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The Nagorno Karabagh Crisis: A Blueprint for Resolution (Part III)

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

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 Azerbaijan. The second element would entail establishment of specific commitments on the part of Nagorno Karabagh and Azerbaijan to permit and encourage the return of refugees and internally displaced persons, provide for the protection of human rights and minority rights, and engage in a series of defined confidence building measures. The third element would entail the assistance of the international community in implementing and monitoring the interim arrangement and assisting with the preparations for eventual independence.

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 recognized 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 Azerbaijan's compliance with its commitments as well, and the results of a second referendum held in Nagorno Karabagh.

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 Republic of Montenegro, one of the last two constituent republics of the Federal Republic of Yugoslavia, presented a proposal for greatly enhanced autonomy. Montenegro’s proposal would transform the existing federation into a confederation of two equal states, characterized as a “joint state.” If the Montenegrin demands for increased autonomy are not met, Montenegro threatens to hold a referendum on independence from Yugoslavia.

The 1999 Agreement on the Question of East Timor between the Republic of Indonesia and the Portuguese Republic adopted under the auspices of the United Nations. This agreement includes an annex entitled: A Constitutional Framework for a Special Autonomy for East Timor. In addition, Portugal, Indonesia and the United Nations entered into the East Timor Popular Consultation Agreement Regarding Security and the Agreement Regarding the Modalities for the Popular Consultation of the East Timorese Through a Direct Ballot, both dated May, 5, 1999. The UN Security Council passed a resolution in support of the Agreement between Indonesia and Portugal and related documents.

The 1999 Rambouillet/Paris Accords, which were negotiated under the auspices of the Contact Group (Russia, United States, France, Great Britain, Germany and Italy), and were signed by the Kosovar delegation, and witnessed by the Contact Group, but not signed by the Serbian delegation. The essence of the Rambouillet/Paris Accords were confirmed as guiding in UNSC Resolution 1244 which established the mandate for the UN administration of Kosova at the conclusion of the NATO air campaign.

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 April 10, 1998, which, among other things, affirmed the Good Friday Agreement.

The 1995 Dayton Accords, which the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Republic of Yugoslavia signed, consists of the General Framework for Peace Agreement that formally ended the war in Bosnia. The agreement created a multi-ethnic state consisting of two entities, the Federation of Bosnia and Herzegovina and the Republika Srpska, but efforts to implement its terms have been hindered both by continued ethnic animosity and the complex machinery of ethnic checks and balances built into the constitution of the state.

The Oslo Accords of 1993 and the Wye River Memorandum of 1998 (signed by Israel and the PLO, and witnessed by the US and Russia) created the framework for permanent status negotiations between the Israelis and the Palestinians. While Oslo focused on the doctrine of “land for peace,” Wye required the Palestinians to “earn” the right to partake in permanent status talks and, subsequently, “earn” their independence.

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 Cyprus in 1992. Although never finally agreed upon by the parties at that time, the Overall Framework Agreement remains the most recent formal draft proposal for resolving the conflict.

The Compact of Free Association Act of 1985,[62] which was signed into law in 1986, is the agreement between the Federated States of Micronesia and the Republic of the Marshall Islands and the United States, as administering authority of the Trust Territory of the Pacific Islands. The Compact establishes a relationship of free and voluntary association between the United States and each of the Federated States of Micronesia and the Republic of the Marshall Islands, which both became fully self-governing. Under the Compact, the United States provides both former trust territories with economic assistance and is responsible for all security and defense matters.

A. Phase One: Intermediate Sovereignty

1. Managing the Interim Arrangement and Preparing for Independence

To manage the relationship between Nagorno Karabagh and Azerbaijan during the interim period it will be necessary to establish mechanisms for cooperation and interaction between them. To prepare Nagorno Karabagh for the full exercise of its right of self-determination and the possibility of internationally recognized independence, it would further be prudent to permit Nagorno Karabagh to enter into formal relationships with neighboring states and international organizations and to allow both entities to negotiate the exchange of territory with respect to the security needs and considerations of each.

