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Is there a principle of `preservation of territorial integrity' in
international law?
[ 2011/01/29 | 14:40 ] politics
Or, As always - what to do?
Let us state at once that there is no principle of `preservation of
territorial integrity' in international law. The fourth clause of
Article 2 of the Charter of the United Nations (UN) declares only the
following: `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, or in any other manner
inconsistent with the Purposes of the United Nations'.
This clause does not have anything to do with the preservation of
`territorial integrity', that is, the inviolability of the territory
of any state. According to an authoritative commentary on the law on
foreign relations of the United States, it is simply a clause against
invasion, a `prohibition of use of force' (Restatement of the Law
(3rd). The Foreign Relations Law of the United States, The American
Law Institute, Washington, 1987; v. 2, § 905 (7), p. 389), and it
merely calls upon refraining from `the use of force by one state to
conquer another state or overthrow its government' (Ibid, p. 383).
The phrasing `against the territorial integrity or political
independence of any state' found its way into the UN Charter upon the
request of certain smaller states, as a certain guarantee that `force
could not be used by the more powerful states in violation of the
`territorial integrity or political independence' of weaker states'
(Leland M. Goodrich, Edward Hambro, Charter of The United Nations,
Commentary and Documents, [second and revised edition], Boston, 1949,
p. 103).
It is evident that this clause does not contradict the principle of
self-determination of peoples and has absolutely nothing to do with
the contrived, so-called principle of `preservation of territorial
integrity' which does not exist in international law, but is thrown
about due to political considerations (Ara Papian, On the Principles
of Self-Determination and so-called `Territorial Integrity' in Public
International Law, (The Case of Nagorno-Karabagh), Noravank
Foundation, `21st Century', # 2, 2010
http://www.noravank.am/arm/jurnals/details.php?ELEMENT_ID=5189).
A legitimate question may arise, then: what to do? What to do when
there are differences of opinion on a point of international law or
its interpretation? The response is simple and clear - one must appeal
to a body that has the corresponding authority and competence to
interpret the given issue and, more significantly, to make a ruling on
it. That very body for international law is the International Court of
Justice (ICJ), which, in accordance with clause 2(b) of Article 36 of
its Statute, has jurisdiction over discussing and deciding on `any
question of international law'.
It has become clear today that, when it comes to the Nagorno-Karabakh
conflict, the supposed contradiction between the principle of
`self-determination of peoples', its manifestations and complexities,
and the invocation of the so-called `preservation of territorial
integrity', has ceased to be a purely legal issue.
The question of life and death for thousands of people are at stake.
Without rendering similar the understanding of the principle of
`self-determination of peoples', it would be impossible to deal with
these issues. Without making clear what is meant by `territorial
integrity', and from what it may be preserved to what degree, it would
be impossible to come up with a solution to the Nagorno-Karabakh
conflict.
Accordingly, the Republic of Armenia and the Republic of Azerbaijan,
as member-states of the United Nations, must jointly appeal to the
court of the UN, namely the International Court of Justice, with more
or less the following questions:
1. Does international law contain a `principle of self-determination
of peoples'? If yes, then, does the `principle of self-determination
of peoples' apply to collective unit of a people who are found outside
of a nation-state of that people already existing? If yes, then are
there any limitations to that self-determination?
2. Does international law contain a `principle of preservation of
territorial integrity'? If yes, then does that principle limit a
`principle of self-determination of peoples', denying the collective
unit in question the right to political self-determination?
Both the Armenian parties and the Azerbaijani side have on numerous
occasions expressed with confidence that their positions are based on
international law. But they are not the ones who decide such matters.
Even the mediators do not possess the authority to do so. There is a
competent body in international law with jurisdiction over such
questions.
I believe that the time has come for the mediators to approach the
sides with the request to present such appeals to the International
Court of Justice. They should then be combined and put forth at the
ICJ as per its procedures. If one of the sides should decline, then it
would imply that its rhetoric on how its position is based on
international law is meaningless.
The international community should pursue the matter accordingly. In
that case, the mediators should themselves, on behalf of the UN
Security Council and as per Article 65 of the ICJ Statute, approach
the ICJ for a clarification and advisory opinion on the aforementioned
questions.
As difficult as it would be to come to a decision for a solution to
the Nagorno-Karabakh conflict, it would doubtless be twice as
difficult to actually implement it. And so, a clarification by the
International Court of Justice on certain basic points of the conflict
and a decision on them would create a legal and beneficial basis for a
solution to the conflict, as it would eliminate the differences of
opinion on principles of fundamental legal issues as presently borne
by the parties to the conflict.
Ara Papian
Head of the Modus Vivendi Centre
28 January, 2011
http://hetq.am/en/politics/a-papyan-28/
From: A. Papazian
international law?
