The Nagorno Karabagh Crisis: A Blueprint for Resolution (Part II)
A Memorandum Prepared by the Public International Law & Policy Group and the New England Center for International Law & Policy (June, 2000)
June 1, 2000
Contact: Public International Law & Policy Group and the New England Center for International Law & Policy
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. In the Western Sahara case in 1975, the Frontier Dispute case in 1986, and the Case Concerning East Timor in 1995, the International Court of Justice held that the principle of self-determination has crystallized into a rule of customary international law, applicable to and binding on all States.
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." Before its break up, the Soviet Union was a party to both of these human rights treaties, and the U.N. Human Rights Commission confirmed in 1993 that the former Soviet Republics continue to be bound by these treaty obligations.
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. 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.
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.
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.
3. Self-Determination and the Right to Independence
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.
However, the modern trend, supported by the writing of numerous scholars, U.N. General Assembly resolutions, declarations of international conferences, judicial pronouncements, decisions of international arbitral tribunals, 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.
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." 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 Quebec could properly secede from Canada, the Canadian Supreme Court found that,
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."
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.
As the Court found that the people of Quebec had not been "denied meaningful access to government to pursue their political, economic, cultural and social development, they were not entitled to secede from Canada" without the agreement of the Canadian government. Implicitly, however, had the Court found that the people of Quebec were denied any such right of democratic self-government and respect for human rights, then unilateral secession from Canada would have been permissible under international law.
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. 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 Serbia, the international community (through NATO action) supported the effort of the Albanian Kosovars to attain a status that can be characterized as "intermediate sovereignty" within Kosova's regional borders.
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.
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 Aaland Islands dispute recognized de facto independence as a special factor:
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.
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.
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."
4. The Process for Exercising the Right of Self-Determination
In acknowledging the independence of Slovenia, Croatia, Bosnia-Herzegovina and Macedonia, the international community, and in particular the European Union, established a number of preconditions, such that their attainment of international status would be exercised consistent with the principles of uti possidetis and respect for territorial integrity. To that end, the international community recognized these states within the borders that they possessed as constituent territorial units of the former Yugoslavia. The international community also required these states to hold a referendum confirming the wishes of the general public to seek independence, and to demonstrate their commitment to respect fundamental principles of international law, including those relating to the protection of minority rights, democratic processes of governance and economic organization, and the protection of human rights.
B. Nagorno Karabagh's Legal Entitlement to Independence
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.
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 Armenia and was also a separate "Melikdom" under the Persian Empire. Nagorno Karabagh's distinct territorial identity was recognized by the Soviet Union when it was designated an "autonomous region" (1923 through 1989) and later as an "ethno-territorial administrative division" administered directly from Moscow rather than by Azerbaijan (January through November 1989).
With respect to the subjective prong of the test, the Armenian population of Nagorno Karabagh responded to the decision of Azerbaijan to remove the autonomy of Nagorno Karabagh and to place the region under Azerbaijan's direct administration in November 1991, by holding an internationally monitored referendum on the independence of the region. On December 10, 1991, 82 percent of the Nagorno Karabagh electorate (as determined by the January 1989 USSR census) took part in this vote in which a 99.7 percent majority supported secession. Since this time, the Nagorno Karabagh Republic has essentially operated as a de facto state.
2. Nagorno Karabagh's Right to Self-Determination Includes the Right to Independence
The Azerbaijanis argue that political independence for Nagorno Karabagh violates the right of Azerbaijan to territorial integrity. But the claim to territorial integrity can be negated where a state does not conduct itself "in compliance with the principle of equal rights and self-determination of peoples" and does not allow a subject people "to pursue their economic, social and cultural development" as required by United Nations General Assembly Resolution 2625(XXV). Moreover, it should be noted that when Azerbaijan declared independence from the Soviet Union, it claimed to be the successor state to the Azerbaijani Republic of 1918-1920. The League of Nations, however, did not recognize Azerbaijan's inclusion of Nagorno Karabagh within Azerbaijan's claimed territory.
Prior to 1988, Azerbaijan's human rights record with respect to the Armenian people of Nagorno Karabagh was dismal. During the seven decades of the USSR's existence, the government of Soviet Azerbaijan conducted a systematic policy of repression and removal of Karabagh Armenians from their historic homeland. During this time, the Armenian population in Nagorno Karabagh was reduced from ninety-five percent of the total population of the region in 1926, to seventy-five percent of the population in 1976.