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 Azerbaijan given that attempts to intermingle governmental functions would likely be highly disruptive, as well as unattractive to the parties.[63]

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, Israel and the Palestinians agreed to form a Joint Israeli-Palestinian Liaison Committee to ensure smooth implementation of the Declaration of Principles, as well as a Joint Israeli-Palestinian Economic Cooperation Committee to ensure mutual benefit of cooperation and the development of the West Bank, Gaza and Israel. Other joint committees mentioned in the Wye River Agreement include the Monitoring and Steering Committee, the Civil Affairs Committee, the Legal Committee and the Standing Cooperation Committee.

A central theme in the Good Friday Agreement is the concept of joint consultation and coordination among the interested governmental entities of Northern Ireland, the United Kingdom and the Republic of Ireland. The Good Friday Agreement breaks these relationships into three “strands.” Strand One is the Northern Ireland Assembly, which is composed of 108 members from a cross-section of the Northern Ireland community, tasked with acting on a cross-community basis. Strand Two is the North/South Ministerial Council, composed of executive level representatives from the Northern Ireland and Irish governments, which serves as a forum for cooperation in sectors such as agriculture, education, transport, environment, waterways, social security and social welfare, tourism, certain EU Programs, inland fisheries, aquaculture and marine matters, health and urban and rural development. Strand Three is the British-Irish Council, composed of representatives from the British government, the Irish government and the devolved institutions of Northern Ireland, as well as the governments of Scotland and Wales, which functions at a summit level for the exchange of information and coordination of common policies on issues such as transport, agriculture, the environment and cultural, health, and EU issues.[64] The Good Friday Agreement also calls for an independent commission to determine future policing arrangements, with the goal of achieving cross-community policing and non-discrimination.

With respect to the status of East Timor, the Constitutional Framework for a Special Autonomy for East Timor would have been the governing document had East Timor adopted the special autonomy relationship rather than independence in its August 1999 referendum. The Framework set forth concepts and mechanisms for the coordination and cooperation between the government of the Republic of Indonesia (Indonesian Central Government) and the Special Autonomous Region of East Timor (SARET). The Framework allows for the creation of unlimited and unidentified “bodies or other arrangements to facilitate consultation, cooperation, and coordination on such matters as police matters, tourism, transportation, telecommunications, education, health and the environment.”[65] In addition, the SARET police force and officials of the Indonesian Central Government would be required to coordinate with each other with respect to the apprehension of suspects accused of committing crimes in and outside of the SARET. Furthermore, the Framework would have provided for the creation of a Transitional Council, composed of no more than 25 persons of East Timorese identity appointed by the United Nations, to facilitate the smooth functioning of general administrative, public services and public order in the period between the vote in favor of the SARET and the establishment of the SARET.[66]

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 Bosnia and Herzegovina than would be appropriate with respect to Nagorno Karabagh and Azerbaijan in light of their current de facto situation, the Dayton Accords do provide for coordinating arrangements as well. For instance, a Joint Military Commission, composed of the senior military commanders of the parties and chaired by the commander of the peacekeeping force, serves to advise the commander of the international peacekeeping force and as a channel for addressing cease-fire violations or other acts of non-compliance with the provisions of the peace agreement. In addition, the entities that make up Bosnia and Herzegovina are committed to coordinating their military activities through a Standing Committee on Military Matters. The Standing Committee includes the members of the three-person presidency, each of whom exercises civilian control over independent armed forces.

With these precedents in mind, Nagorno Karabagh should establish Joint Committees providing for cooperation between the highest political levels of Nagorno Karabagh and Azerbaijan, as well as between technical agencies concerning rail, Postal Telegraph and Telephone, commerce, and culture. Joint Commissions on refugee return, property restitution and compensation, border demarcation and economic cooperation should also be created. These Joint Commissions may also include the participation of an OSCE observer/facilitator. In addition, a Joint Military Commission should be created as a confidence building measure. The Joint Military Commission should be the primary entity, along with international representatives, for planning the demilitarization of territories to be exchanged.

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 Bosnia” and (2) to enter into agreements with states and international organizations with the consent of the [Bosnian] Parliamentary Assembly.”[68] The Republika Srpska also has the right to have at least one-third of the ambassadors and international representatives of Bosnia come from Srpska.

