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Kosovo: A Precedent? The Declaration of Independence, The Advisory Opinion and Implications For Statehood, Self-Determination and Minority Rights
Kosovo: A Precedent? The Declaration of Independence, The Advisory Opinion and Implications For Statehood, Self-Determination and Minority Rights
Kosovo: A Precedent? The Declaration of Independence, The Advisory Opinion and Implications For Statehood, Self-Determination and Minority Rights
Kosovo: A Precedent?
Edited by
James Summers
LEIDEN BOSTON
2011
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Dedicated to the memory of Kaiyan Homi Kaikobad
Professor of International Law, University of Brunel (1950-2010).
Table of Contents
Editors Preface ix
List of Abbreviations xv
Part I Introduction 1
Chapter 10 The Kosovo Question and Uti Possidetis: The Potential for a
Negotiated Settlement 303
Stephen Allen And Edward Guntrip
Index 445
Editors Preface
On 17 February 2008 the authorities in Kosovo (how they are characterised is a mat-
ter of legal debate) issued a Declaration of Independence. In doing so, they not only
added another dimension to a struggle which had been going on for a number of years
about Kosovos status, but also raised important legal questions about the nature of in-
ternational territorial administration, statehood, self-determination and the rights of
minorities. The Declaration did not resolve this disagreement. Many states recognised
Kosovo as an independent state, but most did not. Instead, the issue was referred to
the International Court of Justice for an advisory opinion. On 22 July 2010 the Inter-
national Court delivered its opinion, which has been criticised for what it did not say
(about secession) and what it did (its characterisation of the authors of the declaration).
Nonetheless, the Opinion and the often extensive submissions of interested
states provide considerable insight into a disputed area of international law: rais-
ing debates on authority in an international territorial administration, remedial se-
cession, the dimensions of self-determination and the break-up of states. This dis-
pute continues. The Opinion has not had a dramatic eect on the number of states
recognising Kosovo, which on the 18 November 2010 was 72 UN member states. The
Kosovo issue remains one that may well take years to resolve.
This book draws from papers presented at the conference held at the University of
Lancaster, The Kosovo Precedent: Implications for Statehood, Self-Determination
and Minority Rights on 28 March 2009. My thanks go to all those who attended
and presented and, in particular, to Sigrun Skogly, Steven Wheatley, Gaetano Pen-
tassuglia, David Milman and Ashley Jennings. I would also like to thank Lancaster
University Law School and the Faculty of Arts and Social Sciences at Lancaster Uni-
versity for their support with the conference.
With sadness I must also write that Professor Kaiyan Kaikobad, who presented a
paper, Another Frozen Conict: Kosovos Unilateral Declaration and International
Law, at the Lancaster Conference, passed away in July 2010 after a short illness. His
uncompleted draft has been nalised by Colin Warbrick and my thanks go to Colin
and Kaiyans wife Dhun for their assistance with his chapter. This book is dedicated
to Kaiyans memory.
James Summers
Lancaster 2010
Notes on the Contributors
Dr. STEPHEN ALLEN has been a Lecturer in Law at Brunel University since 2001.
His main research interests include the areas of statehood, territoriality, self-deter-
mination and the rights of indigenous peoples. He has published widely in these
areas, including: Title to Territory in International Law: A Temporal Analysis (2003)
(with Joshua Castellino). More recently, he has published a series of articles on the
rights of the Chagossian people in international law and he acted as a consultant in
the Bancoult litigation in the English Courts. He is joint editor (with Alexandra Xan-
thaki) of Reections on the United Nations Declaration on the Rights of Indigenous
Peoples and International Law (Oxford: Hart Publishing, 2010).
Dr. MORAG GOODWIN is a Lecturer at the Tilburg Institute for Law, Technology
and Society at the School of Law, University of Tilburg. She is currently charged with
establishing a new research line within Law and Development, with a specic focus
on technology and the regulation of technology in relation to development issues.
tised as a solicitor in both Western Australia and London. He holds a B.Sc and LL.B
(Hons) from the University of Western Australia and an LL.M in international law
from the University of Cambridge.
Dr. MIODRAG JOVANOVI received his LL.M and PhD from the Faculty of Law,
University of Belgrade, where he presently works as an ssociate Professor in the
Introduction to Jurisprudence. His academic interest is in the political theory of
multiculturalism, federalism, legal theory of collective rights, as well as in the prob-
lems of the European identity and the political and legal structure of the EU. He has
published more than forty articles and essays in Serbian on legal theory and political
philosophy. He has also published a number of articles and book chapters in inter-
national journals and edited volumes. His internationally published books include
Constitutionalizing Secession in Federalized States: A Procedural Approach (Eleven:
Utrecht, 2007); (with Slobodan Samardi) Federalism and Decentralisation in East-
ern Europe: Between Transition and Secession, (Zurich and Vienna: Institut du F-
dralisme, Fribourg/LIT Verlag, 2007). He has co-edited two books, Sovereignty and
Diversity (with Kristin Henrard), (Utrecht: Eleven, 2008), and Human Rights Today
60 Years of the Universal Declaration (with Ivana Krstic), (Utrecht: Eleven, 2010).
He is currently working on the book Collective Rights A Legal Theory (Cambridge:
Cambridge University Press, forthcoming in 2011).
PROFESSOR KAIYAN HOMI KAIKOBAD who sadly passed away in July 2010 was
Professor of International Law and Deputy Head (Operations) at Brunel University.
He was formerly a legal adviser to the Ministry of State for Legal Aairs of the Gov-
ernment of Bahrain. A member of the Pakistan High Court Bar, he had been con-
sulted by a number of governmental entities and professional societies for advice
on various issues of international law, in particular international disputes and self
determination. He was admitted as Fellow of the Royal Geographical Society (FRGS)
in January 2007. Professor Kaikobad specialised in title to territory, both land and
maritime. His extensive publications included the monographs: The Shatt-al-Arab
Boundary Question: A Legal Reappraisal (Oxford: Oxford University Press, 1988);
The International Court of Justice and Judicial Review: A Study of the Courts Pow-
ers with Respect to Judgments of the ILO and UN Administrative Tribunals (Leiden:
Kluwer, 2000); and Interpretation and Revision of International Boundary Decisions
(Cambridge: Cambridge University Press, 2007).
Dr. HELEN QUANE is a Senior Lecturer at the University of Swansea. Her research
interests include human rights and international law.
NGO Article 42 of the Constitution, which was the rst Georgian organisation to
successfully support two complaints against Georgia in the European Court of Hu-
man Rights. He has been involved in applications regarding human rights violations
in the breakaway regions of Georgia and has assisted with the preparation of cases
led with the Court arising from the conict in South Ossetia. Since January 2009
he has been engaged in doctoral studies at the University of Essex on the impact of
international involvement in revising the concept of self-determination.
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Chapter 1 Kosovo: From Yugoslav Province to
Disputed Independence
JAMES SUMMERS
1 Introduction
For such a small territory, Kosovo1 has been, and remains, remarkably divisive. For-
merly an autonomous province of Serbia in the Socialist Federation of Yugoslavia,
Kosovo played a central role in the federations break up in 1991. In 1999 it was the
subject of military intervention by NATO which could be characterised alternatively
as illegal or just, or indeed both. From 1999 it was administered by the United
Nations, formally within the sovereignty of the rump Yugoslavia of Serbia and Mon-
tenegro. However, following fundamental disagreement between UN members on
its future, it declared independence on 17 February 2008. The Declaration split UN
members. Currently, over a third of member states (72) consider Kosovo the worlds
newest nation, but about two-thirds dont. The Declaration was also the subject of
an Advisory Opinion by the International Court of Justice, requested by Serbia, and
delivered on 22 July 2010. The Court found that it did not to violate international law.
