The Nagorno Karabagh Crisis:
A Blueprint for Resolution
A Memorandum Prepared by the
Public International Law and Policy Group
May 2000
Table of
Contents
I.
Introduction
II.
Background
A.
Brief History of the Conflict
1.
Before Sovietization
2.
Nagorno Karabagh Under Soviet Azerbaijani Rule: 1920-1988
3.
1988 to the Present
B.
The Peace Process
1.
Mediation by the
2.
Actions Taken by the United Nations Security Council
3.
OSCE Mediation Efforts
C.
Identification of Strategic Interests
1.
2.
3.
4.
5.
Western oil companies
D.
US Congressional Actions
III.
The Right of Self-Determination
A.
The Meaning of Self-Determination
1.
International Recognition of the Principle of Self-Determination
2.
Who is Entitled to Self-Determination?
3.
Self-Determination and the Right to
4.
The Process for Exercising the Right of Self-Determination
B.
Nagorno Karabagh's Legal Entitlement to Self-Determination
1.
The Armenians of Nagorno Karabagh are a Group Entitled to Self-
Determination
2.
Nagorno Karabagh's Right to Self-Determination includes the right to
independence
IV.
A Proposed Framework for Nagorno Karabagh's
A.
Phase One: Intermediate Sovereignty
1.
Managing the Interim Arrangement and Preparing for
a.
Establishing Mechanisms for Mutual Cooperation and Interaction
b.
Right to Enter into Relationships with Neighboring States and
Participate in International Organizations
c.
Return and Exchange of Territory
2.
a.
Ensuring the Right of Return for Refugees and Displaced Persons
b.
Creating a Process for Property Restitution and Exchange
c.
Adopting Laws and International Conventions Governing Respect for
Minority Rights
d.
Creating Special Mechanisms to Protect Minority Rights and Free
Expression of Culture
e.
Committing to Non-Violence in Resolving Disputes
3.
Third-Party Oversight and Policing
B.
Phase Two: Earned Recognition
ANNEXES
A.
About the Public International Law & Policy Group
B.
List of Contributing Attorneys
I.
Introduction
The current struggle over Nagorno Karabagh began in February of 1988
when its governing council, encouraged by perestroika and glasnost, requested
to be free from the
administration of
In an effort to make meaningful progress toward final settlement of the
conflict, the OSCE reinforced a Russian mediated cease-fire and has created
the
This memorandum seeks to propose a solution based upon international
law and the recent precedent established in a number of other peace processes,
including
The intermediate sovereignty/earned recognition proposal is designed to
produce a phased resolution of the crisis with clear benchmarks for measuring
compliance by the parties. If
adopted and properly implemented, the proposal should lead to a final
settlement that promotes peaceful relations between
The following sections of the memorandum include a brief description of
the history of the conflict and the efforts of the international community to
resolve the conflict, the articulation of the international legal principles
governing disputes of this nature, and a detailed proposal for a process of
intermediate sovereignty/earned recognition with reference to comparable
precedents.
II.
Background
A.
Brief History of the Conflict
1. Before Sovietization
Nagorno Karabagh is historic Armenian territory which, in different
eras, has formed part of
The Russian Empire, expanding southwards in the Transcaucasus, annexed
Karabagh in 1805. This action was
officially recognized by
In July 1918, the First Armenian Assembly of Nagorno Karabagh declared
the region self-governing and created a National Council and government. The
size of Nagorno Karabagh was then significantly greater than the portion that
subsequently became the Nagorno Karabagh Autonomous Oblast.
In August 1919, the Karabagh National Council entered into a
provisional treaty agreement with the Azerbaijani government. Despite signing
the Agreement, the Azerbaijani government continuously violated the terms of
the treaty. This culminated in
March 1920 with the Azerbaijanis' massacre of Armenians in Karabagh's former
capital, Shushi, in which it is estimated that more than 20,000 Armenians were
killed. In this light, the Ninth
Karabagh Assembly nullified the treaty in whole and pronounced union with
From 1918 to 1920 Nagorno Karabagh possessed all necessary attributes
of statehood, including an army and legitimate authorities.
The
In 1918, 330,000 Armenian people lived within the then-existing borders
of Nagorno Karabagh. They made up
95 percent of its population, with 3 percent Azerbaijanis and 2 percent
others. As a result of the
Turkish-Azerbaijani aggression in 1918-1920 aimed at total cleansing of the
Armenians of Nagorno Karabagh, an estimated 20 percent of all Armenians were
killed.
2. Nagorno Karabagh Under
Soviet Azerbaijani Rule: 1920-1988
The violent conflict in the
On
On
In 1923, Nagorno Karabagh had a population of almost 158,000, 95
percent of which were Armenians.
On
This separation became a subject of continual protest -- from both
Nagorno Karabagh and
3. 1988 to the Present
The current struggle over Nagorno Karabagh began in February of 1988
when the Karabagh Armenians, encouraged by perestroika and glasnost, began to
take steps to break free of Azerbaijani control.
On
The response within
On
On
The USSR Supreme Soviet's resolution of
In 1989, according to the official
On
On
On
On
The actions of the USSR Constitutional Oversight Committee did not,
however, annul the joint decision of the NKAO and Shahumian district to
declare the establishment of the Nagorno Karabagh Republic on September 2,
1991, since that declaration was deemed in compliance with the then existing
law. ( The
On
The reaction from
The Karabagh Armenians organized an army and undertook military
operations which allowed them to seize Azerbaijani-held areas used to launch
attacks on Stepanakert and nearby towns, and to break the Azerbaijani-imposed
blockade of Karabagh by establishing a ground connection to
On
Facing continuing efforts by the Azerbaijani forces aimed at the
destruction of the Karabagh Armenians, Nagorno Karabagh reached out to the
international community. It then
prepared for a limited counteroffensive to secure for its inhabitants some
level of safety. At the same
time, Nagorno Karabagh moved ahead with establishing itself as the first fully
functioning democracy in the region.
On
On
At this time,
Following a negotiated cease-fire,
Nagorno Karabagh has continued to demonstrate to the international
community its ability to maintain and promote highly developed governmental
institutions, political parties, and free local and parliamentary elections.
On
B.
The Peace Process
1. Mediation by the
In late 1991,
2. Actions Taken by the United Nations Security Council
Concerned over the increased fighting in and around Nagorno Karabagh,
the United Nations Security Council adopted four resolutions concerning the
conflict, Resolutions 822, 853, 874, and 884, between April and November 1993.[2]
While each resolution addressed the view of the Security Council
concerning developments in the region, the recital and decretal paragraphs of
the resolutions also contained principals the Security Council desired to see
implemented as part of a peaceful settlement to the conflict.