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 Republic of Serbia. Under the proposed framework for autonomy for East Timor, the Indonesian Central Government would retain primary authority and responsibility for foreign relations, strategic natural resources and defense. At the same time, the framework would allow the SARET, to the extent not inconsistent with the powers of the Indonesian Central Government and with the consent of the Indonesian Central Government, to enter into agreements and relationships with foreign countries and international organizations within selected spheres, as well as receive international development assistance.[69]

The Oslo agreement provides that both Israel and the Palestinians should pursue liaison and cooperation opportunities with Jordan and Egypt to ensure continued cooperation and economic growth among all those concerned. Although not specifically addressed in the Oslo/Wye Accords, as part of the Middle East peace process the PLO has attained an increasing level of representation in the United Nations. Starting in 1974, the PLO was granted observer status and was permitted to participate in the sessions and the work of the General Assembly and in the sessions and the work of all international conferences convened under the auspices of the General Assembly in the observer capacity. At that time, the PLO also established a permanent observer mission at UN headquarters in New York and in Geneva, and by UN Security Council resolution in 1975, it was decided that PLO representatives should be invited to participate in UN debates with the "same rights of participation as are conferred when a Member state is invited to participate under rule 37." Since then, such invitation was repeated by the UN Security Council on numerous occasions.

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 Cyprus, the federated states would be permitted to enter into agreements with foreign governments and international organizations “in their areas of competence.”[70] In addition, the Overall Framework Agreement specifically provides that Cyprus must maintain “special ties of friendship” with Greece and Turkey and accord them most favored nation treatment in connection with all agreements.[71]

The proposal of the Republic of Montenegro envisions each member state’s being represented equally in foreign missions, with member states having an independent mission in a foreign country “when a special interest in this exists.”

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, Azerbaijan currently occupies approximately 750 sq. km (15%) of territory considered to have traditionally been a part of Nagorno Karabagh, while Nagorno Karabagh controls 7,059 sq. km (8%) of territory considered to have traditionally been possessed by Azerbaijan. Taking into account security considerations, the exchange of some or all of this territory as part of the peace package may significantly promote the development of peaceful relations and remove a contentious issue from the future relations between Nagorno Karabagh and Azerbaijan.

The Wye accords focus on the commitments of Israel to give up land in exchange for a number of defined reciprocal commitments made by the Palestinians.[73] Bearing in mind the current situation in the Middle East, it is important, with respect to Nagorno Karabagh and Azerbaijan, that territory be exchanged for territory, as opposed to an arrangement whereby territory is exchanged for political commitments which are difficult to verify and which can be withdrawn or modified once the exchange of territory has taken place. In addition, it will be essential to ensure that the rights of minorities who remain in the exchanged territory will be protected, and it might be necessary for the parties to consent to the deployment of some form of OSCE monitors to ensure the simultaneous withdrawal of forces. Drawing from the lessons of the Israeli-Palestinian peace process, it would further be advisable for the exchanged territory to remain demilitarized. In the case of the Nagorno Karabagh conflict, it would be necessary for such demilitarization as the territory would serve as a buffer security zone between Nagorno Karabagh and Azerbaijan armed forces. Given the nature of the security concerns the parties might choose to exchange only a portion of the territory currently under their control

2. Confidence Building Measures

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 Cyprus provides detailed provisions governing the handling of displaced persons, with respect to both those displaced since 1974 as a result of the ongoing conflict and those displaced following territory adjustments under the Overall Framework Agreement. Under these provisions, a bi-communal committee would arrange for suitable housing for all persons affected by territorial adjustments.[75] Those, however, that were or were known to have been actively involved in acts of violence or incitement to violence against persons of the other Cypriot community would, subject to the due process of law, be prevented from returning to the territory administered by the other community.

As noted in the review of facts, there are over 600,000 refugees and internally displaced persons in Nagorno Karabagh and Azerbaijan. Although many of the refugees have resettled and are likely to be uninterested in returning to their previous homes, every effort should be made to ensure the right of return and to create conditions conducive to their return. In particular the parties should refrain from using state controlled media to incite ethnic and race hatred. The international community, through the UNHCR and private refugee agencies, should be actively involved in assisting Nagorno Karabagh and Azerbaijan to create such conditions, while the OSCE should be responsible for monitoring the efforts of Nagorno Karabagh and Azerbaijan to create such conditions and the actual level of return of refugees and displaced persons.