Nonetheless, the opinion has not, so far, led to a signicant shift in the position of
states.
Kosovo is a small landlocked region of 10,887 sq. km. The bulk of the territory
is a relatively at elevated plain, bordered by mountains, the highest of which rises
to 2656 m. Serbia lies to the north and east; Albania, which has close ethnic ties
to the majority of the population, to the south-west; and Macedonia and Monte-
negro, which have signicant Albanian minorities, lie to the south-east and west,
respectively. Kosovos present population is 2.1 million (2006). Its ethnic compo-
sition has often shifted with its violent history. Today it is predominantly ethnic
Albanian (92) and Muslim. Serbs form the largest minority (5.3), with smaller
populations of Roma (1.1), Turks (0.4) and other communities (1.2), including
This is the name used in English. In Albanian it is known as Kosova or Kosov. Serbs
refer to the territory as Kosovo and Metohija ( ). Kosovo derives
from Serbian. Nonetheless, this is the internationally used designation and it is used
here for the sake of clarity and not to endorse any political position. The same applies to
place names in Kosovo.
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 3-51.
4 I. Introduction
Bosniacs, Gorani, Askalis and Egyptians. Prior to the break up of Yugoslavia, its
population was 1.58 million (1981), of whom 77.4 were Albanians and 13.2 Serbs.2
The Albanian identity itself, which is a primarily linguistic concept of nationhood, is
not homogeneous and contains a signicant dialectal dierence between the Gheg
dialect spoken in Kosovo (and northern Albania) and Tosk spoken in Albania and
the basis for literary Albanian.3
Nonetheless, a dry description of Kosovos geography and ethnography does not
explain the passions which have shaped Kosovos recent history. The depth of those
feelings is vividly illustrated by this account from the Czech politician Thomas Ma-
saryk in 1915:
During the last war against the Turks I happened to be in Serbia, and a Serbian ocer
told me his experience on the battleeld. When at the head of his regiment of peasant
soldiers he reached the plain of Kosovo, the famous Field of the Blackbirds, a deathlike
silence seized the whole detachment; men and ocers, without any command, uncovered
their heads, crossed themselves, and each of them tried to tread softly, so as not to disturb
the eternal sleep of their heroic ancestors. (Here my friend, quite lost in the remembrance
of that great experience, unconsciously imitated their gait, and his voice fell to a whisper
as he recalled the silence of his soldiers). Many of the weatherbeaten faces were bedewed
with unconscious tears, as was my friends face while he spoke.4
This would not be the last time that tears were shed over Kosovo. The territory
is central to two competing ideas of nationhood. In its written statement to the
ICJ, Serbia characterised Kosovo as, part of the people of Serbia, with most of
its population forming an ethnically distinct minority within Serbia.5 Conversely,
the Kosovo authorities considered Kosovars a distinct people based on their ethnic
characteristics.6
Serbs look to Kosovo as central to their history: a cradle of their culture, reected
in monasteries and churches, and the battleeld on which in 1389, their history took
a decisive turn with defeat at the hands of the Ottomans and reduction to a vas-
Miranda Vickers, Between Serb and Albanian: A History of Kosovo (London: Hurst and
Co., ), xiii.
Noel Malcolm, Kosovo: A Short History (London: MacMillan, ), .
Modern Albanians have alternatively been connected to the ancient populations known
as the Illyrians or the Thracians in Roman times. The Illyrians lived in the western Bal-
kans and, correspondingly, the Illyrian theory is favoured by Albanians by giving them
a long historical connection to the region. The connections to these earlier populations,
though, remain obscure. See ibid. -.
See Zhidas Daskalovski, Towards an Integral Theory of Nationalism? Case-Study Kos-
ovo, International Journal of Minority and Group Rights (): -.
Misha Glenny, The Fall of Yugoslavia: The Third Balkan War (London: Penguin Books,
), ; Noel Malcolm, Bosnia: A Short History (London: MacMillan, ), ; Tim
Judah, Kosovo: What Everyone Needs to Know (Oxford: Oxford University Press, ),
-; Vickers, note above, -.
6 I. Introduction
Albanians were not one of the nations of Yugoslavia. Initially they were classed
as a national minority, but were subsequently reclassied in 1963 as a nationality,
along with Hungarians.19 Nationalities did not have a right to self-determination or
their own republics,20 though this distinction became blurred in the 1974 Constitu-
tion, which repeatedly referred to nations and nationalities having equal rights. The
theory behind the nation/nationality distinction was that Albanians and Hungar-
ians already had their own state outside Yugoslavia. However, politically it would
have been unacceptable to carve further republics out of Serbia, which had already
been reduced by the creation of the Macedonian Republic. Nonetheless, this distinc-
tion and the failure to gain a republic was seen by Albanians as discrimination, espe-
cially as they outnumbered some South Slav nations which had their own republics,
such as the Montenegrins and Macedonians.21
Ibid. .
V. Vujacic and V. Zaslavsky, Causes of the Disintegration of the USSR and Yugoslavia,
Telos (): ; Sabrina P. Ramet, Nationalism and Federalism in Yugoslavia, -
(Bloomington: Indiana University Press, ), ; Judah, note above, -.
Judah, note above, ; Vickers, note above, .
Meier, note above, -.
Vickers, note above, -; Judah, note above, -.
Ivo Goldstein, Croatia: A History (London: Hurst and Co., ), -; Vujacic and
Zaslavsky, note above, -; V. P. Gagnon Jr., Ethnic Nationalism and International
Conict: The Case of Serbia, in Nationalism and Ethnic Conict, eds. Michael E. Brown
et al. (Cambridge: MIT Press, ), -.
8 I. Introduction
the door to greater contact between Kosovos Albanians and Albania, with the lat-
ter having more cultural weight. Kosovos Albanian became standardised around
the Tosk dialect used in Albania. While the Communist Party in Kosovo remained
almost exclusively Serb and Montenegrin, the provinces expanding public institu-
tions were increasingly staed with Albanians. Previously dominant minorities now
began to complain about discrimination. Changing demographics driven by the Al-
banian birth rate, the highest in Europe, led to the increasing Albanianisation of
Kosovo, which in turn, attracted Albanian migrants from elsewhere in Yugoslavia
accelerating the process.25
Ocials in Kosovo, like those in the republics, pressed for greater powers. In the
case of Kosovo, the key demand was to be elevated to a republic. Nationalist dis-
content also ared in the province, with the university providing a focal point for
mobilisation. In 1968 student riots led to wider demonstrations in Kosovo and Mace-
donia, demanding a republic and the unication of Albanians within Yugoslavia.26
Nationalist unrest also occurred in the republics, especially Croatia in 1971, and Tito
responded with a purge. Nonetheless, the republics and autonomies continued to
build up powers,27 with Kosovos status further advancing with the 1974 Constitu-
tion, as well as the Albanian character of its administration. Minorities, in turn, felt
persecuted and many left the province.28
From the 1970s Tito presided over a state, whose weakened centre depended on
his own personal authority. In 1980 he died. With his death, central authority de-
volved to an eight member collective presidency, made up equally of representa-
tives of the six republics and two autonomies29 (a Kosovar was President from May
1986-May 1987).30 The system was supposed to hold the country together with its
multinational representation, but it was also weak, complex and institutionalised the
power of the republics and autonomies. The stage was set for a struggle between the
republics in which Kosovo was to play a central role.