In addition to expressing concern about the threat to peace and
security in the
The pertinent paragraphs of the resolutions called for a cessation of
all hostilities, the withdrawal of all occupying forces from occupied areas of
The Security Council resolutions highlighted the Council's view that it
was necessary for the parties to the conflict to immediately cease
hostilities, return territory occupied through force of arms, permit delivery
of international humanitarian assistance, and cooperate with the mediation
efforts of the OSCE. Although the
Security Council remains "actively seized of the matter" and the
Secretary-General is requested, in consultation with the Chairman-in-Office of
the OSCE and the chairs of the Minsk Group, to continue to report to the
Security Council concerning the situation in Nagorno Karabagh, the Security
Council has not acted further on the Nagorno Karabagh conflict, opting instead
to permit the OSCE through the Minsk Group to pursue a settlement among the
parties to the conflict.
3. OSCE Mediation Efforts
On 24 March 1992, during the Helsinki Additional Meeting of the CSCE
Council (now, OSCE), it was decided by the ministers that the
Chairman-in-Office should visit the region in order to contribute, in
particular, to the establishment and maintenance of an effective cease-fire,
as well as to the establishment of a framework for an overall peace
settlement. The ministers also
determined that it was necessary for the Chairman-in-Office to convene a peace
conference in
Mediation efforts by the
(1) make recommendations for the Chairman-in-Office on developing a
plan for the establishment, force structure requirements and operations of a
multinational OSCE peacekeeping force for Nagorno Karabagh; and
(2) make recommendations on,
inter alia, the size and characteristics of the force, command and
control, logistics, allocations of units and resources, rules of engagement
and arrangements with contributing States.
In August 1995, the Chairman-in-Office of the OSCE appointed a
"Personal Representative of the Chairman-in-Office on the Conflict Dealt with
by the OSCE Minsk Conference."
The Personal Representative is based in
During the OSCE's 1996 Lisbon Summit, representatives of
(1) the territorial integrity of the
(2) legal status of Nagorno
Karabagh defined in an agreement based on self-determination which confers on
Nagorno Karabagh the highest degree of self-rule within Azerbaijan; and
(3) guaranteed security for Nagorno
Karabagh and its whole population, including mutual obligations to ensure
compliance by all the parties with the provisions of the settlement.
The consequence of this non-binding statement was in effect to halt
progress on a long term resolution of the conflict, as subsequent to the
statement
In 1997,
In November 1998, the Minsk
Group prepared a proposal for agreement for the comprehensive settlement of
the conflict in Nagorno Karabagh.
Although the contents of the report are confidential, public reports indicate
that the proposal addresses the main issues concerning the status of Nagorno
Karabagh, a cessation of armed conflict, and guarantees concerning compliance
with the agreement. Nagorno
Karabagh and
In December 1999, the co-chairmen of the Minsk Group visited
C.
Identification of Strategic Interests
1.
Concerning that conflict, however,
Due to the military and economic importance of the region,
To reach its economic and military goals,
2.
The
With regard to the conflicting parties, the
The principal interest of the
3.
As an immediate neighboring state of
The attitude of
4.
Although Azerbaijanis share the same religion with the Iranians, it
seems that
5. Western oil companies
A consortium led by BP/Amoco has invested heavily in the Azerbaijani
oil fields as an alternative to the
D.
Throughout the crisis, the US Congress has been actively engaged in
trying to promote a resolution of the conflict.
Notably, these efforts evidence the necessary political will for the
The US Congress has focused its attention on Nagorno Karabagh to date
primarily through foreign operations appropriations legislation.
Within this context, the two main areas of consideration have been:
(1) the allocation of funding in order to promote resolution of the
conflict over Nagorno Karabagh -- and incentivize the parties to the conflict
to reach such a resolution, as well as the provision of humanitarian
assistance to the people of Nagorno Karabagh; and
(2) the viability of restrictions on direct aid to
In this regard, Nagorno Karabagh
has been fortunate to be able to count on the support of vocal members of
Congress, while other members have challenged, and continue to challenge, the
appropriateness of legislative restrictions on direct financial assistance to
With respect to the allocation of funds, the Foreign Operations
Appropriations Act for fiscal year 2000 provides for $839 million for
assistance to the Independent States of the former
The Foreign Operations Appropriations Act for fiscal year 1999
allocated $801 million for assistance to the New Independent States of the
former
The House version of the bill also provided clear policy guidance
through its suggestion, within the text of that bill, that the earmarked $39.9
million should be made available for humanitarian assistance for refugees,
displaced persons, and needy civilians affected by the conflicts in the
The Foreign Operations Appropriations Act for fiscal year 1998 made
$770 million available for assistance for the New Independent States of the
former Soviet Union, not less than $250 million of which was to be made
available for assistance for the Southern Caucasus region.
Twenty-eight percent of that, or $70 million, was to be used "for
reconstruction and remedial activities relating to the consequences of
conflicts within [the
The Conference Report on the fiscal year 1998 legislation sets forth
the legislative intent in the clearest possible terms:
The managers seek to make the
maximum use of American assistance as an incentive for the regional parties to
cooperate with the Minsk Group and other international mediators seeking to
bring peace to the
The Foreign Operations Appropriations Act for fiscal year 1997 provided
for $625 million to be made available for assistance for the New Independent
States of the former
In addition to allocating funds for the Southern Caucasus region, the
appropriations legislation for each of these years also carves out exceptions
to the restrictions on aid to Azerbaijan contained in Section 907 of the
Freedom for Russia and Emerging Eurasian Democracies and Open Markets Support
Act of 1992 (also known as the Freedom Support Act).