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." Azerbaijan began a blockade of food and fuel into Nagorno Karabagh which continues to the present. In view of these developments, Nobel Peace Prize laureate Andrei Sakharov warned in November of 1988 that the "Armenian people are again facing the threat of genocide," and that "for Nagorno Karabagh this is a question of survival, for Azerbaijan - just a question of ambitions." Hence, the prospects for guaranteeing human rights and allowing the Karabagh Armenians to pursue their "economic, social and cultural development" under Azerbaijani rule, even with Azerbaijani assurances of local autonomy, are not very promising. Under these circumstances, the Nagorno Karabagh claim to self-determination through independence may supersede Azerbaijan's claim to territorial integrity.
That Nagorno Karabagh has had to resort to force to protect itself, to break the Azerbaijani blockade by opening the Lachin Corridor to Armenia and the world, and to establish defensible borders does not disqualify it from the right to independence. In fact, the tension between the right of Nagorno Karabagh to self-determination and the right of Azerbaijan to maintain its territorial integrity must be analyzed in view of the de facto independence Nagorno Karabagh has achieved and maintained for the past six years by virtue of the success of its armed forces, and its development of civil and political institutions.
Nagorno Karabagh now meets all of the traditional requirements for statehood set forth by the Montevideo Convention. 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 Andorra (66,000), Liechtenstein (32,000), Marshall Islands (66,000), The Federated States of Micronesia (132,000), Monaco (32,000), Nauru (11,000), Palau (18,000), and San Marino (25,000). Nagorno Karabagh has its own democratically elected president and legislature. Its government commands the armed forces, and engages in discussions with foreign states. Through its government institutions, Karabagh has the capacity to conduct international relations and has represented the people of the region at international peace negotiations under the mediation of the Organization on Security and Cooperation in Europe, as well as established representative offices in the United States, France, Russia, Lebanon, Australia, and Armenia.
Finally, Nagorno Karabagh's right to independence is also consistent with the balancing-of-factors approach advocated by some commentators. 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 Azerbaijan on matters relating to refugee return and minority rights protections, as well as on a range of other subjects relevant to their bilateral relationship.
As for its effect on Azerbaijan, the de jure secession of Nagorno Karabagh would have little effect. Azerbaijan would lose only two percent of its total population and it would neither lose a part of its oil fields nor be cut off from important connecting roads or waterways. The end of oppression and the avoidance of a further escalation of violence would be in the international interest. And as discussed in more detail below, a negotiated exchange of territories could improve the security of both Nagorno Karabagh and Azerbaijan and substantially reduce the current level of instability in the region.
Thus, international law provides a firm basis for Nagorno Karabagh's pursuit of independence from Azerbaijan. Based on recent precedents established in a number of other peace processes, the next section proposes a two-phased procedure for the attainment of international recognition of Nagorno Karabagh's de jure independence.
Hurst Hannum, Autonomy, Sovereignty, and Self Determination: the Accommodation of Conflicting Rights 45 (190).
Western Sahara, 1975 I.C.J. 3, 31-33 (Advisory Opinion, Jan. 3).
Case Concerning the Frontier Dispute (Burkina Faso v. Mali), 1986 I.C.J. 554, 566-67 (Dec. 22).
Case Concerning East Timor (Port. v. Austr.), 1995 I.C.J. 90 (June 30).
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, 16 Dec. 1966, art. 1, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, art. 1, 993 U.N.T.S. 3.
U.N. Commission of Human Rights, Res. 1993/23, Succession of States in Respect of International Human Rights Treaties.
U.N. General Assembly Resolution 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 28, at 124, U.N. Doc. A/8028 (1970).
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).
Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, 16 Yale J. Int'l L. 177, 178-79 (1991).
Ved Nanda, Self-Determination Under International Law: Validity of Claims to Secede, 13 Case W. Res. J. Int'l L. 257, 276 (1981).
Case Concerning the Frontier Dispute (Burkina Faso v. Mali), 1986 I.C.J. 554, 565 (Dec. 22). In the Frontier Dispute Case, the International Court of Justice acknowledged an "apparent contradiction" between the principles of uti possidetis and self-determination. Id. at 567. But the Court did not elaborate on this statement because it was limited by an agreement of the parties to resolve their dispute on the basis of the "principle of intangibility of frontiers inherited from colonization." Id. at 565.
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. Franck, Postmodern Tribalism and the Right to Secession, in Peoples and Minorities in International Law 3, 13-14 (Catherine Brolmann, Rene Lefeber & Marjoleine Zieck eds., 1993); Otto Kimminich, A "General" Right of Self-Determination?, in Modern Law of Self-Determination 83 (Christian Tomuschat ed., 1993); Frederic L. Kirgis, Jr., The Degrees of Self-Determination in the United Nations Era, 88 Am. J. Int'l L. 304 (1994); W. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law 181-90 (1977); Gary J. Simpson, Judging the East Timor Dispute: Self-Determination at the International Court of Justice, 17 Hastings Int'l L. & Contemp. L. Rev. 323, 340 (1994); Christian Tomuschat, Self-Determination in a Post-Colonial World, in Modern Law of Self-Determination 1, 2-8 (Christian Tomuschat ed., 1993).
