Emerging Trends in International Law on Secession: Case of Kosovo

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1 Emerging Trends in International Law on Secession: Case of Kosovo Dissertation zur Erlangung des akademischen Grades doctor rerum politicarum (Dr. rer. pol.) durch die Fakultät für Staats- und Sozialwissenschaften der Universität der Bundeswehr München vorgelegt von Jelena Pifat

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3 ANGABEN IN DEN PFLICHT EXEMPLAREN DER DISSERTATION UNIVERSITÄT DER BUNDESWEHR MÜNCHEN Fakultät für Staats- und Sozialwissenschaften Thema der Dissertation: Emerging Trends in International Law on Secession: Case of Kosovo Verfasser: Jelena Pifat Promotionsausschuss: Vorsitzender: Univ. -Prof. Dr. Kathrin Groh 1. Berichterstatter: Univ. -Prof. Dr. Daniel-Erasmus Khan 2. Berichterstatter: Univ. -Prof. Dr. Stephan Stetter 3. Berichterstatter: Univ. -Prof. Dr. Carlo Masala 4. Berichterstatter: apl. -Prof. Dr. Franz Kohout Tag der Prüfung: Mit der Promotion erlangter akademischer Grad: Doktor der Staats- und Sozialwissenschaften (Dr. rer. pol.) Neubiberg, den

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5 Table of Contents Acknowledgements... iii Abbreviations... v Introduction... 1 Part I: International Law on Secession Introduction Wilsonian concept of self-determination and the Aaland Islands Dispute The 1960 Declaration on the Granting of Independence to Colonial Territories and Peoples The 1966 International Covenants on Human Rights The 1970 Declaration on Friendly Relations The Algiers Declaration, the Helsinki Declaration and other relevant documents The Advisory Opinion of the Supreme Court of Canada What type of norm is self-determination? Internal and external dimension of self-determination Further remarks on remedial secession in international law Who are the people? Minorities as peoples the return of the Wilsonian concept Defining minorities and their protection The meaning given to the self (what does the term peoples mean) Question of Statehood Sovereignty Recognition of states Uti possidetis New application of uti possidetis Yugoslavia Conclusion i

6 Part II: Political Theories on Secession Introduction Associative (choice) theories Ascriptivist (nationalist) theories Remedial right theory Conclusion Part III: Case of Kosovo Introduction History Humanitarian intervention NATO s 1999 Operation Allied Force Resolution 1244 and the Kumanovo Agreement The UN interim administration Independence the end of the road? Is Kosovo an example of remedial secession? The ICJ s Advisory Opinion on Kosovo Kosovo a unique case or a test case? Proposal for the solution of the Kosovo problem Conclusion Précis Appendix I: Chronology Appendix II: Maps Appendix III: Select Documents Bibliography ii

7 Acknowledgements First of all, I am profoundly grateful to my doctoral supervisor Prof. Dr. jur. Daniel-Erasmus Khan for an expert guidance, valuable advice and mentorship. I give my heartfelt thanks to Ass. jur. Donald Riznik for his sincere help and insight. I would also like to thank Christian Driessen for giving me constant support and being a true friend. Above all, I thank my parents Zvonimir and Gordana and my sister Dragana. They have always provided endless love and encouragement. Finally, I would like to express my deepest gratitude to Vanja for great patience and support at all times. I could not have done it without you. Jelena Pifat October 2012 iii

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9 Abbreviations AAK AI CERD CSCE EC EU EULEX FPRY FRY GA GAOR HRC HRW ICG ICJ ICJ Reports ICO ICR ICRC ICTY IDP ILC ILM ILO ILR IMF LDK LPK Aleanca për Ardhmërinë e Kosovës, Alliance for the Future of Kosovo Amnesty International Committee on the Elimination of All Forms of Racial Discrimination Conference on Security and Cooperation in Europe European Community European Union European Union Rule of Law Mission in Kosovo Federal People s Republic of Yugoslavia Federal Republic of Yugoslavia General Assembly of the United Nations General Assembly Official Records Human Rights Committee Human Rights Watch International Crisis Group International Court of Justice International Court of Justice Reports of Judgements, Advisory Opinions and Orders International Civilian Office International Civilian Representative International Committee of the Red Cross International Criminal Tribunal for the Former Yugoslavia Internally displaced person International Law Commission International Legal Materials International Labour Organization International Law Reports International Monetary Fund Lidhja Demokratike e Kosovës, Democratic League of Kosovo Lëvizja Popullore e Kosovës, People s Movement of Kosovo v