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 Cyprus, the ownership of property of displaced persons would be transferred to the ownership of the community in which the property is located through an exchange of property titles based on 1974 value plus inflation. Displaced persons would be compensated by the agency of their community from funds obtained from the sale of properties transferred to the agency or through the exchange of property. There would also be a process for persons from both communities who resided and/or owned property in 1974 in the area to be administered by the other community to file compensation claims. Under the proposed Framework for East Timor, the SARET could establish a Land Claims Commission to resolve disputed claims of title to real property.

In Nagorno Karabagh and Azerbaijan, property return and restitution commissions should be created 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 - whichever the owner prefers. The efforts of these commissions should be coordinated by a Joint Commission on Property Return and Restitution. Given the widespread and intentional destruction of civilian and public property during the conflict it may further be advisable to create a commission to assess war damages.

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 Northern Ireland, there is to be a “democratically elected Assembly … which is inclusive in its membership … and subject to the safeguards to protect the rights and interests of all sides of the community.”[76] There is also proportionate allocation of the Committee Chairs, Ministers and Committee Membership, and key decisions, such as the election of the First Minister and budget allocations, must be made on a cross-community basis. The Good Friday Agreement calls for the promotion of tolerance and integration in areas such as housing and education. Moreover, public office holders must take a pledge to serve all the people of Northern Ireland and to promote equality and non-discrimination.[77] The Ministers are also bound by a Code of Conduct that requires them to uphold equality of treatment. The Good Friday Agreement refers to the European Convention on Human Rights as a guide for the array of human rights that should be safeguarded in Northern Ireland; however, the responsibility for safeguarding these rights runs across governmental lines to the United Kingdom, the newly formed bodies of Northern Ireland and the Republic of Ireland, as well as a Joint Committee (of Human Rights Commissions), an Equality Commission and a Northern Ireland Victims Commission aimed at “reconciliation” through community-based initiatives.

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 Azerbaijan there will be a need to ensure minority right protection. Nagorno Karabagh, as an intermediate sovereign, should adopt the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols into domestic law. A mechanism should be created to assist minorities in Azerbaijan to effectively utilize the Council of Europe process for enforcing the European Convention, and the OSCE should ensure that all appropriate domestic legislation has been adopted to give the Convention effect in Azerbaijan and that adequate remedies are available. Relevant United Nations Conventions should also be given full force and effect in both Nagorno Karabagh and Azerbaijan.

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 Cyprus also provides detailed provisions to govern the demilitarization of the Cypriot communities.[84]

Key to the successful implementation of the self-governing process in Northern Ireland is the decommissioning of weapons. This element is currently threatening the survival of the Northern Ireland bodies recently empowered with devolved authorities. A commitment to decommissioning and non-violence, and the maintenance of any “cease fire” has been taken by interested parties as a critical step – viewed by some as a pre-condition – to achieving self-governance.

Although the cease-fire between Nagorno Karabagh and Azerbaijan is well-established and both entities have made commitments to the peaceful settlement of the dispute, Azerbaijan has recently signaled its interest in the possibility of again attempting to resolve the dispute through the use of force. The permanent resolution of the dispute will, however, be promoted with the 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.

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 Bosnia.[86] In the area of refugee assistance and repatriation, the Dayton Accords require the parties to grant access to the United Nations High Commissioner for Refugees, the International Committee of the Red Cross and the United Nations Development Programme, all of which thereby have acknowledged roles in the implementation of the settlement.[87] Finally, an International Police Task Force, under the auspices of the United Nations, was established to train and monitor law enforcement personnel and their activities.[88]

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 Bosnia.

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. Azerbaijan should similarly commit to the stationing of military and human rights observers within its territory. These monitors could then perform a useful function in communicating to the international mechanism charged with structuring Nagorno Karabagh independence the level of compliance and articulating their evaluations concerning the nature of Nagorno Karabagh's expected future compliance.

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 Oslo and Wye accords create a process for earned final status negotiations. If the parties comply with the obligations undertaken in Oslo and Wye, then they will be entitled to begin permanent status negotiations not later than the beginning of the third year of implementation. The permanent status negotiations would consider the status of any remaining controversial issues such as Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors. The agreements reached in the interim negotiations were not to prejudice permanent status negotiations. In the event the Palestinians fulfilled their commitments under the Oslo and Wye accords, they would in effect possess de facto, but not de jure, independence.