See, e.g., Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, Annex to GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028 (1970), reprinted in 9 ILM 1292 (1970).
 See, e.g., Vienna Declaration and Programme of Action, pt. I, para. 2, U.N. Doc. A/CONF.157/24 (pt. I) (1993), reprinted in 32 ILM 1661 (1993).
 See, e.g., Decision of the Supreme Court of Canada in the Matter of Section 53 of the Supreme Court Act, R.S.C. 1985, C. S-26, and in the matter of A Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1997, dated September 30, 1996, at para. 154 (emphasis added).
 See, e.g., Conference on Yugoslavia Arbitration Commission Opinion No. 1, Opinions on the Questions Arising from the Dissolution of Yugoslavia, reprinted in 31 I.L.M. 1494-97 (Nov. 1992).
U.N. G.A. Res. 2625(XXV), U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028 (1970) [emphasis added].
Id. A similar clause was included in the 1993 Vienna Declaration of the World Conference on Human Rights, which was accepted by all United Nations member states. However, the Vienna Declaration did not confine the list of impermissible distinctions to those based on "race, creed or color," indicating that distinctions based on religion, ethnicity, language or other factors would also trigger the right to secede. Vienna Declaration and Programme of Action, pt. I, para. 2, U.N. Doc. A/CONF.157/24 (pt. I) (1993), reprinted in 32 ILM 1661 (1993).
Decision of the Supreme Court of Canada, at para. 154 (emphasis added).
Id., at para. 154.
Conference on Yugoslavia Arbitration Commission Opinion No. 1, Opinions on the Questions Arising from the Dissolution of Yugoslavia, reprinted in 31 I.L.M. 1494-97 (Nov. 1992).
Frederic L. Kirgis, Jr., The Degrees of Self-Determination in the United Nations Era, 88 Am. J. Int'l L. 304 (1994).
Committee of Jurists, Report on the Aaland Islands Question, League of Nations O.J. Spec. Supp. 3, at 6 (1920).
Montevideo Convention on Rights and Duties of States, Art. 1, Signed Dec. 26, 1933, 49 Stat. 3097, 300.
Lee C. Buchheit, Secession: The Legitimacy of Self-Determination 217 (1978); Michla Pomerance, Self-Determination in Law and Practice 73-74 (1982).
See supra notes 40-42 and accompanying text.
See Haig E. Asenbauer, On the Right of Self-Determination of the Armenian People of Nagorno Karabakh 98 (1995).
U.N. G.A. Res. 2625(XXV), U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028 (1970).
Armen Tamzarian, Nagorno Karabagh's Right to Political Independence Under International Law: An Application of the Principle of Self-Determination, 24 S.W. U. L. Rev. 183, 208 (1994).
See Armen Tamzarian, Nagorno Karabagh's Right to Political Independence Under International Law: An Application of the Principle of Self-Determination, 24 S.W. U. L. Rev. 183, 201 (1994).
Montevideo Convention on Rights and Duties of States, Art. 1, Signed Dec. 26, 1933, 49 Stat. 3097, 300.
The World Almanac and Book of Facts 2000 878-879 (1999).
A Delegation from Nagorno Karabagh was invited to participate, along with Armenia, Azerbaijan, Russia, Germany, France, the Czech Republic, Sweden, Italy, Belarus, the US, and Turkey in a peace conference for Nagorno Karabagh to be held in Minsk. A series of documents related to the peace negotiations have born the signature of officials of Nagorno Karabagh represented as a separate entity. These include (1) the Timetable of Urgent Steps proposed by the chairman of the CSCE Minsk Group, on June 14, 1993; (2) the Moscow Communique of February 18, 1994, following negotiations among the defense ministers of Armenia, Azerbaijan and the representative of Nagorno Karabagh's Army of Defense; (3) the Bishkek Protocol of May 9, 1994, as the fruit of negotiations among the parliament speakers of Armenia, Azerbaijan, and Nagorno Karabagh undertaken within the Commonwealth of Independent States Interparliamentary Assembly Mediation Mission; and (4) the Agreement on Cease-Fire, mediated by Russia on May 12, 1994, among the ministers of defense of Armenia and Azerbaijan and the commander of Nagorno Karabagh's armed forces.
See supra note 58 and accompanying text.
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