10 KFOR KLA KPC KPS KVM NAC NATO NGO OAS OAU OSCE PDK PISG SAA SC SCOR SCR SG SFRY SRSG UCK UDB UDI UN UN Charter UNESCO UNHCR UNICEF UNMIK UNOSEK UNSCR UNTS USA Kosovo Force Kosovo Liberation Army Kosovo Protection Corps Kosovo Police Service Kosovo Verification Mission North Atlantic Council North Atlantic Treaty Organization Non-governmental organization Organization of American States Organization of African Unity Organization for Security and Cooperation in Europe Partia Demokratike e Kosovës, Democratic Party of Kosovo Provisional Institutions of Self-Government Stabilization and Association Agreement Security Council of the United Nations Security Council Official Records Supreme Court Reports Secretary-General of the United Nations Socialist Federal Republic of Yugoslavia Special Representative of the Secretary-General Ushtria Çlirimtare e Kosovës, Kosovo Liberation Army Uprava Drzavne Bezbednosti, Yugoslavia s State Security Administration Unilateral declaration of independence United Nations Charter of the United Nations United Nations Educational, Scientific and Cultural Organization United Nations High Commissioner for Refugees United Nations Children's Fund United Nations Interim Administration Mission in Kosovo Office of the Special Envoy of the Secretary-General of the United Nations for the Future Status Process for Kosovo United Nations Security Council resolution United Nations Treaty Series United States of America vi

11 Introduction

12 Many modern conflicts are caused by some entity s aspiration to be independent, and its refusal to accept that there may be a solution to the conflict other than separate statehood. Independent statehood is portrayed as irrefutably superior option to forming a part of another state, even if the second option entails a substantial autonomy for the separatist group in question. Because of secessionist aspirations and struggles, it cannot be said that the distribution of earth s surface has come to its historical end. Although the existing states cover every corner of the world, the distribution of territory between them is hardly final. The key problem is that national selfdetermination is seen as a zero sum game, and the abuse of the self-determination concept by the insurgents around the globe causes fear of the world of two thousand states. Self-determination has Janus-like nature; 1 it is a paradoxical concept, at the same time associated with values of democracy and anarchy and ethno-national chauvinism. Gudmundur Alfredsson makes a humorous, but nonetheless true remark about the contemporary notion of self-determination: the right of self-determination provides an attractive heading with great popular appeal for very understandable reasons. Self-determination claims are being made by an ever-growing number of groups; it has become like a large umbrella which can give shelter to everybody s claims. Newcomers to the self-determination fan-club even include women s groups although they are hopefully talking about the internal rather than the external aspects. 2 The development of international relations in the post-cold War world was marked by the resurgence of ethnic passions and conflicts, which were followed by demands for selfdetermination. Historical defeat of socialism and communist ideology in Europe led to an overemphasis of liberal values in the societies caught in the struggles of transition. While the victory of liberalism led to the raising of the individual self on a pedestal, economic and political integration of Europe progresses by building federal supra-national structures which erode the concept of state sovereignty. Parallel to these new forms of integration and interdependency are the processes of retribalization and strengthening of particularistic identities. A shift of emphasis from the external dimension of self-determination to the right to democratic governance proclaimed by scholars coexists with inextinguishable fires of nationalistic 1 Cassese, Antonio (1995): Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, Cambridge, p Alfredsson, Gudmundur (1993): The Right of Self-Determination and Indigenous Peoples, in Tomuschat, Christian (ed.): Modern Law of Self-Determination, Martinus Nijhoff Publishers, Dordrecht, p. 53 2