Section 907 of the Freedom Support Act provides that, except for
assistance in connection with nonproliferation and disarmament programs and
activities, "United States assistance under [the Freedom Support Act] or any
other Act may not be provided to the Government of Azerbaijan until the
President determines, and so reports to the Congress, that the Government of
Azerbaijan is taking demonstrable steps to cease all blockades and other
offensive uses of force against Armenia and Nagorno Karabagh."[16]
Senator Kerry, as a cosponsor of a modified version of this provision
first offered in the Senate Foreign Relations Committee, clarified during
debate on the Conference Report for the Freedom Support Act that he believed
that "demonstrable steps" should not mean words, but rather actions that
"reflect a sustained commitment on the part of the Azerbaijani Government to
end the violence in Nagorno Karabagh and to lift permanently the blockades
against Armenia and Nagorno Karabagh."[17]
Senator Kerry also emphasized that the conferees' refusal to remove or
weaken the language of Section 907 as approved by both the House and Senate,
despite the Administration's urging that the language be dropped, stood "as a
strong expression of congressional intent."[18]
Notwithstanding the clear-cut directive of Section 907 of the Freedom
Support Act, subsequent appropriations legislation, beginning with fiscal year
1996, did weaken the impact of Section 907.[19]
The Foreign Operations Appropriations Act for fiscal year 1997, on the
other hand, actually contains language that mirrors Section 907 of the Freedom
Support Act, while the Conference Report contains the conferees' directive
that assistance to
The Foreign Operations Appropriations Act for fiscal year 1998
explicitly incorporates exceptions to Section 907 of the Freedom Support Act
directly in the text of the legislation.
These carve-outs remove the Section 907 limitations on assistance to
Azerbaijan with respect to (1) humanitarian assistance for refugees, displaced
persons and needy civilians affected by the regional conflict; (2) activities
to support democracy or assistance in connection with nonproliferation and
disarmament programs and activities (the latter of which had already been
taken into account in Section 907); (3) any assistance provided by the Trade
and Development Agency; and (4) any activity carried out by a member of the US
and Foreign Commercial Service while acting within his or her official
capacity.[21]
The Conference Report for the fiscal year 1998 legislation
characterizes the third and fourth carve-outs as "limited support for
These exceptions to Section 907 of the Freedom Support Act were further
expanded in the Foreign Operations Appropriations Act for fiscal year 1999 to
include, in addition to the carve-outs contained in the fiscal year 1998
legislation listed above, carve-outs for (1) insurance, reinsurance,
guarantees and other assistance provided by the Overseas Private Investment
Corporation (OPIC); and (2) any financing provided under the Export-Import
Bank Act of 1945.[23]
While the exceptions to Section 907 contained in the Foreign Operations
Appropriations Act for fiscal year 2000 are identical to those contained in
the legislation for fiscal year 1999, the continued existence of Section 907
altogether was threatened in 1999 in connection with the passage of the Silk
Road Strategy Act of 1999. The
Silk Road Strategy Act, which was incorporated into the Omnibus Appropriations
Act for fiscal year 2000, Pub. L. 106-113 (1999), was first introduced as a
stand-alone bill in an effort to target assistance to support the economic and
political independence of the countries of the
In opposing the proposed emasculation of Section 907, Senator McConnell
expressed his belief that Section 907 -- "even though it has been constantly
stripped down -- is important to give the Azerbaijanis some incentive for
ultimate settlement" of the conflict over Nagorno Karabagh.
Senator Sarbanes elaborated that waiving Section 907 "in the absence of
any progress toward a lifting of the blockade would reward the Government of
Azerbaijan for its intransigence and remove a major incentive for good-faith
negotiations from one side of the conflict," especially in light of
Azerbaijan's rejection at that time of the Minsk Group's common state
proposal. Senator Sarbanes also
disputed the assertion that
In the end, the Silk Road Strategy Act was passed, after an amendment
was adopted that removed the waiver authorization language with respect to
Section 907 of the Freedom Support Act.
Thus, Section 907 currently remains in place, as qualified by the
carve-outs contained in the appropriations legislation for fiscal year 2000
discussed above.
III. The Right of
Self-Determination
Possessing the right of self-determination is a legal question, while
accomplishing self-determination is a question of power and diplomacy.
This section examines the former, while Section IV presents a formula
for attaining the latter.
A. The Meaning of
Self-Determination
1. International
Recognition of the Principle of Self-Determination.
The principle of self-determination is included in Articles 1, 55, and
73 of the United Nations Charter.
The right to self-determination has also been repeatedly recognized in a
series of resolutions adopted by the U.N. General Assembly, the most important
of which is Resolution 2625(XXV) of 1970.
While these resolutions are not in themselves binding, they do
constitute an authoritative interpretation of the U.N. Charter.[27]
In the
The principle of self-determination was further codified in the
International Covenant on Civil and Political Rights, and the International
Covenant on Economic, Social and Cultural Rights -- which are considered to
constitute the international "Bill of Rights."[31]
Before its break up, the
Under the principle of self determination, all self-identified groups
with a coherent identity and connection to a defined territory are entitled to
collectively determine their political destiny in a democratic fashion and to
be free from systematic persecution.
For such groups, the principle of self-determination may be implemented
by a variety of means, including autonomy within a federal entity, a
confederation of states, free association, or, in certain circumstances,
outright independence.[33]
Moreover, in accordance with the Charter on European Security accepted
by the OSCE in Istanbul in November 1999, it is now widely held that conflict
concerning ethnic minorities can only be positively resolved within democratic
entities, and that in instances where states are undemocratic the principle of
self-determination takes greater priority over the principle of territorial
integrity.
2. Who is Entitled to
Self-Determination?
For a group to be entitled to a right to collectively determine its
political destiny, it must possess a focus of identity sufficient for it to
attain distinctiveness as a people.[34]
The traditional two part test examines first "objective" elements of
the group to ascertain the extent to which its members share a common racial
background, ethnicity, language, religion, history and cultural heritage.
Another important "objective" factor is the territorial integrity of
the area which the group is claiming.[35]
The second "subjective prong" of the test requires an examination of
the extent to which individuals within the group self-consciously perceive
themselves collectively as a distinct "people."
It necessitates that a community explicitly express a shared sense of
values and a common goal for its future.
Another "subjective" factor is the degree to which the group can form a
viable political entity.[36]
3. Self-Determination and
the Right to
Traditionally, the right to pursue independence as an exercise of the
principle of self-determination was applied to people under "colonial" or
"alien" domination, and under the principle known as
uti possidetis states were
permitted to become independent only within their former colonial boundaries.[37]
However, the modern trend, supported by the writing of numerous
scholars,[38]
U.N. General Assembly resolutions,[39]
declarations of international conferences,[40]
judicial pronouncements,[41]
decisions of international arbitral tribunals,[42]
and state practice since the fall of communism in Eastern Europe, has
supported the right of a non-colonial "people" to secede from an existing
state when the group is collectively denied civil and political rights.
