Thawing the frozen conflict? The European Court’s Nagorno-Karabakh Judgments

6 June 2015
Thawing the frozen conflict? The European Court’s Nagorno-Karabakh Judgments

Philip Leach assesses the implications of the recent European Court judgments upholding the rights of refugees and IDPs displaced by the Nagorno-Karabakh conflict


Last September, Erik Fribergh, the Registrar of the European Court of Human Rights, told Government representatives on the Steering Committee for Human Rights (CDDH) that ‘the Court is … not equipped to deal with large scale abuses of human rights. It cannot settle war-like conflicts between States.’ Yet, as Fribergh noted, the Court is increasingly being called on to adjudicate on such situations. Through the two Grand Chamber judgments delivered on 16 June (Sargsyan v Azerbaijan and Chiragov v Armenia) has the European Court entered into the terrain of international conflict resolution? Both judgments upheld the European Convention rights of families displaced by the Nagorno-Karabakh conflict in the early 1990s, a conflict that created hundreds of thousands of refugees and internally-displaced persons (IDPs) on both sides, and which has remained unresolved in the ensuing decades. Peace negotiations have been held under the auspices of the OSCE ‘Minsk Group’ (co-chaired by France, Russia and the United States), but as the judgments make clear, settlement negotiations have repeatedly failed, due to the uncompromising attitudes of both Governments. The cases are legally important, given the Court’s position on the jurisdictional reach of the Convention, which Marko Milanovic has previously discussed here. They are politically significant too – in emphasising the importance of the two states establishing a property claims mechanism, and giving the parties to the cases 12 months to come back with proposals on redress, the Court has arguably given significant fresh impetus to the resolution of the ‘frozen conflict’.

The circumstances – and the Court’s findings

Minas Sargsyan and his family, ethnic Armenians, lived in the village of Gulistan just north of the Nagorno-Karabakh region, but within Azerbaijan. In June 1992 the village was heavily bombed by Azerbaijani forces, and the villagers fled for their lives. The Sargsyans resettled as refugees in Armenia. The applicants in the Chiragov case were Azerbaijani Kurds living in the Lachin region which came under repeated attack and they too fled, in May 1992, shortly before the town of Lachin was captured by forces of Armenian ethnicity. They were subsequently not able to return to the region and therefore lived as IDPs elsewhere in Azerbaijan.

In both cases the applicants’ complaints about the loss of their homes, land and property were upheld, with the Court finding continuing violations of their rights under Article 1 of Protocol 1 (the peaceful enjoyment of property), Article 8 (the right to respect for private and family life and home) and Article 13 (the right to an effective remedy).

Invalid declaration

Before reaching the question of the merits of both cases, the Court had to address a series of objections raised by the Governments in terms of admissibility points and as regards the central question of their jurisdiction. Indeed, these judgments need to be read together with the separate admissibility decisions (here and here) published in December 2011. In Sargsyan, on the basis of a declaration made at the time it ratified the European Convention, the Azerbaijan Government argued that its responsibility under Article 1 of the Convention was engaged only in respect of those parts of its territory over which it exercised control. However, in its admissibility the Court had found that such a declaration could not restrict the territorial application of the Convention to certain parts of the internationally recognised territory of the Republic of Azerbaijan (in view of Article 56 of the Convention). Furthermore, it was not deemed to be a valid reservation under Article 57 of the Convention, as it neither referred to a specific provision of the Convention, nor to a specific provision of Azerbaijani law. In Chiragov, the Court was required to consider, and rejected, an argument put forward by the Armenian Government that in view of the involvement of the OSCE Minsk Group in the ongoing negotiations, the case should be declared inadmissible as its subject matter had already been submitted to another international institution for settlement (Article 35(2)(b) of the Convention).

Continuing situations

Both Governments argued that the applicants’ complaints concerned instantaneous acts in 1992 (the destruction of their property) which therefore fell outside the Court’s jurisdiction ratione temporis. However, the Court rejected these arguments, finding that their lack of access to homes and land (and in the Sargsyan case, to family graves) was a continuing situation. Nor was it too late for the applicants to have submitted their Strasbourg complaints in 2005 (Chiragov) and 2006 (Sargsyan) given both their vulnerable situation as IDPs or refugees from the conflict and the fact that the two states had only ratified the European Convention in 2002.

Domestic Remedies

The question of the exhaustion of domestic remedies was hotly disputed – both Governments were found to have failed to demonstrate that in practice there were any avenues of redress for those displaced by the conflict. In Chiragov the Court emphasised that as the Armenian Government had denied that its armed forces (or its other authorities) had been involved in the events at issue in the case, and that it denied jurisdiction, the applicants could not reasonably be expected to have brought claims before the Armenian courts. In Sargsyan, the Court noted the considerable practical difficulties in bringing and pursuing domestic legal proceedings, given that no peace treaty had been concluded, there were no diplomatic relations between the two states, the borders were closed and postal services were not viable. Furthermore, the Azerbaijani Government had failed to provide a single example of a case in which a person in the applicant’s situation had been successful before the Azerbaijani courts.


On the fundamental question of the two states’ jurisdiction and responsibility, the Grand Chamber also dismissed the Governments’ objections. The jurisdictional circumstances of each case were quite different. The Chiragov case concerned the extra-territorial reach of the Convention (did Armenia have jurisdiction over events occurring within the territory of Nagorno-Karabakh?), whereas in Sargsyan the key question was whether Azerbaijan was still considered to exercise jurisdiction over a part of its own territory over which it claimed to have lost control.  