13 resurgence. According to Thomas Franck, since the beginning of the new era after the Cold War, a new political context appears postmodern tribalism. It is an environment conductive to the break-up of sovereign states. It promotes the transfer of defined parts of the populations and territories of existing multinational or multicultural states in order to constitute new uninational and unicultural that is, postmodern tribal states. It asserts a political, moral, historicallydeterminist and legal claim to support this agenda. The legal claim it espouses is framed in terms of a well-established existing right, perhaps even a preemptory norm: that of selfdetermination. 3 Attempts of secession by minority groups represent an important feature of the postmodern world, and expressions like retribalization, fragmentation, postmodern tribalism or balkanization depict the present-day nightmare of politicians, international lawyers and scholars. None of the multicultural structures today is immune to these modern surges of nationalism, which occur with no regard to the democratic or autocratic nature of the system. Violence that is often associated with secessionist movements is probably the most stigmatized aspect of these undertakings, but there is no denying of the fact that as long as groups feel that they are being oppressed, some of them will fight to liberate themselves and gain independence. This shows that self-determination remains one of the most compelling forces and ideas in the international community, which cannot be ignored because of the complexity and controversy of these issues. The main objection to recognizing a right to secession is, of course, that it disrupts and threatens the international order, and can lead to a spiral of conflicts by encouraging other secessionist movements (the anarchy argument). As Will Kymlicka points out, international law should define conditions under which a group has a right to secession, but that is not enough. This problem is not confined to the Third World - even in prosperous liberal states, such as Belgium or Canada, the threat of secession has arisen, and it exists in both democracies and military dictatorships, in both prosperous and impoverished countries. It will remain an ever-present threat unless we learn to accommodate ethnocultural diversity, because minority groups will 3 Franck, Thomas (1993): Postmodern Tribalism and the Right to Secession, in Brölmann, Lefeber and Zieck (ed.): Peoples and Minorities in International Law, Martinus Nijhoff Publishers, Dordrecht, p. 4 3

14 contemplate secession, as long as they feel that their interests cannot be accommodated within existing states. 4 Since secession is often associated with destabilization, success of secessionist claims tends to depend on the measure of disruption that the international community is ready to endure. While it is theoretically justifiable to focus on secession as it is the most important mode of implementing the right of self-determination, the same notion can be seen as a reason for states to reject the right of self-determination for minorities in their territory. Another factor that may have a great effect on credibility and support for the secessionist claim is the type of government in the state they wish to secede from. If that government is repressive, there are higher chances for support from the international community than if that government is democratic, even if the risk of destabilization is greater. There are other considerations that can discourage the international community from tolerating secession, besides the risks of disrupting national unity and stability of entire regions. The main one is the use of violence and the denial or deterioration of human rights and freedoms, which is often followed by degeneration of democratic institutions. In such cases, allegations of human rights violations and terrorism become political tools and viable solutions to the conflict are harder to find. Thus Hurst Hannum states that indiscriminate repression by government security forces and politically motivated killings by opponents may discourage moderate or interim solutions which might otherwise be possible in the middle stages of an increasingly violent conflict. 5 It is safe to say that the past two decades were the age of secession. Many ethnic groups have claimed the right to secede, and their independence results in the disruption of the unity of a state which they no longer regard as their sovereign. It is increasingly difficult to enumerate all of the new secessionist movements that emerged since the end of the Cold War, besides the lingering ones like Cyprus or Tibet. During the Cold War the superpowers insisted on the stability of boundaries, but since 1991, several multinational states have disintegrated, and as the case of Balkan shows, that process is yet to be finished. In the 1990s secessionist movements gained 4 Kymlicka, Will (1998): Is Federalism a Viable Alternative to Secession?, in Lehning, Percy (ed.): Theories of Secession, Routledge, London and New York, p Hannum, Hurst (1990): Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights, University of Pennsylvania Press, Philadelphia, p. 12 4