The denial of the exercise of the right of democratic self-government
as a precondition to the right of a non-colonial people to dissociate from an
existing state is supported most strongly by the United Nations' 1970
Declaration on Principles of International Law Concerning Friendly Relations,
which frames the proper balance between self-determination and territorial
integrity as follows:
Nothing in the foregoing paragraphs shall be construed as authorizing
or encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent
States conducting themselves in
compliance with the principle of equal rights and self-determination of
peoples as described above and thus possessed of a government representing
the whole people belonging to the territory without distinction as to race,
creed or color.[43]
By this Declaration, the General
Assembly indicated that the right of territorial integrity takes precedence
over the right to self-determination only so long as the state possesses "a
government representing the whole people belonging to the territory without
distinction as to race, creed or color."[44]
Where such a representative government is not present, "peoples" within
existing states will be entitled to exercise their right to self-determination
through secession.
Most recently, in considering whether
A right to secession only arises under the principle of
self-determination of peoples at international law where "a people" is
governed as part of a colonial empire; where "a people" is subject to alien
subjugation domination or exploitation; and possibly
where "a people" is denied any
meaningful exercise of its right to self determination within the state of
which it forms a part."[45]
The Court then went on to declare:
A state whose government represents the whole of the people or peoples
resident within its territory, on a basis of equality and without
discrimination, and respects the principles of self-determination in its
internal arrangements, is entitled to maintain its territorial integrity under
international law and to have the territorial integrity recognized by other
states.[46]
As the Court found that the people
of
In the case of the dissolution of the former Yugoslavia, the republics
of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia were deemed entitled to
secede on the basis that they had been denied the proper exercise of their
right of democratic self-government, they possessed clearly defined borders
within the umbrella state, and in some cases they had been subject to ethnic
aggression and crimes against humanity committed by the forces of the central
government.[47]
Notably, the international community did not consider that the Bosnian
Serb entity known as Republika Srpska was entitled to dissociate from
Bosnia-Herzegovina because, although it possessed a right of political
autonomy, it had not been denied the proper exercise of its political rights
and it did not possess historically defined borders.
In contrast, in the case of the Serb autonomous region of Kosova, in
the face of ethnic cleansing and repression by the central government of
These examples indicate that if a government is at the high end of the
scale of representative government, the only modes of self-determination that
will be given international credence are those with minimal destabilizing
effect, such as internal autonomy. If
a government is extremely unrepresentative, then much more potentially
destabilizing modes of self-determination, including secession, may be
recognized as legitimate.[48]
The case for secession becomes even stronger when the claimant group
has attained de facto independence.
In one of the first cases involving the right of self-determination,
the Commission of Jurists on the
From the point of view of both domestic and international law, the
formation, transformation and dismemberment of States as a result of
revolutions and wars create situations of fact which, to a large extent,
cannot be met by the application of the normal rules of positive law .... This
transition from a de facto situation to a normal situation de jure cannot be
considered as one confined entirely within the domestic jurisdiction of a
State. It tends to lead to
readjustments between the members of the international community and to
alterations in their territorial and legal status.[49]
Thus, if pursuant to the situation
on the ground, the entity satisfies the criteria for independent statehood,
the conflict between the principles of self-determination and territorial
integrity evaporates. The
applicable criteria for statehood are: (1) a permanent population; (2) a
defined territory; (3) a government; and (4) capacity to enter into relations
with other states.[50]
Finally, some commentators have taken the position that the right of a
people to secede must further be based on a "balancing of conflicting
principles," considering such factors as "the nature of the group, its
situation within its governing state, its prospects for an independent
existence, and the effect of its separation on the remaining population and
the world community in general."[51]
4. The Process for
Exercising the Right of Self-Determination
In acknowledging the independence of
B.
Nagorno Karabagh's Legal Entitlement to
Nagorno Karabagh has a right of self-determination, including the
attendant right to independence, according to the criteria recognized under
international law set forth above.
1. The Armenians of
Nagorno Karabagh are a Group Entitled to Self-Determination
The Armenians of Nagorno Karabagh possess the objective and subjective
factors required of a group entitled to the right to self-determination.[52]
The Armenians of Nagorno Karabagh are objectively distinct from the
Azerbaijanis. The Nagorno
Karabagh Armenians speak a dialect of Armenian, an Indo-European language,
while the Azerbaijanis speak a Turkic dialect, which is part of the Altaic
language group. The Nagorno
Karabagh Armenians are Christians, while the Azerbaijanis are predominantly
Shi'i Muslims. And the Nagorno
Karabagh Armenians share the ancient culture and historical experience of the
Armenian people, while the Azerbaijanis are now developing a national identity
and share the historical experience of Turkic peoples.
Nagorno Karabagh also has a long tradition of being a distinct
territorial unit. The region of
Nagorno Karabagh (Artsakh) was organized as one of the fifteen provinces of
historical
With respect to the subjective prong of the test, the Armenian
population of Nagorno Karabagh responded to the decision of
2. Nagorno Karabagh's
Right to Self-Determination Includes the Right to
The Azerbaijanis argue that political independence for Nagorno Karabagh
violates the right of
Prior to 1988,
Subsequent to the Karabagh movement for independence in 1988, the human
rights violations against the Armenians of Nagorno Karabagh intensified,
including "pogroms, deportations, and other atrocities."[55]
That Nagorno Karabagh has had to resort to force to protect itself, to
break the Azerbaijani blockade by opening the Lachin Corridor to
Nagorno Karabagh now meets all of the traditional requirements for
statehood set forth by the Montevideo Convention.[58]
It has control over a defined territory, which encompasses over 5,000
sq. kilometers. Its permanent
population of 150,000, is greater than that of other States that have been
admitted into the United Nations since 1990, including
Finally, Nagorno Karabagh's right to independence is also consistent
with the balancing-of-factors approach advocated by some commentators.[61]
That the vast majority of the people in Nagorno Karabagh constitute a
unique group, with its own government and defense forces and a historic tie to
the territory, has been discussed above.
That the group has achieved de facto independence after an overwhelming
vote for secession and after withstanding a military assault indicates its
prospects for an independent existence.
As a result of the armed conflict, the current population of Nagorno
Karabagh is approximately 95% Armenian, with the other five percent of the
population being made up of Russian, Greek, Azerbaijani and Tatar minorities.