Economically, Kosovo was the poorest region in Yugoslavia and the gap was wid-
ening. While it had signicant natural resources coal, chrome, lead and zinc
industrial development in the province had been focussed on their extraction for
industries in the republics rather than building its own industrial base. Growth in
the province was consumed by a high birth rate. The population remained largely
rural and poorly educated, with graduates facing dicult prospects. The unemploy-
ment rate was the highest in the Yugoslavia.31 In March 1981 student protests over
conditions at Pristina University escalated into riots, targeting Serbs, and demon-
strations in Kosovos main towns demanding a republic and Albanian unication.
In response, the army was sent to the province in a heavy-handed crackdown, which
left hundreds of Albanians dead. This left a legacy of radicalisation among some
Albanians and a heavy security presence in the province.32
The tensions in Kosovo provided rallying point for Serbian nationalism and this
was seized on by conservatives within the Serbian Communist Party, lead by Slo-
bodan Miloevi. Miloevi famously visited Kosovo in 1987 and told Serbs clash-
ing with the police: No one should dare to beat you.33 Using the Kosovo issue he
secured the leadership of the Serbian Communist Party in 1988. He then sought to
create a Serb-led centralised Yugoslavia, based on a Memorandum, drawn up by
academics in 1986 for Serb hegemony either through a recentralised Serb-dominated
state or a greater Serbia carved from the other republics.34
At the end of 1987 the Communist Party in Kosovo was purged and the local
police replaced, followed by the removal of the party leadership in Voivodina in Oc-
tober 1988 and a coup in Montenegro in January 1989. In March 1989 Serbia re-
established direct control over the autonomous provinces. Kosovos Assembly, sur-
rounded by police and tanks, endorsed the eective removal of its self-government.35
Legislation could now only be passed in Kosovo with prior approval from the Ser-
bian National Assembly and the province ocially reverted to its former title of
Kosovo and Metohija.36 With control of two republics and two autonomies, and
thus four out of the eight seats in the collective presidency,37 Miloevi had gone a
long way towards the rst option in the Memorandum. On 28 June 1989, when ad-
dressing a huge crowd in Kosovo, he warned of battles ahead, possibly armed ones, it
was a threat that the leaders of the other republics took very seriously.
Miloevis attempt to create a centralised Serb-controlled state met with resis-
tance from the other republics, in particular, Slovenia, which pressed for Yugoslavia
to be restructured as a looser, more exible federation.38 Conict between the two
caused the collapse of the Yugoslav Communist Party in January 1990, and following
free elections in April the gap widened as nationalists took power in Slovenia and
Croatia.39 Slovenia and Croatia pressed for a confederal Yugoslavia, while Miloevi
threatened that if this were to happen Serbias borders with the other republics
would be an open question. This was not an idle threat. Serbian authorities actively
sought to promote unrest amongst the Serb minority in Croatia.40 Caught in the
middle were Macedonia and Bosnia-Herzegovina. Macedonia supported maintain-
ing the federation, as did Bosnia, which by geography and demography risked being
torn apart in a conict between Serbia and Croatia.41
In Kosovo the goals of the Albanian leadership were to maintain autonomy and
achieve the status of a republic. Correspondingly, on 2 July Albanian members of
Kosovos Assembly declared Kosovo a republic outside Serbia.42 In response, Serbia
on 5 July dissolved the Kosovos Assembly and Executive.43
In December Slovenia strengthened its position in negotiations over the future
of Yugoslavia by securing overwhelming support for independence in a referendum.
The talks, however, remained deadlocked. Explicit international support for Yugo-
slavias territorial integrity emboldened Miloevi44 and negotiations collapsed in
May 1991 when Serbia and Montenegro refused to accept Stipe Mesi, a Croat, as
Yugoslav President.45 Slovenia moved for separation, joined by Croatia, declaring
their independence on 25 June.46 Macedonia and Bosnia, faced with the prospect of
remaining in a Serb-dominated rump, followed later in the year. Kosovo Albanians
also made a declaration of independence on 21 September, following an unocial
referendum in which independence was endorsed by voters by 99.87 on an 87.01
turnout.47 The Republic of Kosovo was recognised as a state by Albania on 22 Octo-
ber 1991, the only country to do so.48 However, in terms of statehood, Kosovo notably
lacked a government in control of its territory. While some republics, like Croatia,
and especially Bosnia, struggled to exercise authority in large parts of their territory,
the parallel institutions of the Kosovo Albanians could not seriously challenge Yu-
goslavias control over their territory.
Slovenia and Croatia did not gain international recognition. Instead, on the 27
August the EC (EU) organised a Peace Conference on Yugoslavia which aimed to
include representatives of the EC and its member states, the Yugoslav Federal Presi-
dency and government, and the presidents of the six republics, but not representa-
tives from the autonomies. Additionally, the EC established an arbitration commis-
sion, composed of the presidents of constitutional courts in France, Germany, Italy,
Spain and Belgium, dubbed the Badinter Commission after its president Robert
Badinter. The Commission was intended to deliver non-binding opinions on aspects
of the Yugoslav crisis.49 The republics were invited to submit requests for recogni-
tion, which Slovenia, Croatia, Bosnia-Herzegovina and Macedonia did.50 The rump
union of Serbia and Montenegro, known as the Federal Republic of Yugoslavia (FRY)
did not, considering itself to be the successor to the SFRY. On 22 December the
Kosovo leader Ibrahim Rugova wrote to the chairman of the peace conference to
request recognition for Kosovo as an independent state but this was refused.51
In the meantime, the Soviet Union dissolved on 8 December52 and following this,
on 16 December EC states produced a Declaration on Guidelines on the Recognition
on New States. This spelled out basic principles for the recognition of states based on
the Helsinki Final Act 1975 and Paris Charter 1990. It recognised self-determination,
but also emphasised the inviolability of existing frontiers.53 It also conrmed a policy
shift policy from seeking a political solution that maintained the territorial integrity
of Yugoslavia to a managed dissolution.54
The Badinter Commission in Opinion No. 1 characterised the break-up of Yugo-
slavia as a federal dissolution, in which the state had dissolved into its component
federal units.55 This characterisation might have been accurate for the Soviet Union,
where the principal federal units had agreed to terminate the federation, but in Yu-
goslavia, federal units had unilaterally declared independence and were forcibly re-
sisted by federal institutions: a process much more like secession.56 Nonetheless, the
federal dissolution designation had two important consequences. First, there was no
successor to Yugoslavia (SFRY). All the new states had to apply for recognition, in-
cluding the Federal Republic of Yugoslavia (FRY). This allowed greater international
leverage, ensuring that the new states complied with international obligations before
Sonia Lucarelli, Europe and the Breakup of Yugoslavia: A Political Failure in Search of a
Scholarly Explanation (The Hague: Kluwer, ), -.
See Dominic McGoldrick, Yugoslavia The Response of the International Community
and of International Law, Current Legal Problems (): -; Alain Pellet, The
Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Deter-
mination of Peoples, European Journal of International Law (): -.
Letter from Dr. Rugova to Lord Carrington, Peace Conference on Yugoslavia, De-
cember , in Weller, note above, ; Vickers, note above, .
Minsk Declaration, December , International Legal Materials (): -.
Declaration on the Guidelines on the Recognition of New States in Eastern Europe and
in the Soviet Union, International Legal Materials (): -.