15 thrust not only in unstable regions of Eastern Europe and in the Third World, but also in politically stable countries like Canada or Spain. It is the dark side of self-determination that is often accused of being able to destroy and dehumanize, to create fresh complexities and oppositions, new minorities, and has the potential to produce new forms of illiberalism: fanatical fundamentalisms, purities of race and tribe leading at worst to genocidal policies of so-called ethnic cleansing a practice which violates the most fundamental principles of international human rights. 6 The words of Friedrich Engels about the fate of minority cultures under the heavy boot of the predominant nationalist ideology are still current: there is no country in Europe which does not have in some corner or other one or several fragments of peoples, the remnants of a former population that was suppressed and held in bondage by the nation which later became the main vehicle of historical development. These relicts of nations, mercilessly trampled down by the passage of history, as Hegel expressed it, this ethnic trash always became fanatical standard bearers of counterrevolution and remain so until their complete extirpation or loss of their national character, just as their whole existence in general is itself a protest against a great historical revolution. 7 Resurgence of nationalism and ethnocentrism in many countries today proves that fundamentally little has changed in this aspect since the 19 th century. Rights of minorities and indigenous peoples, as well as self-determination of peoples seem to be stuck on the agenda of international community exactly for this reason. On the one hand, it is a fact that too many ethnic and minority groups suffer from discrimination and oppression, but on the other hand, it is questionable whether independent statehood can solve all their problems. Most secessionist conflicts are fueled by nationalism, and ethnicity is a central notion in these struggles where usually one nation - one state represents the basic mantra of the separatists. The disruptive effects of nationalism and tribalism seriously endanger multinational states, and popular versions of self-determination that often stem from political philosophy can, and often do, enhance this disruption. 6 Thornberry, Patrick (1993): The Democratic or Internal Aspect of Self-Determination with Some Remarks to Federalism, in Tomuschat, Christian (ed.): Modern Law of Self-Determination, p Engels, Friedrich (1849): Hungary and Panslavism, reprinted in full in Marx and Engels: The Russian Menace to Europe, as quoted in Peter Leuprecht (2001): Minority Rights Revisited: New Glimpses of an Old Issue, in Alston, Philip (ed.): People s Rights, Oxford University Press, Oxford, p

16 Many authors maintain the traditional view that secession is a political event, outside the realm of law. 8 Courts do not regulate this question; it is a state of interregnum decided by political forces. If successful, secession means that the transfer of sovereign power to a new political authority has occurred. Although territorial integrity remains one of the fundamental values of the international system and although secession is considered principally as political event where power plays an important role, we are witnessing a gradual extension of international legal regulation to that area. It is a necessity, since it is clear that changes in international arena are so overwhelming that the existing legal order has questionable capacity to deal with the new developments. The development of concepts like self-determination, ius cogens and erga omnes obligations at the end of the 1960s and the 1970s certainly represents a substantial limitation on the operation of the principle of the effectiveness, and that may be why it is difficult to find many subsequent references to it. 9 Simply, cluster of jus cogens norms and the fact that it creates obligations erga omnes proves that there are certain values that are above every state and its sovereignty. Political right to secede is no longer completely independent of legal regulation. There is a steady evolution of standards for the recognition and legitimacy of newborn states which also erode state sovereignty (in the United Nations declarations and resolutions, international conventions and programs of action, as well as in the opinions of judges at international legal bodies such as the International Court of Justice and in the vast amount of literature by scholars and international lawyers). This study is organized in the following way. As the title says, the main task is to examine emerging trends concerning secession in international law. Accordingly, this matter should be analyzed not only from the perspective of international law de lege lata, but also from the perspective of the contemporary political theories of secession, which tend to offer de lege ferenda approach to the subject matter. In that respect, this study will focus on the case of 8 Duursma claims that a right to secession as such does not exist, but secession is inherent in the right of selfdetermination: contrary to what some distinguished writers have maintained, international State practice does accept a right of secession. Secession is inherent in the right of self-determination. It is not prohibited by international law to seek secession if one constitutes a people and/or fraction of a people and if in addition one inhabits a certain territory delimited by international and/or internal administrative borders. The latter condition is reflected by the principle of uti possidetis juris. Duursma, Jorri (1996): Fragmentation and the International Relations of Micro-States, Cambridge University Press, Cambridge, p Milano, Enrico (2006): Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy, Martinus Nijhoff Publishers, Leiden, p. 25 6

