant statements and resolutions underscore the need for “safe and unhindered access for humanitarian workers to the population in need of assistance”, putting the primary responsibility for this upon the Government of Sudan (prior to the independence of the South). In the case of Nagorno-Karabakh, all resolutions called for “unimpeded access of humanitarian relief efforts” (e.g. Res. 822) while recognizing that the region (including Armenia) is under blockade from Azerbaijan and Turkey.

To sum up this preliminary discussion, it shall be underlined that the Security Council resolutions and statements, having a supreme value to the world order and international peace and security by virtue of the UN Charter, are nothing more but a conclusion, necessarily balanced, of the facts on the ground, which are permanently shaped by the evolving order. The four UN SC resolutions on Nagorno Karabakh could not in any way single out a non-member state – Nagorno Karabakh – in a conflict which was undergoing allegedly inside single member-state – Azerbaijan. The UN SC has never supported or recognized national liberation movements in its resolutions, with a possible exception of Palestine Liberation Organization. Instead, the Security Council underlined calls of direct talks between the parties involved, i.e. Azerbaijan and Nagorno Karabakh, in member-state vote explanation notes. Moreover, the four resolutions underlined non-participation of other, recognized regional states in the conflict by affirming the “inviolability of international borders”, e.g. between Armenia and Azerbaijan.

Evidently, the 20 years of de facto independence of Nagorno-Karabakh, the effective control of its democratically elected authorities and sovereignty over domestic decisions and foreign policy, is a sound fact to push for a renewed consideration for its le droit d'exister, to quote a famous XIX century French philosopher Ernest Renan.

Hovhannes Nikoghosyan, PhD, Chair of Political Processes Department, Russian-Armenian (Slavonic) University. These views are his own.