Radan, note above, .
Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , Inter-
national Legal Materials (): , para. . See Martyn Rady, Self-Determination
and the Dissolution of Yugoslavia, Ethnic and Racial Studies (): .
Roland Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union,
European Journal of International Law (): ; Yehuda Z. Blum, UN Membership
of the New Yugoslavia: Continuity or Break? American Journal of International Law
(): .
12 I. Introduction
they could gain recognition. Second, it set clear limits on the political fragmentation
of Yugoslavia, devolving an entitlement to statehood to the republics but not beyond
that.
This republic-centred approach was strengthened by the application of uti pos-
sidetis, a principle which upheld established administrative frontiers upon indepen-
dence, and had been previously used in decolonisation in Latin America and Afri-
ca.57 However, this was in relation to colonial frontiers. The extension of the principle
to the dissolution of a federal state was somewhat novel. The Commission justied
this extension from the nding by the ICJ in the Burkina Faso/Mali Frontier Dispute
that uti possidetis was: a general principle, which is logically connected with the
phenomenon of obtaining independence, wherever it occurs.58
This innovative use of uti possidetis was not without controversy. The Interna-
tional Court in Burkina Faso/Mali had only referred to the principle in the con-
text of colonisation.59 The Commission also drew from other instruments, which
contained, a well-established principle of international law [that] the alteration of
existing frontiers or boundaries is incapable of producing any legal eect.60 In this
regard it cited the Helsinki Final Act 1975 and the Declaration on Friendly Relations,
GA Res. 2625 (XXV) 1970. Neither of these instruments specically referred to uti
possidetis, though they both contained the principle of the territorial integrity of
states, and in the Final Act, the inviolability of frontiers.61 Nonetheless, while these
principles had similarities to uti possidetis, they also performed a dierent function
in international law: preserving existing states within their borders. The signicance
of territorial integrity to Yugoslavia was to prevent the initial dissolution, rather than
to prescribe its form. The Commission also referred to article 5 of the Yugoslav Con-
stitution, which stipulated that the territories and boundaries of the republics could
only be altered with their consent. But, this applied within Yugoslavia as an existing
state.
This legal defence of the borders of the republics, notably clashed with a key
principle behind independence: the self-determination of peoples. In the Yugoslav
OAU Resolution on Border Disputes, Cairo Meeting - July . Article III, Organi-
sation of African Unity Charter . See also Article (b), African Union, Constitutive
Act .
Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , Inter-
national Legal Materials (): . Citing Burkina Faso/Mali Frontier Dispute.
[T]he principle of the intangibility of frontiers inherited from colonization is not
a special rule which pertains solely to one specic system of international law. It is a
general principle, which is logically connected with the phenomenon of obtaining in-
dependence, wherever it occurs. Its obvious purpose is to prevent fratricidal struggles
provoked by the challenging of frontiers following the withdrawal of the administering
power. Frontier Dispute (Burkina Faso v. Mali), ICJ , para. ( December).
Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , Inter-
national Legal Materials (): .
See Principles () and (), () and () and (d), GA Res. (XXV), UN Doc. A/
RES/ ( October ); Principles I, II, III, IV and VIII, Helsinki Final Act ,
International Legal Materials (): -.
Chapter I, James Summers Kosovo: From Yugoslav Province to Disputed Independence 13
Constitution self-determination was the right of nations, and while the republics
resembled nation-states, they did not necessarily coincide with the distribution of
those nations. Questioned by Serbia on whether the Serb population in Croatia and
Bosnia-Herzegovina had a right of self-determination, the Commission responded
that uti possidetis prevented changes to frontiers unless the states concerned agreed:
The Commission appeared to soften this rejection by holding out the possibility,
again not grounded in established international law, and subject to agreements by
the states, of a right of individuals to determine their own nationality based on self-
determination.63 Nonetheless, minority rights were applicable and found to have a
jus cogens character.64 The rights of populations within states also extended to au-
tonomy. In this regard, the Commission found that Croatia did not fully meet the
requirements for recognition by not including a provision for the special status of
minorities.65
However, a republic-based federal dissolution settlement required more than a
non-binding advisory commission to support it. The boundaries of the republics
were challenged by Serbs in Croatia, Serbs and Croats in Bosnia-Herzegovina and
ethnic Albanians in Kosovo. There was, though, a marked dierence between the
Kosovo independence movement and the Serb and Croat movements which were
supported militarily by the governments of those countries. Serb secessionists in
Croatia and Bosnia-Herzegovina, supported by the Serbian government and the re-
mains of the Federal Army, proclaimed independence as the Republic of Krajina and
the Republika Srpska, respectively. Better armed than the Croatian and Bosnian gov-
ernments, the Serb secessionists conquered territory in both republics, reinforced by
a process which became known as ethnic cleansing.
International involvement was initially restricted to an arms embargo on Yugosla-
via.66 In February 1992, a UN peacekeeping mission, UNPROFOR67 was established,68
Its leader, Ibrahim Rugova, a literary history expert, became the President of the
Republic of Kosovo.77
The parallel institutions were intended to advance Kosovo independence, but also
were a response to discriminatory policies by the Serbian government. Most Alba-
nians in any form of state employment had been dismissed, including doctors and
other health workers and school teachers. Albanians had restrictions on ownership
of property and were subject to arbitrary arrest. Serbianisation was introduced:
with the Albanian media suppressed, libraries emptied, museums closed and streets
renamed to resonate with Serbian nationalism. School teaching was in Serbo-Croat,
with Albanian literature and history virtually eliminated from the curriculum, and
Albanians barred from Pristina University. The authorities also sought to shift the
demographic balance, by not only creating conditions to make Albanians leave, but
also by settling Serb refugees from Croatia, and oering land to encourage migra-
tion. Nonetheless, few Serbs were interested in becoming part of a minority in this
impoverished region.78
The strategy of Rugova and the LDK was intended to prevent a conict which
would give a pretext for ethnic cleansing; to delegitimise Serbias rule by non-
participation and establish the Republic as an eective authority; and to bring in
international involvement.79 The strategy was initially successful, earning interna-
tional praise, and after attempts to destroy the Republic a degree of toleration from
Miloevi.80 The attraction was that Kosovo was contained. But this was as a miser-
able and unsustainable status quo not a political solution. Meanwhile, Rugovas suc-
cess in preventing a violent revolt, denied him the international intervention that he
hoped for. The policy of non-participation also helped maintain Miloevi in power,
depriving his opponents of a crucial block of votes in Yugoslav elections. Nor was
this unintended. Albanian politicians calculated that their independence agenda
needed a clear oppressor to struggle against.81
Other more radical Albanian organisations existed, notably the Kosovo Libera-
tion Army (KLA), or Ushtria Clirimtare e Kosoves (UCK). Formed in the early 1990s,
it was a mix of the descendents of rightist resistance ghters in World War Two and
left-wing Pristina University graduates cultivated by Albania.82 The KLA carried out
its rst armed attack in May 1993, killing two Serb police ocers, but for a long time
remained a small organisation without mass support.83
The Dayton Accords 199584 are seen as a watershed for nationalism in Kosovo.85
The Accords provided for a settlement for the conict in Bosnia-Herzegovina and