17 Kosovo, as potential landmark case in this area of law. This concluding part should also elucidate potential consequences which independent statehood of Kosovo might have for international relations. Key issues that demand inquiry, organized by aforementioned aspects of the core problem are as follows: 1. Legal framework self-determination Legal regime on secession can be analyzed only in a broader context of law on selfdetermination, so it is necessary in the first part of the study to put forward the key features of the present state and developments in that field. This requires a historical overview of the law on self-determination since World War II via analysis of the relevant legal instruments in which the principle and rules on self-determination are stipulated. After that we need to, following Antonio Cassese s lead, pinpoint the emerging trends and new incentives in the law on self-determination. The most important of them, for the case we are set to analyze, is the link between internal and external self-determination with the focus on cases of extreme oppression where secession can emerge as remedial right, and potential developments in the area of self-determination of minorities. 2. Political theories on secession The second part is focused on the theoretical approach to secession, primarily Allen Buchanan s theory as the most relevant in the field. The greatest advantage of remedial right theory, in comparison to the other two main theories - plebiscitary and national selfdetermination, is that it is more compatible with the aforementioned emerging trends in international law on secession. Thus, the latter theories should be only outlined for the needs of comparison and analysis of the case study. Besides trying to assess the legitimacy of disputed cases of secession according to these theories, another particularly sensitive question deserves attention the treatment of the problem of orphans of secession or trapped minorities in these theories. 3. History and assessment of the case of Kosovo The last part of the study concentrates on this case of secession which already affects the reality of international relations and promises to affect international law as well. Events in 7

18 this region should not be analyzed only because they are contemporary, but also because they caused interesting debates and profound divisions among scholars. Here we can try to determine possible phases of secession, preconditions, most relevant factors, differentia specifica of the case, and most importantly, whether international legal principles and rules played any part in the political process. The final part of the study is projected to be the synthesis of previous parts, with the task to pinpoint new trends and incentives in international relations aroused by this case of secession and partially anticipated in international law and political theories. We will examine the role of the concept of remedial secession in this case, then challenge the unique case thesis, and in conclusion the main consequences of the Kosovo episode, including its effects on the situation in South Ossetia and Abkhazia, are investigated from the international relations perspective in order to determine whether the pessimistic vision of endless fragmentation, conflicts and microstates is coming to life or we are witnessing a new drive toward positive changes in international law and international relations that show greater respect for freedom and wishes of underprivileged minorities. This subject is not only timely, as it is focused on contemporary and intricate problems that the international system has to confront, but also has relevance to theoretical currents. This is why main theoretical debates in the field and alternatives to the approach chosen here are presented and tested, besides offering some fresh ideas and analysis of new events that have the advantages, but also the faults that an ongoing conflict generates. This is an interdisciplinary study embedded in the broader framework of liberal institutionalism that draws on empirical and theoretical investigations in the aforementioned fields of social scientific research. Core findings derive from the case studies analysis, analysis of theoretical findings and official documents. There are also certain inherent limitations to the study of recent events, such as the lack of important official documents that can shed further light on circumstances, but many of them will probably not be available to the public in the near future if at all. 8

19 Part I International Law on Secession

20 The contemporary has no perspective; everything is in the foreground and seems the same size. Little matters loom big, and great matters are sometimes missed because their outlines cannot be seen. Barbara Tuchman, Practicing History (1981) 1 Introduction Self-determination and secession are among the most frequently (ab)used and among the most controversial terms in international law and international relations during the last few decades. Despite the frequency of usage and great importance of these issues, not to mention considerable literature dealing with these matters, a general confusion about the meaning and definition of these concepts still exists. However, this study is not an attempt to clarify and define these concepts, but an endeavor to pinpoint the most relevant historical points and documents for the modern notion of self-determination in international law, as well as the emerging trends in the field, especially regarding the particular case study of Kosovo. Proliferation of movements for independence and emergence of new states after the Cold War ended has created a new interest and fresh perspectives in the law on self-determination, mainly concerning the right to secession. However, in Eastern and Southern Europe nationalist fervor continues to linger, and reasons for the upsurge and durability of secessionist sentiments could 10