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 Indonesia and Portugal.[92] The Consultation Agreement provided that both the registration of voters and the actual referendum would occur both inside and outside of East Timor, thereby ensuring the participation of the diaspora. The referendum process was conducted under the auspices of the United Nations.[93] The Consultation Agreement also set forth a detailed schedule for the process leading up to and including the referendum, which included operational planning and deployment, dissemination of public information, preparation and registration, exhibition of lists and challenges, political campaigns and a cooling-off period immediately prior to the polling day. The right to vote was extended to those aged 17 and older if (1) they were born in East Timor; (2) they were born outside of East Timor and had at least one parent born in East Timor; or (3) their spouse fell under (1) or (2).

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 Northern Ireland were asked to vote on a specified date whether or not to cease being a part of the United Kingdom.[96] The Good Friday Agreement assumed that unless a majority of those voting opted for the separation from the United Kingdom, Northern Ireland would remain. The Irish people were asked to vote on a constitutional amendment that would essentially relinquish their claim to the territory of Northern Ireland. In addition, under the Good Friday Agreement, the majority of the people of Northern Ireland can, through a later referendum, choose to join the Republic of Ireland. The Secretary of State can call for the referendum not more frequently than once every seven years if, in his or her view, it is “likely” that the majority of those voting would “express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.” If the result favors uniting with Ireland, then the Secretary of State is obligated to take such proposals as are necessary to the British Parliament to give effect to that result. The British and Irish Governments each committed to honor the results of a properly-conducted referendum of the majority of the people of Northern Ireland.

With respect to the freely associated states of FSM and the Marshall Islands, either may terminate the Compact of Free Association with the United States, pursuant to their respective constitutional processes, if the people represented by such government vote in a referendum to terminate and proper notice is given to the United States government. In the case of such a termination of the Compact, the United States government and the government so terminating would promptly consult with each other regarding their future relationship and the continuing level of economic assistance that the United States government would provide to the terminating government.

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 Azerbaijan would be committed to honor. Participants in the 1989 census not currently present in Nagorno Karabagh should be provided with an opportunity to participate in the referendum, including Nagorno Karabagh citizens currently or previously present in the Shaumian district.

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 Azerbaijan would undertake to comply with a number of confidence building measures and obligations concerning matters of human rights.

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 Azerbaijan.

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 Azerbaijan;

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.

New England Center for International Law & Policy The Center for International Law & Policy at New England School of Law was established in1996 to promote the study and understanding of the relationship between international law and policy, with special emphasis on issues vital to the national interest. To this end, the Center sponsors symposia, research, publication, teaching, pro bono assistance, and the dissemination of knowledge in these areas.

Annex B

Contributing Attorneys

Nancy E. Furman is an associate in the Washington, D.C. office of Wilmer, Cutler & Pickering. She specializes in corporate transactions and has substantial experience in mergers and acquisitions, public and private financing, corporate restructuring, e-commerce and international matters, including privatization transactions with the government of the Republic of Armenia and the representation of Kosovo on issues of public international law. Ms. Furman has served as a law clerk to Chief Judge Charles P. Sifton of the U.S. District Court for the Eastern District of New York. Ms. Furman received her J.D. from Harvard Law School and her B.A. from Yale University.

Maura E. Griffin is an associate in the Washington, D.C. office of Wilmer, Cutler & Pickering. Ms. Griffin's practice includes a focus on international corporate transactions and aviation‑related matters. She has also been involved in public international law issues such as representation of human rights organizations and the government of Kosovo. Ms. Griffin has a background in international environmental law and development law and finance, including work with Conservation International. She received her L.L.M. in International and Comparative Law from the Georgetown University Law Center, her J.D. from Tulane University, and her B.A. and Certificate in International Studies from the College of the Holy Cross. Prior to obtaining her J.D., Ms. Griffin worked with the Phelps Stokes Fund where she designed and administered US Information Agency international visitor projects, and with the Carnegie Endowment for International Peace where she coordinated its foreign policy forum.

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 Bosnia-Herzegovina, Macedonia and Estonia and served as legal advisor to the Underrepresented Nations and Peoples Organization in the Hague. He was also a Fulbright Scholar at the Institut d'Etudes Politiques de Paris, concentrating on issues relating to ethnic conflict. Mr. Goebel received his J.D. from Harvard and his B.A. from Cornell University and is a member of the French Society for International Law.