recognition of Yugoslavia (FRY) with Kosovo within its territory. The Security Coun-
cil subsequently lifted sanctions on Yugoslavia,86 though outer wall sanctions, on
membership in international organisations and assistance from international nan-
cial institutions, were maintained until it addressed a number of issues, including
the human rights situation in Kosovo.87 Nonetheless, a settlement for Kosovo was
deliberately excluded in the negotiations because of concerns of adding a further
layer of complexity and of alienating Miloevi, who was needed to pressure the
Bosnian Serb leadership.88 The lesson that Kosovo Albanians drew from Dayton was
stark. Non-violence had allowed states to ignore them, while the violent secession of
Republika Srpska had established, if not an independent state, then, at least, a highly
autonomous entity, enjoying self-government that they were denied. While the West
had ended the Bosnian conict by engagement with Miloevi, the eect in Kosovo
was to shift support to the radicals, laying the foundations for the next Balkan con-
ict. In spring 1997 the weapons for a mass insurrection became available when
the Albanian government collapsed in the wake of a nancial crisis. Government
armouries were looted, ooding the region with hundreds of thousands of illegal
weapons.89
Council passed Resolution 1160, which condemned the KLA as terrorists and called
on the Yugoslav government to enter into a dialogue with the Albanian leadership
to secure a political solution. The Council specied that, without prejudicing the
outcome, this should be based on a substantially greater autonomy and meaningful
self-administration for Kosovo within the territorial integrity of Yugoslavia.91
In July Serbian forces launched a counterattack and swiftly drove back the KLA,
and with them the Albanian population. By 3 August an estimated 200,000 ethnic
Albanians had been displaced.92 United States with the Contact Group began a pro-
cess of indirect negotiations under Chris Hill, the US Ambassador to Macedonia, in
which proposals for autonomy were presented to both sides. Security Council reso-
lutions called on the parties to engage in these negotiations.93 However, the process
had stalled by December and on Christmas Eve, Yugoslav forces were engaged in
another oensive against Albanians. In January the bodies of 45 individuals, appar-
ently executed by Serbian security forces were discovered in what became known as
the Racak Massacre.94
In January 1999, representatives of the Contact Group called for negotiations. On
29 January they summoned the two sides to negotiations in Rambouillet, a castle in
France. The content of the negotiations was to be shaped by non-negotiable prin-
ciples, which would determine the parameters of the settlement. These included: an
interim agreement, with a nal settlement after three years; no unilateral changes to
the interim status; international involvement; respect for the territorial integrity of
the FRY and neighbouring countries. The people of Kosovo were to be self-governed
by democratically accountable Kosovo institutions. Statements by NATO indicated
that force could be used to enforce a settlement. On 30 January the North Atlantic
Council called on both parties to accept the Rambouillet summons, to complete
negotiations on an interim settlement, to observe a ceasere, to comply with their
commitments to NATO, and to end the disproportionate use of force. It warned
that if these steps were not taken, the NATO Secretary-General could authorise air
strikes against the FRY.95
The Rambouillet talks took place from 6-23 February, with the assistance of three
negotiators from the Contact Group, representing the US, EU and Russia. A draft
framework agreement was presented to the parties. who had the opportunity to
propose modications, within the Contact Groups non-negotiable principles. The
negotiations produced a text, but neither party signed it. The Kosovo delegation indi-
cated acceptance subject to consultations with domestic authorities, while the Yugo-
slav delegation considered that the text required further negotiation. Follow-on talks
took place in Paris on 15-18 March. The Kosovo delegation accepted the draft, while
5 NATO Intervention
NATO began bombing targets in Yugoslavia on 24 March 1999 in a campaign that
would last for 78 days.103 The action was justied by NATO as, necessary to avert
a humanitarian catastrophe, due to Yugoslavias refusal to accept the Rambouillet
Accords, failure to fully observe agreed limits on its army and police, and excessive
without an obvious legal basis, that it was within the law as, an exceptional measure
to prevent an overwhelming humanitarian catastrophe.107 The Netherlands claimed
the NATO action was not unilateral but owed directly from Yugoslavias non-com-
pliance with SC Res. 1203 (1998).108 Slovenia argued for a doctrine of extreme neces-
sity, as it claimed had been the case in Bangladesh in 1971.109
Ironically, the state that intervened in Bangladesh in 1971, India, in a total reversal
of its position at that time, proved to be one of the ercest critics of NATO: we have
been told that the attacks are meant to prevent violations of human rights. Even
if that were so, it does not justify unprovoked military aggression. Two wrongs do
not make a right.110 Both Russia and China explicitly condemned the use of force
as a violation of the UN Charter111 and further criticism in the Council came from
Namibia,112 as well as by non-members, Belarus and Cuba.113
However, most states comments fell into a grey area in which the intervention
could be simultaneously illegal and necessary. Malaysia called it regrettable but nec-
essary.114 Argentina again regretted the action but considered that it was the respon-
sibility of Belgrade.115 Brazil found it set a problematic precedent, but fully identi-
ed with the moral considerations invoked.116 Gabon said it was understandable.117
Gambia put weight on the exigencies of the situation.118 There was consideration of
a balance between principles of respect for state sovereignty and human rights.119
There was also an acute awareness of the recent history of the genocide in Bosnia,
which the UN failed to prevent, and appeared to be happening again. The crisis was
taking place, so soon after Bosnia,120 and its lessons had not been learned.121 De-
spite unease amongst states, an opportunity to condemn the NATO intervention as
violation of the UN Charter, in a draft by Russia and Belarus, co-sponsored by India,
was decisively voted down by twelve votes to three.122
be taken over by the civil presence.131 It also charged with ensuring the demilitarisa-
tion of the KLA, and preventing the return of Yugoslav forces,132 except in certain
narrow, specied circumstances.133
Alongside the security presence, the resolution provided for a civilian administra-
tion, the United Nations Mission in Kosovo, or UNMIK.134 UNMIKs responsibility
was to establish the interim political framework for Kosovo which allowed substan-
tial autonomy and self-government.135 Addressing the humanitarian crisis in Kosovo,
it was to: support the coordination of humanitarian and disaster relief aid; assure the
safe and unimpaired return of refugees and displaced persons; protect and promote
human rights; reconstruct key infrastructure and economic reconstruction; and
take over from KFOR the maintenance of law and order through international police
personnel and the establishment of local police forces.136 UNMIK would perform ba-
sic civilian administrative functions in Kosovo, while organising and overseeing the
development of, and then elections to, provisional, democratic institutions for au-
tonomous self-government. It would subsequently transfer responsibilities to those
provisional institutions, retaining oversight.137 It would also engage with Kosovos
ultimate status after the interim rgime, by facilitating a political process designed
to determine Kosovos future status, taking into account the Rambouillet Accords.138
Lastly, in the nal stage, it would oversee the transfer to authority from the provi-
sional institutions to those established by the political settlement.139
SC Res 1244 explicitly provided for Kosovos autonomous self-government within
Yugoslavia (FRY), while simultaneously providing a legal basis that prevented the
FRY exercising its sovereign rights. It was also explicit that this rgime was tempo-
rary: interim and provisional.140 It provided little guidance, though, on the nal
status that would follow, aside from taking into account the Rambouillet Accords.