21 still contribute to significant destabilization. Cass Sunstein detects five basic categories of reasons why a sub-unit of a country might want to secede infringement of civil liberties, economic self-interest, economic exploitation, the injustice of original acquisition and claims of cultural and ethnic integrity. 10 All of these reasons have played a prominent role in Eastern and Southern Europe. Perhaps another reason for this resurgence of nationalism during the last two decades can be found they had all been authoritarian societies, and after democratization and transition, ethnic minorities got freedoms and rights which enabled them to express themselves. States, as the primary subjects of international law, construct the international order with the purpose of regulating relations between themselves and other subjects of international law. Karen Knop criticizes limited possibilities of participation and representational practices of groups that are likely to claim self-determination. While self-determination thus involves speaking about and to nations, peoples and minorities, it has rarely involved speaking with them Hence, although people may have a right of self-determination, they have in fact been largely excluded from participation in the interpretation and development of the right. 11 On the other hand, the importance of states is confirmed by ethnic groups striving for independent statehood. This obsession with territory leads these groups to believe that once they possess an exclusive authority over a territory, era of conflicts will come to an end, and that prevents them from seeking a compromise, a solution within the existing state structures. Even if they do achieve independent statehood, it often turns out that functioning of the new state is burdened with many problems, and that most difficulties and troubles do not magically disappear (as the situation in Kosovo confirms). Increasing frequency of upheavals within states in which self-determination rhetoric is employed leads to problems involving colloquial usage of the term self-determination and of related notions such as liberation, emancipation, or freedom from oppression and provides for an emotional discharge prone to manipulation. The concepts of self-determination and secession proved to be very vital and relevant, despite advice from some scholars that they should be 10 Sunstein, Cass (1994): Approaching Democracy: A New Legal Order for Eastern Europe Constitutionalism and Secession, in Brown, Chris (ed.): Political Restructuring in Europe: Ethical Perspectives, Routledge, London and New York, p Knop, Karen (2002): Diversity and Self-Determination in International Law, Cambridge University Press, Cambridge, p. 8 11

22 discarded because of the controversies and contradictions that surround these terms. 12 Ethnic groups around the world are demanding separation from their mother states, and in the struggle for statehood, they often invoke the right to self-determination of peoples. Precisely these ethnic groups and minorities are central to the discussion concerning subjects of self-determination. Although these groups claim that they are entitled to secede, by being a people and forming a majority on a territory they wish to separate from the mother state, until recently the international community has unequivocally rejected rights to external self-determination for these groups and has supported the territorial integrity of the existing states. However, many states digressed from this practice when they decided to recognize Kosovo s statehood, after its unilateral declaration of independence on the 17 th of February For this reason, the Kosovo case makes these issues even timelier, as it has enduring characteristics that allow pursuing of questions about selfdetermination in law, philosophy and politics. Self-determination came to denote different things in the post-colonial world, and these different meanings need to be examined. 13 However, the description of the entire progress of the idea of self-determination in the course of time is not the goal of this study. Historical perspective presented in the following chapters has one main objective to track the process that led to modern claims of self-determination. The reason to start with a brief history of the concept is 12 For example, Jack Donnelly writes: what is one to conclude? Is there an internationally recognized collective human right of peoples to self-determination? It s hard to say. Maybe. Sort of. Not exactly. Therefore, I propose to set this right aside. Donnelly, Jack (1993): Third Generation Rights, in Brölmann, Lefeber and Zieck (ed.): Peoples and Minorities in International Law, p Halperin and Scheffer, for instance, distinguish among several types of claims and categories for selfdetermination. First is anti-colonial self-determination that is considered a largely historical phenomenon, although the potential for such claims may still exist. Second is sub-state self-determination as the attempt of a group to break off or to achieve a greater degree of political or cultural autonomy within the existing state. Third is trans-state selfdetermination that involves concentrated grouping of a people in more than one existing state, such as the Kurds or Armenians in Nagorno-Karabakh and is often called an irredentist claim. Fourth is the self-determination of dispersed peoples where peoples are intermixed throughout the same territory, and that distinguishes these claims from claims involving a geographically concentrated people, so the possible response here is to develop representative and democratic government. The next category is indigenous self-determination that can apply to claims of groups with distinct ethnicity and long historical continuity and may pose a special challenge since they can be geographically concentrated, dispersed throughout an area or cut across international boundaries. In any case, handling them requires greater sensitivity to political culture and traditions. The last category is representative selfdetermination which refers to a situation when the population of an existing state seeks to change its political structure in favor of a more representative and democratic structure. This actually describes internal selfdetermination. The authors conclude that a particular self-determination movement may fit into more than one category. Halperin and Scheffer with Small (1992): Self-Determination in the New World Order, Carnegie Endowment of International Peace, Washington, D.C., p

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