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 European Academy of Arts and Sciences. Mr. Janigian was vice president and director of the Salzburg Seminar, as well as holding Fulbright and visiting professorships in international law at the University of Salzburg. Formerly Attorney Adviser to the US Agency for International Development, he has held executive appointments for the State of California, and was a visiting scholar at the Hoover Institution on War, Revolution and Peace. Mr. Janigian received his B.A. from the University of California, Berkeley, his J.D. from the University of California, Hastings, and his LL.M. in International and Comparative Law from George Washington University.

Andrew J. Lorentz is an associate in the Brussels, Belgium office of Wilmer, Cutler & Pickering specializing in international corporate transactions and European competition law. Mr. Lorentz has substantial experience in mergers and acquisitions, privatizations, and project finance matters. He has also represented foreign governments, including Kosovo, the United Arab Emirates, and the Sultanate of Oman, on public international law, international finance, and infrastructure projects. Mr. Lorentz has a background in military and intelligence affairs, having served as an intelligence officer in the US Army and the Drug Enforcement Administration of the US Department of Justice. Mr. Lorentz received his J.D. from Georgetown University, an M.A. in International Relations from Boston University, and his B.A. from the University of Pennsylvania.

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 Russia, China, India, Turkey, and Brazil. Previously, Mr. Lantz was an associate at Wilmer, Cutler & Pickering in Washington, D.C., where he represented clients in Central and Eastern Europe and Latin America in corporate transactions, including privatizations, project finance, international lending, and equity investments. He is a member of the adjunct faculty of the Georgetown University Law Center where he teaches International Business Transactions. Mr. Lantz received his LL.M. in International and Comparative Law from Georgetown University, a J.D. from the McGeorge School of Law, an M.B.A. from National University, and his B.A. in international relations from California State University, Sacramento.

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 Duke University.

Paul R. Williams teaches international law and international relations at the American University. Previously he held the position of Senior Associate with the Carnegie Endowment for International Peace, and served as an Attorney-Advisor in the Office of the Legal Advisor for European Affairs in the United States Department of State. During the Dayton Peace Negotiations he served as the Legal Advisor to the Bosnian delegation, and during the Rambouillet/Paris Negotiations he served as Legal Advisor to the Kosovar delegation. At other times he has advised the governments of Macedonia and Estonia on matters of public international law. Mr. Williams holds a Ph.D. from the University of Cambridge, a J.D. from Stanford Law School, and an A.B. from the University of California at Davis.

Endnotes:

[62] 48 USC. §1681 et seq.

[63] In the case of the Rambouillet/Paris accords with respect to Kosova, the international community attempted to construct a highly complicated set of interrelationships between Kosova and the Serb Republic, between Kosova and the Federal Republic of Yugoslavia (FRY), and within Kosova among the Kosova Albanians and the Serbian minority. These mechanisms were based on the Dayton Accord mechanisms and were generally perceived to be unworkable and likely to enhance the tension between the parties rather then creating an environment suitable to a long term resolution of the conflict. As a result, during the current interim administration of Kosova, the UN Mission in Kosova has essentially rejected the approach of the Rambouillet/Paris Accords relating to joint FRY/Kosova and Republic of Serbia/Kosova institutions and has rather sought to create a Kosova-wide Governing Council, inclusive of all minority representatives.

[64] In addition, the British-Irish Intergovernmental Conference and the British Irish Agreement establish commitments between Britain and Ireland to honor their obligations and not encroach on the affairs of Northern Ireland.

[65]Art. 50.

[66] The Indonesian Central Government, the United Nations and the Transitional Council were also to have consulted with each other and coordinated the transition of powers to the SARET, including transitional security issues.

[67] Set of Ideas on an Overall Framework Agreement on Cyprus, 1992, Art. VIII, para. 94. The Overall Framework Agreement also lays out a number of specific bi-communal committees to foster relations and promote goodwill between the Greek Cypriot and Turkish Cypriot communities during the transition period, including ones (1) to review school textbooks and recommend removal of material contrary to the promotion of goodwill and close relations; (2) to survey the water situation and make recommendations for meeting the water needs of Cyprus; (3) to promote the restoration of historical and religious sites throughout Cyprus and (4) to undertake a population census of both communities. See Id., Appendix. Each of the bi-communal committees would be permitted to request expert assistance as required.