Given this ambiguity, various parties have focussed on dierent elements in the
resolution to support their preferred nal status. Those who considered that Kosovo
should remain within Yugoslavia (subsequently Serbia) pointed to the commitment
of all member states to the sovereignty and territorial integrity of Yugoslavia, as set
out in the Helsinki Final Act.141 This provision did reect the stated desire of a num-
ber of states on the Security Council that Kosovo be resolved within the territorial
integrity of Yugoslavia.142 However, this was only in the preamble, not the operative
paragraphs,143 and references to territorial integrity were a common formula in Se-
curity Council resolutions.144 The reference to territorial integrity in the Helsinki Fi-
nal Act could also imply recognition of self-determination,145 though within limits of
territorial integrity,146 though this, in turn, might be aected by human rights.147 The
resolution also specically referred to Yugoslavia and it was questioned whether
it applied to Serbia in the event of the break up of that state.148 Finally the provision
referred to the commitment of UN member states, which might imply that other
organisations (such as Kosovos institutions) were not so bound.149
Those in favour of Kosovos independence, highlighted the reference to Ram-
bouillet, which referred to a settlement based on the will of the people.150 Nonethe-
less, Rambouillet also contained references to territorial integrity151 and SC Res. 1244
only included a non-committal formula of taking into account the Accords. They
also read territorial integrity together with phrases in the resolution, such as pend-
ing a nal settlement,152 a political process153 and interim,154 to underline the
non-committal and temporary nature of the legal framework. Lastly, they pointed
to what they saw as the telling absence of any express prohibition of independence
in the resolution.155
The language of the resolution also alludes confusingly to the vocabulary of self-
determination. Kosovo is described as a people, the term associated with the right,
though it is the people of Kosovo,156 suggesting a more generic usage. It also refers
to all people in Kosovo,157 again generic, and a population,158 a term usually used
when the right does not apply. This provides scope for argument, but nothing that
specically recognises Kosovo as a people with a right of self-determination.159
This ambiguity provides a notable contrast with the other transitional author-
ity of this period, the United Nations Transitional Authority for East Timor (UN-
TAET), established in SC Res. 1272, on 25 October 1999, which itself was modelled
on SC Res. 1244. SC Res. 1272 identied the East Timorese as a people and referred to
a process of transition towards independence as an accurate reection of their views.
But see Argentina: There is a reference to the will of the people, but this by no means
amounts to recognition of a people in the legal sense. Written Statement of Argentina,
April , para. .
Written Statement of Cyprus, April , para. ; Written Statement of Romania,
April , para. ; Written Statement of Russia, April , para. ; Written
Statement of Spain, April , para. .
Written Statement of Czech Republic, April , ; Written Statement by Den-
mark, April , para. .; Written Statement of Estonia, April , para. ;
Statement of Ireland, April , para. ; Written Statement of Poland, April
, para. .
Declaration by Sierra Leone, April , ; Written Statement of Switzerland,
April , para. ; Written Statement of United Kingdom, April , para. .;
Written Statement of United States of America, April , ; Written Contribution
of Kosovo, April , para. ..
Statement of Germany, April , ; Written Contribution of Kosovo, April
, paras. ., ..
Written Statement of Swtizerland, April , para. ; Written Statement of United
Kingdom, April , para. .; Written Contribution of Kosovo, April ,
para. .;
Paragraph .
Annex , paragraph .
Preamble.
This should also be seen in the context of the general antipathy to secession. See Helen
Quane, A Right to Self-Determination for the Kosovo Albanians? Leiden Journal of
International Law (): -.
Chapter I, James Summers Kosovo: From Yugoslav Province to Disputed Independence 25
was the Principal Deputy and deputies for each pillar.169 International administra-
tors were in charge of each of the ve regions and thirty municipalities of Kosovo.170
These international administrators were assisted by local sta, who were intended
to take an increasingly prominent role.171 Kosovar participation in decision-making
initially took place only in an advisory capacity through a series of committees. At
the political level, the Kosovo Transitional Council, chaired by the SRSG, was to
include leaders from the main ethnic and political groups and to provide a sounding
board for UNMIK decisions and facilitate support for those decisions. In the admin-
istration, Joint Civilian Commissions, chaired by the regional administrators, were
established in health, universities, education and culture, municipalities and gover-
nance, post and telecommunications, and power. A Joint Advisory Council advised
on the selection of judges and prosecutors.172
The goals of UNMIK were to reconstruct Kosovo as a stable, peaceful society
in which, all peoples can enjoy the benets of democracy and self-governance,173
based on the rule of law, human rights and multiethnic governmental structures,
with a viable, self-sustaining, market-based economy integrated into south-eastern
Europe.174 UNMIKs Constitutional Framework 2001 was explicit that the develop-
ment of self-government in Kosovo should be directed towards achieving European
standards and closer integration with Europe.175
This rgime of political and economic development according to European stan-
dards had strong parallels with an earlier tradition of foreign rule: trusteeship.176
This principle, which derived from liberal philosophers, like Edmund Burke177 and
John Stuart Mill, 178 was central to Western colonial thought and a guiding principle
behind mandates under the League of Nations, and the Trusteeship and Non-Self-
Governing Territory systems in the UN Charter.179 Indeed, Article 77(1)(c) of the
Charter allows for a territory to be designated as a Trust Territory, and placed under
an administration with obligations to promote its political and economic advance-
ment, protection of human rights, and the progressive development of self-govern-
ment.180 This was very much like the rgime proposed for Kosovo. However, this sys-
tem was seen as tainted, by institutionalising colonialism, and no attempt was made
to revive it. Instead, the legal basis for UNMIK and similar rgimes of international
territorial administration came from the Security Council.
Nonetheless, not only were there similarities in SC Res. 1244 to the basic goals of
trusteeship, but its basic formula was also a trade o of good government over any
immediate form of national government. This ideology expanded as the administra-
tion progressed with the creation of benchmarks for development and the policy of
standards before status. This connected with another idea at the time with echoes
of trusteeship, earned sovereignty, in which institution-building provided the basis
for political status.181 However, if a lesson can be drawn from trusteeship, it is that
foreign rule justied by good governance can be undermined by demands for nation-
al government. Indeed, there was a nearby historical example from the nineteenth
century: the Ionian Islands, o the Albanian coast, where an attempt by British lib-
erals to establish good government was frustrated by the local preference for, a bit
of bunting with the Greek colours on it. 182
Edmund Burke, Speech on Mr. Foxs East India Bill, in The Works of Edmund Burke
(London: George Bell and Sons, ), volume II, ; Edmund Burke, Speech on Mov-
ing his Resolutions for Conciliation with the Colonies, in The Works of Edmund Burke
(London: George Bell and Sons, ), volume I, .
John Stuart Mill, Considerations on Representative Government, in Utilitarianism,
Liberty, Representative Government (London: J. M. Dent and Sons, ), .
See Namibia (Advisory Opinion), ICJ paras. - ( June). See also Charmian
Edwards Toussaint, The Trusteeship System of the United Nations (New York: Frederick
A. Praeger, ), -; H. Duncan Hall, Mandates, Dependencies and Trusteeship (Lon-
don: Stevens and Sons, ), , -; Hans Kohn, The United Nations and National
Self-Determination, Review of Politics (): ; D. Rauschning, International
Trusteeship System, in The Charter of the United Nations: A Commentary, ed. Bruno
Simma (Oxford: Oxford University Press, ), -.
See Ruert, note above, .
See Paul R. Williams and Francesca Jannotti Pecci, Earned Sovereignty: Bridging the
Gap between Sovereignty and Self-Determination, Stanford Journal of International
Law (): -; Knoll, note above, -.
Quoted in Bernard S. Cohn, Representing Authority in Victorian India, in The In-
vention of Tradition, eds. Eric Hobsbawm and Terence Ranger (Cambridge: Cambridge
University Press, ), . See also Sarah Wambaugh, A Monograph on Plebiscites
with a Collection of Ocial Documents (New York: Oxford University Press, ), -
.