The government of Nagorno Karabagh is ensuring minority rights and
continued political participation of these ethnic minorities and others who
may wish to return. The
government of Nagorno Karabagh has expressed its willingness to establish
bilateral contacts with the government of
As for its effect on
Thus, international law provides a firm basis for Nagorno Karabagh's
pursuit of independence from
IV. A Proposed Framework for
Nagorno Karabagh’s Self Determination Based on Existing International Models
The realization of Nagorno Karabagh’s right to self-determination may
be achieved through peaceful and constructive means within the OSCE peace
process. In this regard, it is
relevant and instructive to consider the implementation of, as well as
proposals for achieving, self-determination in other regional contexts which
may be used as a model for the next steps in the OSCE process. Critical in
light of these precedents is the need for a detailed phased process for
achieving self-determination, which the concerned parties can commit to in
advance. This section thus draws
on existing precedent to develop an approach of intermediate
sovereignty/earned recognition as a basis for crafting a long term resolution
of the Nagorno Karabagh dispute.
As noted in the introduction, the
intermediate sovereignty/earned recognition approach consists of two phases,
the first phase - intermediate sovereignty - would encompass a period of
three to five years, and would have three primary elements.
The first element would entail both the provision of a level of
sovereignty for Nagorno Karabagh consistent with its right to
self-determination, and the creation of mechanisms for joint co-operation
between the government of Nagorno Karabagh and the government of
The second phase - earned recognition - would occur at the end of the interim
phase and would entail a determination by an international mechanism as to the
best means by which Nagorno Karabagh could be recognised as an independent
state. The determination of the
international mechanism would be based upon Nagorno Karabagh's compliance with
the commitments undertaken during the interim period - taking into
consideration
To help define the specifics of the proposal for intermediate
sovereignty/earned recognition, this section draws upon peace agreements and
peace proposals sponsored or adopted by the international community which were
designed to resolve disputes involving both claims of self-determination and
the occurrence or threat of armed conflict.
These proposals and agreements include:
The 1999 Montenegro Proposal
put forward by the
The 1999
Agreement on the Question of East
Timor between the
The 1999
Rambouillet/Paris Accords, which
were negotiated under the auspices of the Contact Group (
The 1998 Good Friday Agreement
between Northern Ireland, the United Kingdom of Great Britain and Northern
Ireland and the Republic of Ireland,
was reached through multi-party negotiations.
A corollary document to the Good Friday Agreement is the Agreement
between the Government of the United Kingdom of Great Britain and the
Government of Ireland, also dated
The 1995
Dayton Accords, which
the
The
The 1992
Set of Ideas on an Overall Framework
Agreement on Cyprus, compiled
by then United Nations Secretary-General Boutros Boutros-Ghali and endorsed by
a UN Security Council Resolution, was to be the basis for settlement of
the conflict between the Greek Cypriot and Turkish Cypriot communities
of
The Compact of Free Association Act
of 1985,[62]
which was signed into
law in 1986, is the agreement between the
A.
Phase One: Intermediate Sovereignty
1. Managing the Interim
Arrangement and Preparing for
To manage the relationship between Nagorno Karabagh and
a.
Establishing Mechanisms for
Mutual Cooperation and Interaction
Taking the current cease-fire situation of non-violent co-existence
between Azerbaijan and Nagorno Karabagh, under which each entity exercises
control over its own internal affairs, as the starting point, the first step
toward achieving a peaceful resolution of the ongoing conflict should be the
establishment of a cooperative interim arrangement in which the parties can
interact with each other through high-level joint committees or other
consultative arrangements on matters of common concern.
This type of interim structure is especially appropriate in the case of
Nagorno Karabagh and
Examples of this kind of
joint-committee arrangement can be found in the Israeli/Palestinian peace
process, the case of Northern Ireland, the proposed framework for autonomy for
East Timor, the proposed framework agreement for resolving the conflict in
Cyprus and the Dayton Accords.
Under the Oslo Agreement,
A central theme in the Good Friday
Agreement is the concept of joint consultation and coordination among the
interested governmental entities of
With respect to the status of
While the Cyprus Overall Framework Agreement contemplates the creation
of integrated governmental functions between the Greek Cypriot and Turkish
Cypriot communities, it also provides for bi-communal committees during the
transition period after the Overall Framework Agreement is approved to deal
with property settlement claims, economic development and safeguards and
arrangements related to the territorial adjustments made under the Overall
Framework Agreement.[67]
The Overall Framework Agreement also provides for the establishment of
a committee composed of the leaders of the two communities and a
representative of the Secretary-General of the United Nations to work out the
transitional arrangement procedures and to ensure that the other bi-communal
committees are implemented in an effective and timely manner.
Although the Dayton Accords also provide for a more integrated
governmental arrangement between the constituent entities that comprise
With these precedents in mind,
Nagorno Karabagh should establish Joint Committees providing for cooperation
between the highest political levels of Nagorno Karabagh and
b.
Right to Enter into
Relationships with Neighboring States and Participate in International
Organizations
At the same time that the mechanisms for cooperation are implemented,
each entity participating in the interim arrangement must be accorded the
right to initiate and maintain relationships with neighboring states and
conduct its own foreign relations in some capacity.
In different degrees and formulations, this element has repeatedly been
recognized and articulated in other regional contexts.
The Bosnian Constitution, for
instance, permits each entity to (1) establish “special parallel relationships
with neighboring states consistent with the sovereignty and territorial
integrity of
Moreover, the Rambouillet/Paris Accords provide that Serbians present
in Kosova would be entitled to make use of social and educational services
provided by the
The
In 1998 the PLO became entitled to have its communications issued and
circulated as official documents of the UN, and via resolution 52/250 the UN
conferred upon the PLO, which carries the name "Palestine" in the United
Nations, additional rights and privileges of participation that had previously
been exclusive to Member States, such as the right to participate in the
general debate held at the start of each session of the General Assembly, the
right to cosponsor resolutions, and the right to raise points of order on
Palestinian and Middle East issues.
Furthermore, resolution 52/250 also changed the seating of the PLO to a
location directly after non-Member States with the allocation of six seats for
delegates, while observers get two seats.
In 1998, PLO leader Yasir Arafat addressed the 53rd General Assembly
plenary under the agenda item of General Debate, which was the first time in
the history of the United Nations that a non-member state participated under
that item of business. During
that session, the PLO co-sponsored 21 resolutions and one decision.
The PLO has thus remained a non-state member of the UN under the rubric
of a "proto-state."
Under the Overall Framework
Agreement on
The proposal of the
The Compact of Free Association Act
of 1985,[72]
affirms the capacity of the Federated States of Micronesia and the Marshall
Islands to conduct foreign affairs in their own name and right, including the
capacity to enter into treaties and other international agreements with
governments and international organizations, except with respect to security
and defense matters, which the United States is responsible for.