[ 2011/01/29 | 14:40 ] politics
Or, As always - what to do?
Let us state at once that there is no principle of `preservation of
territorial integrity' in international law. The fourth clause of
Article 2 of the Charter of the United Nations (UN) declares only the
following: `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, or in any other manner
inconsistent with the Purposes of the United Nations'.
This clause does not have anything to do with the preservation of
`territorial integrity', that is, the inviolability of the territory
of any state. According to an authoritative commentary on the law on
foreign relations of the United States, it is simply a clause against
invasion, a `prohibition of use of force' (Restatement of the Law
(3rd). The Foreign Relations Law of the United States, The American
Law Institute, Washington, 1987; v. 2, § 905 (7), p. 389), and it
merely calls upon refraining from `the use of force by one state to
conquer another state or overthrow its government' (Ibid, p. 383).
The phrasing `against the territorial integrity or political
independence of any state' found its way into the UN Charter upon the
request of certain smaller states, as a certain guarantee that `force
could not be used by the more powerful states in violation of the
`territorial integrity or political independence' of weaker states'
(Leland M. Goodrich, Edward Hambro, Charter of The United Nations,
Commentary and Documents, [second and revised edition], Boston, 1949,
p. 103).
It is evident that this clause does not contradict the principle of
self-determination of peoples and has absolutely nothing to do with
the contrived, so-called principle of `preservation of territorial
integrity' which does not exist in international law, but is thrown
about due to political considerations (Ara Papian, On the Principles
of Self-Determination and so-called `Territorial Integrity' in Public
International Law, (The Case of Nagorno-Karabagh), Noravank
Foundation, `21st Century', # 2, 2010
http://www.noravank.am/arm/jurnals/details.php?ELEMENT_ID=5189).
A legitimate question may arise, then: what to do? What to do when
there are differences of opinion on a point of international law or
its interpretation? The response is simple and clear - one must appeal
to a body that has the corresponding authority and competence to
interpret the given issue and, more significantly, to make a ruling on
it. That very body for international law is the International Court of
Justice (ICJ), which, in accordance with clause 2(b) of Article 36 of
its Statute, has jurisdiction over discussing and deciding on `any
question of international law'.
It has become clear today that, when it comes to the Nagorno-Karabakh
conflict, the supposed contradiction between the principle of
`self-determination of peoples', its manifestations and complexities,
and the invocation of the so-called `preservation of territorial
integrity', has ceased to be a purely legal issue.
The question of life and death for thousands of people are at stake.
Without rendering similar the understanding of the principle of
`self-determination of peoples', it would be impossible to deal with
these issues. Without making clear what is meant by `territorial
integrity', and from what it may be preserved to what degree, it would
be impossible to come up with a solution to the Nagorno-Karabakh
conflict.
Accordingly, the Republic of Armenia and the Republic of Azerbaijan,
as member-states of the United Nations, must jointly appeal to the
court of the UN, namely the International Court of Justice, with more
or less the following questions:
1. Does international law contain a `principle of self-determination
of peoples'? If yes, then, does the `principle of self-determination
of peoples' apply to collective unit of a people who are found outside
of a nation-state of that people already existing? If yes, then are
there any limitations to that self-determination?
2. Does international law contain a `principle of preservation of
territorial integrity'? If yes, then does that principle limit a
`principle of self-determination of peoples', denying the collective
unit in question the right to political self-determination?
Both the Armenian parties and the Azerbaijani side have on numerous
occasions expressed with confidence that their positions are based on
international law. But they are not the ones who decide such matters.
Even the mediators do not possess the authority to do so. There is a
competent body in international law with jurisdiction over such
questions.
I believe that the time has come for the mediators to approach the
sides with the request to present such appeals to the International
Court of Justice. They should then be combined and put forth at the
ICJ as per its procedures. If one of the sides should decline, then it
would imply that its rhetoric on how its position is based on
international law is meaningless.
The international community should pursue the matter accordingly. In
that case, the mediators should themselves, on behalf of the UN
Security Council and as per Article 65 of the ICJ Statute, approach
the ICJ for a clarification and advisory opinion on the aforementioned
questions.
As difficult as it would be to come to a decision for a solution to
the Nagorno-Karabakh conflict, it would doubtless be twice as
difficult to actually implement it. And so, a clarification by the
International Court of Justice on certain basic points of the conflict
and a decision on them would create a legal and beneficial basis for a
solution to the conflict, as it would eliminate the differences of
opinion on principles of fundamental legal issues as presently borne
by the parties to the conflict.
Ara Papian
Head of the Modus Vivendi Centre
28 January, 2011
http://hetq.am/en/politics/a-papyan-28/
From: A. Papazian