28 I. Introduction
A further parallel with earlier systems of foreign rule was the relationship be-
tween UNMIK and local Kosovar politicians. The UN designed and established in-
stitutions for Kosovo, which created opportunities for Kosovo politicians, but as self-
government progressed, the UN depended on their cooperation for its success. This
dependency meant that the UN had to continuously engage with Kosovo national-
ism, attempting to direct it to more moderate paths. The period of self-government in
Kosovo was characterised by an ongoing friction between the SRSG and Provisional
Institutions.183 Ultimately, the 2008 Declaration of Independence was the work of
two UN-established, but locally controlled organs: the Assembly and Presidency,
working under the nationalist guise of being representatives of the Kosovo people.
town of Mitrovica, which divided along the Ibar River, with the north and south
banks becoming divided between Serbs and Albanians.189
The KLA was demilitarised on 20 September 1999, but this left the problem of
what to do with 10,000 registered combatants who needed reintegration into so-
ciety. Without jobs they could be a highly destabilising element. Vacancies in the
newly established police, re and civil services were not enough to absorb the bulk of
the ghters, therefore, an unarmed civilian emergency corps, the Kosovo Protection
Corps (KPC) was created. Like other new Kosovo institutions it was intended to be
multiethnic.190 Nonetheless, minority recruitment was extremely low and the KPC
was in general viewed with anxiety by Kosovos minorities. Some of its members
were associated with criminal activity.191
The destabilising potential of KLA ghters became evident with the start of guer-
rilla attacks on government forces in states bordering Kosovo. A low level insurgency
began in 2000 in the ethnic Albanian Presevo Valley region of southern Serbia, esca-
lating in November. In March 2001 ghting spread into Macedonia in the predomi-
nantly Albanian region around the city of Tetovo. Both movements, were short-lived
and demobilised in the summer of 2001.192 Nonetheless, they underlined the violent,
irredentist possibilities for Albanian nationalism in Kosovo.
tematic, though this was, in part, due to minorities moving into ethnic enclaves.196
Nonetheless, violence continued, often spiking around particular events.197 KFOR,
the UNMIK police and other members of the UN administration were also targeted
by extremists and criminals.198 In a territory where corruption was pervasive199 and
the black market a major part of the economy,200 criminal trials were hazardous.
Trials against former members of the KLA, in particular, saw the intimidation and
murder of witnesses.201 There was also political violence between Albanians. 202
Establishing a multiethnic administration was extremely dicult in such a po-
larised society. 400 schools managed to reopen for the new term in September 1999,
but only two of these were mixed.203 400 judicial and prosecutor positions were lled
by 2000, but only 46 by non-Albanians, of whom just seven were Serbs.204 Serb ju-
dicial candidates were often forced to resign or ee.205 Correspondingly, minorities
complained of discrimination in courts and international judges and prosecutors
had to be deployed to restore condence.206 The only public institution considered to
be successfully multiethnic was the Kosovo Police Service (KPS), which broadly met
its targets for minority and female recruitment.207
One sensitive issue was the law that the new administration would apply. UN-
MIK initially maintained the laws previously in eect (i.e. Serbian and Yugoslav)
provided that they complied with internationally recognised human rights stan-
dards and the Security Councils mandate.208 However, this provoked threats of non-
cooperation from politicians and resignations of judges and prosecutors, who saw
the law as the main instrument of their persecution after the abolition of autonomy.
They demanded the restoration of the pre-1989 law when Kosovo was autonomous,
though this was within a totalitarian system.209 On 12 December 1999 these laws
were reintroduced.210
not agreed a budget, and three were gridlocked by political disagreement.219 Minor-
ity participation was low by administrative standards, averaging less than 10,220
though UNMIK had intervened to push this to 12.221 40 of municipalities had
no translation sta.222 Ocial signs were bilingual in only six municipalities; thir-
teen were partially bilingual, but with the Serbian usually blacked out; and fourteen
were monolingual.223 Serb involvement was also undermined by parallel structures
in education, health and administration, funded and directed from Belgrade, which
existed in virtually all municipalities with a sizeable Serb population.224 Moreover, as
municipal authorities gained responsibilities, so they increasingly challenged UN-
MIKs authority.225
The next phase was the establishment of self-governing institutions for Kosovo.
On 15 May 2001 the SRSG promulgated the Constitutional Framework on Interim
Self-Government in Kosovo. This established the institutions of Kosovar self-gov-
ernment, including the Kosovo Assembly, Government and Presidency,226 as well
as, recognising international human rights obligations227 and the rights of ethnic
and linguistic communities.228 On 17 November elections were held for the Kosovo
Assembly.229 The LDK was the largest party, with 45.65 of the vote, followed by the
PDK on 25.7.230 Kosovo Serbs again did not participate.231 Nonetheless, thirty-ve
seats in the 120 seat Assembly were held by minorities, though this included twenty
set-aside seats, which had been reserved for communities.232 Disagreement between
the main parties prevented the formation of a government for over three months,
after which a coalition agreement was reached providing for Ibrahim Rugova to be
President and the PDKs Bajram Rexhepi to be Prime Minister.233 Nine departments
in the UNMIK administration were transformed into ten ministries under the new
government,234 two of which were reserved for minorities: one for Serbs and the
other for another community.235
UNMIK immediately transferred political authority to the newly-elected pro-
visional institutions, but the transfer of executive functions to local civil servants
was incremental. Progress in creating an impartial multiethnic civil service proved
uneven. Filling senior positions and recruiting minorities was dicult, due to con-
tinuing politicisation, a relatively low salary, and for Serbs, opposition from politi-
cal parties236 and better conditions in the parallel structures.237 Nonetheless, by the
end of 2003, all non-reserved responsibilities were transferred to the provisional
institutions.238 The SRSG still retained a signicant number of reserved powers, in
particular, relating to Kosovos external relations.239 The new institutions, however,
began to challenge this authority, showing in the eyes of the UN: an increasing de-
sire to encroach on the powers reserved for the Special Representative rather than
concentrating on the urgent matters over which these bodies have responsibility.240
The SRSG had a veto over the Provisional Institutions and exercised it a number
of times.241 Nonetheless, despite these clashes, he still reported that it was easier
to pressure central institutions to comply with UN standards than the municipali-
ties.242
Serbia was also in a transition to full democracy, with Miloevi being forced
to stand down from the Presidency of Yugoslavia in October 2000, after losing an
election to Vojislav Kotunica. He was arrested in March 2001 and transferred to
the International Criminal Tribunal for the Former Yugoslavia on 28 June, where
he died on trial for genocide, crimes against humanity and war crimes on 11 March
2006. A key argument behind Kosovo independence was the human rights situation
in Yugoslavia. However, following Miloevis removal, Serbia could argue that those
concerns no longer applied. 243
d Benchmarks
The development of self-government and transfer of authority to provisional institu-
tions was guided by benchmarks. In April 2002 the SRSG, Michael Steiner outlined
a series of benchmarks which needed to be achieved before a discussion of Kosovos
status, an approach known as standards before status: 244
Serbia: the Republic of Serbia... since has been an entirely democratic State in
which human rights are widely respected and in which all the inhabitants, regardless
of their national origin, language or religion, can participate in public life. Written
Statement of Serbia, April , para. . See also Written Statement of Romania,
April , paras. -; Written Statement of Russia, April , para. . See
Quentin Peel, Chained to Serbias Good Guy, Financial Times ( October ).