At issue in Chiragov was whether Armenia exercised ‘effective control’ over Nagorno-Karabakh and the surrounding territories. On the available evidence, the Court found it established that Armenia had been significantly involved in the Nagorno-Karabakh conflict from an early date, as a result of its military presence and the provision of military equipment and expertise. Such support ‘has been – and continues to be – decisive for the conquest of and continued control over the territories in issue’. Furthermore, taking account of the close political links, and other provision of support, the Court found that Armenia and the ‘Nagorno-Karabakh Republic’ were ‘highly integrated in virtually all important matters’.

In the Sargsyan case, the location and status of the village of Gulistan, where the Sargsyan family had lived, was highly contested – notably as to its proximity to the two states’ military positions. On the available evidence, the Court found that it was not established that Azerbaijani forces were (or had been) present in Gulistan; however, there was also no evidence that the ‘Nagorno-Karabakh Republic’ had positions or troops in the village. The Grand Chamber therefore concluded that as the village was situated in the internationally recognised territory of Azerbaijan, a presumption of jurisdiction applied (see Assanidze v Georgia and Ilasçu v Moldova and Russia). A limitation of a state’s responsibility had only previously been accepted in respect of areas where another state or separatist regime exercised effective control, and the Court rejected the Azerbaijani Government’s argument that this should be extended to disputed zones, or ‘areas which are rendered inaccessible by the circumstances’.

Inadequacy of the peace negotiations

What impact, if any, will these judgments have on future negotiations over the Nagorno-Karabak conflict? It was a central feature of both judgments that the Court made resoundingly clear its view of the inadequacy of both states’ stances towards the settlement negotiations. For example, in Sargsyan, it underlined that:

‘…. it is the responsibility of the two States involved in the conflict to find a political settlement of the conflict…. Comprehensive solutions to such questions as the return of refugees to their former places of residence, re-possession of their property and/or payment of compensation can only be achieved through a peace agreement. Indeed, prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to resolve the Nagorno‑Karabakh conflict through peaceful means…Although negotiations have been conducted in the framework of the OSCE Minsk Group, more than twenty years have gone by since the ceasefire agreement in May 1994…without a political solution being yet in sight. As recently as June 2013 the Presidents of the Co-Chair countries of the Minsk Group…have expressed their “deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process” … (Sargsyan, para. 216)

As Gulistan was situated in an area of military activity, the Court found that it was justifiable on grounds of safety to refuse the former villagers access to it. Nevertheless, in such a situation, the State still had a duty to take ‘alternative measures’ in order to secure property rights, which were a key pillar of the negotiations:

The right of all internally displaced persons and refugees to return to their former places of residence is one of the elements contained in the 2007 Madrid Basic Principles which have been elaborated in the framework of the OSCE Minsk Group…and form the basis of the peace negotiations. (Sargsyan, para. 236)

The mere fact that peace negotiations were on-going did not absolve the two Governments from taking other measures, especially when negotiations had been pending for such a long time, without leading to tangible results. In both cases, the Court directed the Governments’ attention towards international standards on property rights (notably the UN Pinheiro Principles), concluding:

…it would appear particularly important to establish a property claims mechanism, which should be easily accessible and provide procedures operating with flexible evidentiary standards, allowing the applicant and others in his situation to have their property rights restored and to obtain compensation for the loss of their enjoyment. (Sargsyan, para. 238, Chiragov, para. 199)

The potential for change?

How likely is it that these decisions will lead to real change on the ground? There is a positive precedent in the context of another long-standing and intense political dispute – property claims in northern Cyprus. In its 2005 judgment in Xenides-Arestis v Turkey, the Court directed the Turkish Government to introduce a mechanism of redress for property claims within three months, which led to the establishment of the Immovable Property Commission (IPC) (whose composition included a former Secretary General and Deputy Secretary General of the Council of Europe). Subsequently, in its decision in 2010 in Demopoulos v Turkey, the Grand Chamber found that the IPC provided an accessible and effective framework of redress. Elsewhere, the Court made a creative, and ultimately successful, contribution to resolving large-scale property claims in Poland, stretching back to the aftermath of the Second World War (Broniowski v Poland). It has also directed a number of states (albeit with mixed results) to introduce mechanisms to redress mass property claims: examples include Romania, Albania and Italy. Furthermore, the Court can be increasingly prescriptive in such contexts, for example, directing states to take measures in order to prevent the unlawful occupation of immovable property (Sarica and Dilaver v Turkey) and stipulating factors to be taken into account in calculating compensation for expropriated property (Yetiş v Turkey).

The Nagorno-Karabakh judgments provide an unprecedented opportunity for the international community to seek to ensure that the victims of the conflict – the hundreds of thousands of refugees and IDPs – can now receive redress. In the light of recent reports that the situation between the two states is in fact worsening, there is an even greater urgency for the deadlock to be broken. Both states are, and will continue to be, in violation of the European Convention unless and until the two Grand Chamber judgments are implemented. So, will the three co-chairs of the OSCE Minsk Group take this opportunity to exert the requisite diplomatic pressure on the two states? Given the confidential nature of the Minsk process, it is very hard to say how the co-chairs will respond. However, as a result of the judgments, a new player now has a role in the resolution process, namely the Council of Europe, which is in a position to pursue the interests of the individual victims of the conflict, independently of the political machinations inherent in the OSCE Minsk Group negotiations. Using the two Grand Chamber judgments as (legally binding) pressure points, Council of Europe states have a significant and timely opportunity, through the Committee of Ministers’ implementation process, to exert a level of influence which could be decisive.


Note: EHRAC and Legal Guidean Armenian NGO, represented the applicants in Sargsyan v Azerbaijan

An abridged version of this blog was first published on the European Journal of International Law Talk! website.