To prepare Nagorno Karabagh for the
full exercise of its right of self-determination and the possibility of
internationally recognized independence, and to promote economic and political
development in the region, Nagorno Karabagh should be entitled to enter into
special relationships with neighboring states on matters relating to trade,
economic development, education and culture.
Nagorno Karabagh should also be entitled to acquire membership in
relevant international organizations, and to establish trade and "special
interest" missions in foreign countries.
c.
Return and Exchange of Territory
In certain circumstances, states have exchanged occupied territories in
order to promote the development of peaceful relations.
In the case of the Nagorno Karabagh conflict,
The Wye accords focus on the commitments of
2.
In order for the interim process to effectively create an environment
in which the right of self-determination can be meaningfully exercised, it is
crucial that each party be required to commit to taking specific steps to
build mutual confidence. The
steps should be ones capable of producing tangible results during and at the
end of the interim period.
Particularly relevant to the situation in Nagorno Karabagh are commitments to
(a) encourage the return of refugees and displaced persons, (b) create a
process for property restitution and exchange; (c) implement laws governing
respect for minority rights within each entity’s territory and to adopt
international conventions; (d) create special mechanisms to protect minority
rights and free expression of cultural identity; and (e) respect the
continuing cease-fire and refrain from resorting to violence to resolve
disputes that may arise.
a.
Ensuring
The Right of Return for Refugees and
Displaced Persons
The Rambouillet/Paris Accords
provide that the parties were obligated to permit the return of refugees and
internally displaced persons, cooperate with United Nations High Commissioner
for Refugees in an effort to promote the return of refugees and displaced
persons, permit the UNHCR and other organizations to monitor the treatment of
persons following their return and permit international organizations to
provide assistance to returnees.
Similarly, the Dayton Accords provide a comprehensive framework for
implementing the peace settlement, which includes commitments by the parties
to permit refugees to return to their homes and have their property returned
to them.[74]
The Overall Framework Agreement on
As noted in the review of facts,
there are over 600,000 refugees and internally displaced persons in Nagorno
Karabagh and
b.
Creating a Process for Property
Restitution and Exchange
The Rambouillet/Paris Accords provided that the parties were obligated
to permit all persons to reoccupy their real property, assert their occupancy
rights in state-owned property and recover their other property and personal
possessions. The Accords did not
provide for a mechanism of compensation for destroyed or abandoned personal or
real property. The Dayton Peace
Accords provided for the creation of a Property Restitution Commission which
certifies title to property and has recently begun to assist in property
exchange.
Under the Overall Framework
Agreement on
In Nagorno Karabagh and
c.
Adopting Laws and International Conventions Governing Respect for
Minority Rights
The Rambouillet/Paris Accords
provided that the rights and freedoms set forth in the European Convention for
the Protection of Human Rights and Fundamental Freedoms and its Protocols
would apply directly in Kosovo.
Minority populations were also entitled to a number of specifically delineated
rights which related to (1) preserving and protecting their national,
cultural, religious, and linguistic identities; (2) access to, and
representation in, public broadcast media; and (3) the ability to finance
their activities by collecting contributions from members of their community.
The Dayton Accords incorporated the European Convention and a number of
other important international human rights treaties into Bosnian domestic law.
In
Under the proposed East Timor
Framework, both the Indonesian Central Government and the SARET would be
obligated to protect and promote fundamental rights and freedoms.
The Framework covers a broad range of freedoms, with United Nations
Conventions as the reference point.[78]
With the return of refugees to
Nagorno Karabagh and
d.
Creating Special Mechanisms to Protect Minority Rights and Free
Expression of Culture
The Rambouillet/Paris Accords
provided for a number of mechanisms governing the protection of minority
rights, including the right to free and active participation in all forms of
government and the creation of an ombudsman, who would monitor the protection
of human and minority rights.
Similarly, the Dayton Accords provided for undertakings by the parties to
guarantee the protection of human rights and the establishment of an
independent ombudsman and a human rights commission with joint representation
of the parties to address alleged breaches of human rights protections.[79]
In Northern Ireland, the parties
must commit to (1) the establishment of a Civic Forum that would bring
together representatives from business, trade union and voluntary sectors to
address concerns on social, economic and cultural issues; (2) passage of
legislation regarding linguistic diversity; and (3) promotion of the rights
set forth in the Good Friday Agreement relating to civil rights, economic
rights and religious freedoms.
To ensure the adequate
implementation of minority and human rights protections in Nagorno Karabagh
and Azerbaijan, a series of ombudsman positions should be created with
competence to address allegations of the infringement of minority and human
rights and to comment upon the adoption, implementation and enforcement of
legislation and any other state activity which may impact the exercise of
minority or human rights.
e.
Committing to Non-Violence in Resolving Disputes
The initial step in implementing
the peace settlement under the Dayton Accords involves the mutual renunciation
of the use or threat of force to settle disputes.
The most salient elements of this commitment to non-violence, each of
which is detailed in a separate annex to the General Framework for Peace
Agreement, are: (1) the cease fire, disengagement of forces, withdrawal of
foreign forces, and exchange of prisoners;[80]
(2) undertakings to implement confidence-building measures and reduce military
forces to attain a stable regional balance at a lower level of arms;[81]
(3) agreement on boundaries and borders, with international arbitration agreed
as the means to settle any outstanding territorial disputes;[82]
and (4) establishment of an international police task force under the auspices
of the United Nations to assist and monitor law enforcement activities.[83]
The Overall Framework Agreement on
Key to the successful
implementation of the self-governing process in
Although the cease-fire between
Nagorno Karabagh and
3.
Third-Party Oversight and Policing
Also crucial for ensuring a smooth and efficient transition to
achieving self-determination, and monitoring the parties’ fulfillment of their
commitments to promote peace and normalize relations with each other, is the
provision for a third-party and/or international presence to oversee the
implementation of the parties’ agreement.
The Dayton Accords contain
extensive provisions for the participation of international organizations in
the implementation of the peace settlement.
