Coming back from the New Year’s vacations on January 9, the Grand Chamber of the European Court of Human Rights vigorously set to full discussion of two interesting cases - “Chiragov and Others against Armenia” and “Sargsyan against Azerbaijan”. These suits submitted in 2005 and 2006 respectively are interesting as it’s the first time that an international judicial instance is going to examine issues related to the outcomes of Nagorno Karabakh conflict on the legal level.

I think the main intrigue of the trials is as follows: is Armenia responsible for the war between Nagorno Karabakh and Azerbaijan in 1992-1994 and its outcomes, and if yes - to what extent?

It should be noted that the documentary reference of “Chiragov and others against Armenia” case objectively outlines the path of the NKR independence mentioning valuable quotes from resolutions of the UN Security Council and PACE.

The first hearing of the two cases took place back on September 15, 2010. It should be recalled that Elkhan and Adishirin Chiragovs who got Schengen visas to participate instead of arriving in Strasburg supposedly setoff to Germany to get a refuge.

The geographical peculiarities of the two cases are also worth paying attention to.

“Sargsyans” case is linked to Gyulistan village of Shahumyan district which is currently under the Azerbaijani occupation though it legally makes an inseparable part of the NKR. And “Chiragovs” case is set in the Lachin district which has “a transitional”, unclear status according to the Constitution (Article 142) though it’s within the NKR sovereignty.

It’s also important for Article 56 of the European Convention on Human Rights envisages some territorial restrictions for fulfilling its provisions noting that the signing sides can inform the CoE Secretary General about “the territories” realization of which international relations they are responsible for.

As is known, Armenia has never made a statement in any instance according to which it undertakes the responsibility for the NKR international commitments. Moreover, the Supreme Council of Armenia defined in the resolution adopted on July 8, 1992, that it respects the NKR statehood and decisions made by its authorities and people whereas “Chiragovs” case invites Republic of Armenia as a responder in the court trial related to the right for property on the territory within the factual jurisdiction of the NKR.

Over several years, falling back upon propaganda maneuvers on “Armenia’s having occupied 20% of Azerbaijani territories”, Azerbaijan could never find any legal or political points in the documents of serious international organizations - OSCE and UN Security Council first of all – to prove this, and limited itself to its own comments and resolutions which were constantly churned out on the level of Organization of the Islamic Conference.

International law and international courts have worked out two tests to understand the level of involvement of third parties in affairs of particular states through “effective” and “general” control.

For example, UN International Court is consistently guided by the test of “effective control” so does Azerbaijan given the report on December 24, 2008, addressed to the member states of the UN and UN Security Council (document/2008/812). In this report, Azerbaijan points out displacements of the senior officials in the Armenian and NKR state circles as a key argument [para. 47-48].

At the preliminary court hearing back in 2010, representative of the Armenian government Gevorg Kostanyan stressed that Armenia doesn’t have jurisdiction, that is – it doesn’t carry out “an effective control” on the NKR territories and neighboring regions. The court notes in the decision made on examining “Chiragovs” case published a few days ago that “it joins the [Armenian] government’s objections”  that it doesn’t have any jurisdiction on the NKR territory and can’t be called to responsibility under the provisions of the Convention’s N1 clause. The court simultaneously decided to shift the issue to the discussion phase due to lack of enough information. 

Armenia’s position to “Chiragovs” case is as follows: apart from the problems with confirming their identity, the complainants didn’t pass the instances on the local level, that is – they didn’t turn to the NKR authorities reporting the possible violation of rights envisaged by the NKR law on refugees. Here it should be noted that during the first hearings, one of the judges asked the claimants whether they had turned to the NKR authorities to demand restoring their property rights …

I’d like to note that the way the question is put doesn’t at all mean that Armenia will ever be able to “wash its hands of it” but an attempt is made to present to the international community in a comprehensible language that the NKR is an independent, sovereign and democratic state which can participate in the international life on its own especially as far as the problems of its citizens who will be ready to live within the NKR Constitution and legislation are concerned.

It’s also clear that as the first court hearing related to the outcomes of the Nagorno Karabakh conflict, any decision of the European Convention of Human Rights will be a precedent in the issue of restoring rights of people who became refugees or had to become migrants as a result of the conflict.

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