[68] Constitution of Bosnia and Herzegovina, Art. III,paras.2(a) and (d).

[69] See Framework Agreement, Art. 55. While this provision gives only a limited degree of flexibility to conduct foreign affairs independent of the Indonesian Central Government, the ability to obtain international development assistance has been central to East Timor in its urging of the international community, and ASEAN nations in particular, to provide economic assistance and support to East Timor.

[70] Set of Ideas on an Overall Framework Agreement on Cyprus, 1992, Art. III(A), para. 26(a).

[71] Id. at Art. II, para. 14, Art. VII, para. 90 and Appendix, para. 9. Cf. id., Appendix, para. 10 (“Both communities will … terminate all current or pending recourse before an international body against the other community or Greece or Turkey.”)

[72] 48 USC. §1681 et seq.

[73] Article V of the Overall Framework Agreement on Cyprus also provides detailed provisions regarding territorial adjustments, which proved the main stumbling block to resolution of the conflict in 1992.

[74] Annex 7, esp. Art. XII.

[75] Set of Ideas on an Overall Framework Agreement on Cyprus, Art. VI(A).

[76] Strand One, Paragraph 1.

[77] If an individual holding office fails to use democratic and non-violent means in the exercise of his or her duties, then that individual can be removed from office.

[78] These rights include traditional universally recognized rights, such as freedoms from torture and of religion and more novel rights such as the right to an adequate standard of living and the rights of the child.

[79] See Annex 6. [80] See Annex 1A. [81] See Annex 1B. [82] See Annexes II and V. [83] See Annex 11. [84] See Set of Ideas on an Overall Framework Agreement on Cyprus, at Art. IV.

[85] See General Framework for Peace Agreement, Annex 1A.

[86] See, Annex 3. [87] See, Annex 7. [88] See, Annex 11. [89] See Set of Ideas on an Overall Framework Agreement for Cyprus, Art. IV, para.63.

[90] See Overall Framework Agreement for Cyprus. at para. 64-65.

[91] During the negotiations, US Secretary of State Albright provided the Kosova delegation with a letter confirming that this provision envisioned the holding of a referendum wherein the people of Kosova would vote on the nature of the final status of Kosova. No provision was made for determining who could in fact vote in the referendum, but it would presumably include all Kosovars present in Kosova before the start of the conflict in 1998.

[92] At the initiative of the United Nations, the date of the referendum was extended in order to ensure the existence of a proper environment for the referendum. [93] The United Nation’s involvement ranged from having its logo on the ballot to responsibility for tallying and announcing the results of the vote.

[94] The East Timor Popular Consultation Agreement Regarding Security specifically addressed the establishment of a secure environment in which to conduct the referendum. While the Indonesian government had primary responsibility, they were also obligated to neutrality. The United Nations set up a Commission on Peace and Stability that created a code of conduct for the parties to abide by before, during and after the referendum process, including disarmament of paramilitary groups. Under this agreement, the United Nations had the sole authority to determine if a peaceful environment existed in which to proceed with the vote, which it exercised by delaying the vote nearly three weeks in the hopes of achieving a more stable environment.

[95] The ballot question read: “Do you accept the proposed special autonomy ACCEPT for East Timor within the Unitary State of the Republic of Indonesia OR Do you reject the proposed special autonomy for East Timor leading to East Timor’s separation from Indonesia?”

[96] The Good Friday Agreement required that following question be put to the people of Northern Ireland: “Do you support the agreement reached in the multi-party talks on Northern Ireland and set out in Command Paper 3883?” Validation, Implementation, and Review Paragraph 2.

* * *

The Office of the Nagorno Karabakh Republic in the United States is based in Washington, DC and works with the U.S. government, academia and the public representing the official policies and interests of the Nagorno Karabakh Republic.

This material is distributed by the Office of the Nagorno Karabakh Republic in the USA on behalf of the Government of the Nagorno Karabakh Republic. The NKR Office is registered with the U.S. Government under the Foreign Agent Registration Act. Additional information is available at the Department of Justice, Washington, D.C.

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