In the military arena, the “Implementation Force” (“IFOR”), since
renamed the “Stabilization Force” (“SFOR”), consists of NATO and non-NATO
forces that are to assist in implementing the terms of the agreements
regarding territory, size and disposition of forces and in establishment of a
durable peace.[85]
The OSCE is tasked with the supervision (a consciously more active role
than monitoring) of the election program for
The Rambouillet/Paris Accords provide for the presence of an
international military force under the direction of NATO and for the
deployment of a United Nations organized Police Task Force similar to that
deployed in
Under the Overall Framework
Agreement on Cyprus, an interim monitoring committee, composed of the two
Cypriot communities, the guaranteeing powers, and the United Nations
Peace-keeping Force in Cyprus, would be responsible for overseeing the process
of demilitarization in Cyprus and, in particular, the achievement of
agreed-upon reductions of arms and troop withdrawals.[89]
A supervision and verification committee, composed of the guarantor
powers, as well as the federal Cypriot president and vice president, would
also be established with the assistance of United Nations support personnel.
This committee would investigate any threat to the security of either
community or of the federal republic through on-site inspections or other
means.[90]
The United Nations Development Programme would provide assistance to
the bi-communal committee on economic development and safeguards.
The Overall Framework Agreement also expressly provides for the United
Nation’s commitment to assist each community in fulfilling its functions and
permits each side to employ foreign experts to do so.
Consistent with these precedents and the existing practice of involving
international monitors in the verification of the cease-fire, it would be
useful for Nagorno Karabagh to consent to the limited deployment of military
and human rights observers to validate Nagorno Karabagh's compliance with the
commitments undertaken during the period of intermediate sovereignty.
B.
Phase Two: Earned Recognition
Central to the exercise of the
right of self-determination is determining what the party’s ultimate status
will be and how that status will be determined.
Under the Rambouillet/Paris
Accords, an international meeting would be convened three years after the
entry into force of the agreement.
This meeting would determine a mechanism for a final settlement for
Kosovo on the basis of the will of the people,[91]
opinions of relevant authorities, each party’s efforts regarding the
implementation of the Agreement, and the Helsinki Final Act.
A comprehensive assessment of the implementation of the Agreement would
take place at the meeting, as well as the consideration of proposals by any
party for additional measures to be taken.
The
Providing more certainty than these
precedents for deferred negotiation of permanent status is the process for a
referendum in which the constituent people have the opportunity on their own
initiative and/or after a pre-established period of time to express their wish
concerning their status through a free and democratic process.
The efficiency and reliability of the referendum will depend upon the
pre-determined agreement regarding the timing, conditions and requirements for
the referendum.
For example, the “Agreement
Regarding the Modalities for the Popular Consultation of the East Timorese
Through a Direct Ballot” established a fixed date for a referendum, which was
approximately three months from the date of the agreement between
The Indonesian Central Government
had the primary responsibility for security in the period leading up to the
referendum, with the presence of international civilian police and United
Nations election monitors and personnel.[94]
The text of the ballot question was explicitly specified in advance and
set forth in the Consultation Agreement.[95]
Instructive in the case of East Timor, with the violence and chaos that
both preceded and followed the referendum, is the importance of effective
mechanisms for maintaining peace during the referendum process and the
preparation of a framework for independence ready to be implemented in the
event independence is chosen, both of which were lacking in East Timor.
Under the Good Friday Agreement, a referendum was held, upon the order
of the Secretary of State, in which the people of
With respect to the freely associated states of FSM and the
Given Nagorno Karabagh's similarity to many of these precedents and the
need for a final determination as to the exact nature of Nagorno Karabagh's
status as a state, the international community should develop an international
mechanism, such as an international mediation panel, coupled with a commission
of inquiry, to determine at the end of the three to five year interim period
the manner in which Nagorno Karabagh will be recognized and the extent of any
further commitments which may be necessary to ensure peace and security.
The international mechanism should also base its determination upon the
results of a referendum of all citizens of Nagorno Karabagh as identified in
the 1989 census and their children, which
Nagorno Karabagh and
V. Recommendations
To promote a permanent resolution of the Nagorno Karabagh conflict, the
OSCE and other interested international parities should facilitate a process
of intermediate sovereignty and earned recognition for Nagorno Karabagh.
This process would entail a two phase approach.
For the first three to five years of the process, Nagorno Karabagh
would be entitled to exercise an intermediate level of sovereignty.
During this period both Nagorno Karabagh and
To manage the period of
intermediate sovereignty, the parties should undertake:
The establishment of mechanisms for
mutual cooperation and interaction such as Joint Committees providing for
cooperation between the highest political levels of Nagorno Karabagh and
Azerbaijan, and between technical agencies concerning rail, Postal Telegraph
and Telephone, commerce, and culture.
These mechanisms should also include Joint Commissions on refugee
return, property restitution and compensation, border demarcation and economic
cooperation, and would include the participation of an OSCE
observer/facilitator. A Joint
Military Commission, with international participation, should be created to
plan the demilitarization of any territories to be exchanged;
The creation of special
relationships with neighboring states on matters relating to trade, economic
development, education and culture, as well as the acquisition of membership
in relevant international organizations and the establishment of "special
interest" missions in foreign countries; and
The exchange of territory, taking
into account security considerations, designed to promote viability and the
development of peaceful relations while also removing a contentious issue from
the future relations between Nagorno Karabagh and
To promote mutual confidence the
parties should undertake:
The public commitment to ensure the
right of return for refugees and displaced persons and create conditions
conducive to their return;
The creation of
property return and restitution commissions, that would be responsible
for certifying ownership to property, securing the right of return to that
property, or, alternatively, arranging for exchange of the property or
financial compensation. In
addition, it is advisable for the parties to create a commission to assess war
damages;
The adoption and enforcement of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms and its Protocols.
This should be accompanied by a mechanism to assist minorities to effectively
utilize the Council of Europe process for enforcing the European Convention.
Relevant United Nations Conventions should also be given full force and
effect in both Nagorno Karabagh and
The creation of a series of
ombudsman positions with competence to address allegations of the infringement
of minority and human rights and to comment upon the adoption, implementation
and enforcement of legislation and any other state activity that may impact
the exercise of minority or human rights;
A recommitment to non-violence and
the peaceful settlement of the dispute, and the permissible deployment of a
small international police task force in areas of refugee and displaced
persons returns and with continued joint monitoring of the demilitarized area.
To establish effective third-party
oversight and policing the parties should agree to:
The limited deployment of military
and human rights observers to validate the parties' compliance with the
commitments undertaken during the period of intermediate sovereignty.
After the expiry of the interim period, an international mechanism
should determine whether Nagorno Karabagh has earned international recognition
based upon its performance during the interim period of de facto independence
with respect to the obligations concerning refugees and the protection of
minorities. The interest of the
people of Nagorno Karabagh in independence should be reconfirmed by a
referendum.
Annex A
The Public International Law & Policy Group
Founded in 1996, the Public International Law & Policy Group is a
non-profit organization primarily composed of public international lawyers and
foreign relations professionals committed to promoting the rule of law in
international relations. A number
of the Group's members have previously practiced as legal advisors with
various Ministries of Foreign Affairs.
The Group provides public international legal aid on a pro bono basis
to states in transition, newly independent states, and developing states at
various levels of government, as well as to governmental delegations to
international organizations. On
occasion, the Group also provides legal assistance to non-governmental
organizations.
Annex B
Contributing Attorneys
Nancy E. Furman
is an associate in the
Maura E. Griffin
is an associate in the
Christopher Goebel
is an associate with Curtis, Mallet-Prevost, Colt & Mosle specializing in
international finance, including capital markets and infrastructure projects
in developing countries. He has
also advised a number for foreign governments on matters of public
international law, including
Bruce Janigian,
A.B., J.D., LL.M., heads the international and government law practices of the
Weintraub Genshlea & Sproul Law Corporation.
He is the United States Legate of the
B.A. from the
Andrew J. Lorentz
is an associate in the
Robert H. Lantz
recently accepted a position as commercial counsel at COMSAT Corporation where
he will serve as counsel to COMSAT's operating subsidiaries in
Michael P. Scharf
is Professor of Law and Director of the Center for International Law and
Policy at the New England School of Law, and is currently Visiting Professor
of International law at the Fletcher School of Law and Diplomacy.
Previously he served as Attorney-Advisor for United Nations Affairs at
the US Department of State, and as a member of the US Delegation to the U.N.
Commission on Human Rights and to the Sixth (Legal) Committee of the U.N.
General Assembly. Prof. Scharf
has published a number of texts relating to advanced issues of public
international law, state succession and self-determination.
He holds a J.D. and B.A. from
Paul R. Williams
teaches international law and international relations at the
Endnotes
[1] See Law of the USSR Concerning the
Procedure of Secession of a Soviet Republic from the Union of Soviet
Socialistic Republics, Register of the Congress of the Peoples Deputies of
USSR and Supreme Soviet of USSR, issue NO. 13, at 252 (
[2]The
four U.N. Security Council resolutions are:
1)
Resolution 822 (1993), Adopted by the Security Council at its 3205th
meeting, on
2)
Resolution 853 (1993), Adopted by the Security Council at its 3259th
meeting, on
3)
Resolution 874 (1993), Adopted by the Security Council at its 3292nd
meeting, on
4)
Resolution 884 (1993), Adopted by the Security Council at its 3313th
meeting, on
[3]Currently,
the Minsk Group consists of its three co-chairs
[4] Gleb Naumkim, "Azerbaijan is Not
Leaving the Agreement on Collective Security," Nezavisimaya Gazeta,
(February 25, 1999); Nigiar Mejidova, "Russian Facility is Killing
Azerbaijanis, Obshaya Gazeta, (December 9, 1999).
[5]Foreign
Operations, Export Financing, and Related Programs Appropriations Act,
Pub. L. No. 106-113, 113 Stat. 1501 (1999).
[8]Foreign
Operations, Export Financing and Related Programs Appropriations Act,
Pub. L. 105-277, 112 Stat. 2681, 160 (1998).
[13]Foreign
Operations, Export Financing and Related Programs Appropriations Act, Pub.
L. 105-118, 111 Stat. 2386, 2397 (1997).
[19]See
Foreign Operations, Export Financing, and Related Programs Appropriations
Act, Pub. L. 104-107, 110 Stat. 704, 714 (1996) ("Notwithstanding any other
provision of law, assistance may be provided for the Government of
Azerbaijan for humanitarian purposes, if the President determines that
humanitarian assistance provided in Azerbaijan through nongovernmental
organizations is not adequately addressing the suffering of refugees and
internally displaced persons.").
[21]See
Foreign Operations, Export Financing, and Related Programs Appropriations
Act, Pub. L. 105-118, 111 Stat. 2386, 2397 (1997).
[23]See
Fiscal Year 1999 Foreign Operations Appropriations Act, Pub L. 105-277, 112
Stat. 2681, 160-61 (1998).
[25]145
Cong. Rec. S7,840 (daily ed.
[27]
[31]Article
1, common to both the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and Political Rights
reads:
1. All peoples have the
right of self-determination. By
virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development;
3. The States Parties to
the present Covenant ... shall promote the realization of the right of
self-determination, and shall respect that right, in conformity with the
provisions of the Charter of the United nations.
International Covenant on Civil and Political Rights,
[32]U.N.
Commission of Human Rights, Res. 1993/23, Succession of States in Respect of
International Human Rights Treaties.
[33]U.N.
General Assembly Resolution 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 28,
at 124, U.N. Doc. A/8028 (1970).
[34]The
United Nations Economic and Social Cooperation Organization (UNESCO) defines
"people" as individuals who relate to one another not just on the level of
individual association, but also based upon a shared consciousness, and
possibly with institutions that express their identity.
UNESCO considers the following
indicative characteristics in defining people: (a) a common historical
tradition; (b) religious or ethnic identity; (c) cultural homogeneity; (d)
linguistic unity; (e) religious or ideological affinity; (f) territorial
connection; and (g) common economic life.
See Patrick Thornberry,
The Democratic or Internal Aspect of
Self-Determination, in
Modern Law of Self-Determination
102, 124 (Christian Tomuschat ed., 1993).
[35]Lea
Brilmayer, Secession and
Self-Determination: A Territorial Interpretation, 16
Yale J. Int'l L. 177, 178-79
(1991).
[36]Ved
Nanda, Self-Determination Under
International Law: Validity of Claims to Secede, 13
Case W. Res. J. Int'l L. 257,
276 (1981).
[37]Case
Concerning the Frontier Dispute (
[38]See Curtis G. Berkey, International Law and Domestic Courts: Enhancing Self-Determination for Indigenous Peoples, 5 Harv. Hum. Rts. J. 65, 79 n.88 (1992); Deborah Z. Cass, Re-Thinking Self-Determination: A Critical Analysis of Current International Law Theories, 18 Syracuse J. Int'l L. & Com. 21 (1992); Antonio Cassese, The Self-Determination of Peoples, in The International Bill of Rights 92, 101 (Louis Henkin ed., 1981); Thomas M.