UN Doc. S// ( October ), para. ; Knoll, note above, -.
UN Doc. S/PV. ( April ), .
Judah, note above, .
UN Doc. S// ( January ), para. .
UN Doc. S// ( December ), para. .
UN Doc. S// ( January ), para. .
Ibid. para. .
This was endorsed in a statement by the President of the Security Council on Decem-
ber , UN Doc. S/PV. ( December ), -.
Chapter I, James Summers Kosovo: From Yugoslav Province to Disputed Independence 35
4,100 minorities were displaced, more than the 3,664 who had returned the previ-
ous year.259 Moreover, the response to the violence from provisional institutions was
muted and equivocal. The Prime Minister, Bajram Rexhepi condemned the violence,
but a minister from his PDK party blamed Serbs. In the municipalities, condemna-
tion from assemblies was often tempered with anti-Serb and anti-UNMIK declara-
tions, nationalist displays, and sympathy for the rioters.260
project, which would continue after nal status negotiations. Attempts to make
Kosovo adhere to unrealistically ambitious standards had made Kosovars question
the sincerity behind them.268 It was time to consider, a workable exit strategy.269
UN states had eectively used UNMIK to keep the lid on Kosovo, but this had
become untenable.270 Moreover, there was nothing to be gained from delaying:
There will not be any ideal moment for starting such preparations not even a
good moment.271 However, such an exit strategy required the international commu-
nity to, stay the course in a coherent way.272 Such international coherence, though,
would ultimately prove an insurmountable challenge.
on human rights and the rule of law; ensuring a sustainable multi-ethnicity, with
rights for communities, the return of refugees and the displaced; and integration
into Euro-Atlantic institutions. They also set specic dimensions on the settlement.
There would be no return to Kosovos pre-March 1999 status. The territory would be
neither partitioned nor enter into a union with another state or part of another state
(i.e. no greater Albania). No unilateral or forcible measures would be allowed. The
territorial integrity of neighbours would be respected. The Group later added that
the settlement also had to be acceptable to the population of Kosovo.278 Moreover,
regardless of the form of the settlement, an international civil and military presence
would remain to supervise compliance with its terms and to monitor and support
the implementation of standards.
Fifteen rounds of negotiations took place in 2006,279 which also saw the separa-
tion of Serbia and Montenegro in June.280 On 30 September 2006, Serbias National
Assembly adopted a new Constitution, narrowly endorsed in referendum, which
oered Kosovo substantial autonomy within Serbia. However, whether this actu-
ally guaranteed autonomy, was questioned in an opinion by the Council of Europes
Venice Commission, which noted that autonomy was subject to laws passed by the
Serbian Assembly.281 Nonetheless, despite repeated statements by the Contact Group
that the process once started could not be blocked, a settlement remained elusive.
By 20 September Contact Group ministers, noted the continuing distance between
Belgrade and Pristina, and without Russian support called on the Special Envoy to
draw up proposals for a comprehensive settlement.282
On 2 February 2007 Martti Ahtisaari presented his proposals to the two parties.
The Comprehensive Proposal for the Kosovo Status Settlement comprised a frame-
work text with twelve annexes and was formally neutral on Kosovos status.283 None-
theless, it gave Kosovo attributes normally associated with statehood, such as the
Article ().
Weller, note above, -.
Report of the Special Envoy of the Secretary-General on Kosovos Future Status, UN
Doc. S// ( March ), paras. and .
Ibid. para. , -.
Ibid. paras. and .
Ibid. paras. and .
Ibid. para. .
40 I. Introduction
bia, attacked Ahtisaari and called for fresh negotiations under a new mediator.291
The failure of the Council to adopt the Status Settlement Proposal initiated further
rounds of diplomacy. There were attempts to nd a formula which would allow the
Council to adopt the proposals, if not the recommendation of independence. Ne-
gotiations between Belgrade and Pristina continued under a Troika of US, EU and
Russian representatives.292 None of the initiatives succeeded, and there was a sense,
reected in the report by the Secretary-General in January 2008, that: events on the
ground could take on a momentum of their own, putting at serious risk the achieve-
ments and legacy of the United Nations in Kosovo.293
slowed,301 with a clear majority of countries not extending ocial recognition. It was
also questionable to what extent Kosovo ful lled the generally-cited Montevideo
criteria for statehood, in particular, with the continued international involvement in
its administration, as well as, Serb areas outside government control.
The acceptance of an international presence to supervise implementation of the
Ahtisaari Plan had signicant implications for Kosovos self-government. Shortly af-
ter the Declaration, on 28 February, an International Steering Group, composed of
European countries recognising Kosovo and the US, established an International
Civilian Oce (ICO) for Kosovo, headed by an International Civilian Representa-
tive (ICR). Pieter Feith, the European Union Special Representative for Kosovo took
on this additional role.302 The ICRs role was to supervise implementation of the
Ahtisaari Plan and was invested with extensive powers, including the annulment
of laws and government decisions, and the authority to sanction and remove public
ocials.303 The role was modelled on a similar post in Bosnia-Herzegovina,304 but
Bosnia at that stage was an established member of the United Nations, not a state
struggling for recognition.305
The declaration also signalled the marginalisation of the SRSG. Reliant on coop-
eration with Kosovos institutions, he found himself unable to exercise the powers
still formally vested in him by SC Res. 1244.306 The Kosovo government indicated
that they would only support a continued UN presence in a residual role.307 On 12
June 2008 the Secretary-General recommended reconguring UNMIK to perform
a range of limited functions, including monitoring, reporting, facilitating Kosovos
engagement with international agreements and assisting with dialogue between
Pristina and Belgrade.308 There was also a shift in the international administration
from the UN to the EU, with the EUs rule of law mission, EULEX, taking on respon-
sibilities for policing, the administration of justice and customs. EULEX was created
by the EU Council, with only a coordinating role with UNMIK, though it claimed
to derive authority from SC Res. 1244.309 This basis, however, was challenged, in par-
ticular, by Russia and the EU subsequently agreed that EULEX should operate under
the authority of the UN.310 The mission was endorsed by the President of the Secu-
rity Council on 26 November 2008.311 On 9 December, 1,045 EULEX police ocers
took over from the UNMIK police and EULEX assumed its functions in justice and
customs.312 By the 1 July 2009 UNMIK was reduced to a sta of 510.313
On 22 July 2010 the International Court delivered the Accordance with International
Law of the Unilateral Declaration of Independence in Respect of Kosovo Advisory
Opinion (hereafter Kosovo Opinion). By a clear ten to four majority, the Court con-
sidered that the Declaration did not violate international law. The Courts exami-
nation of the legality of the Declaration divided into two principal areas: general
international law and the lex specialis established by SC Res. 1244.
Wet, The Governance of Kosovo: Security Council Resolution and the Establish-
ment and Functioning of EULEX, American Journal of International Law ():
-.
UN Doc. S// ( November ), para. .
UN Doc. S/PV. ( November ), paras. -.
UN Doc. S// ( March ), paras. -.
UN Doc. S// ( September ), para. .
See Costa Rica, UN Doc. A//PV. ( October ), ; Noway, ibid. ; Iceland, ibid.
.
See Turkey, UN Doc. A//PV. ( October ), .
See Turkey, UN Doc. A//PV. ( October ), ; US, ibid. ; France, ibid. ; South
Africa, ibid. ; Denmark, ibid. .
Kosovo (Advisory Opinion), ICJ para. ( July).
Chapter I, James Summers Kosovo: From Yugoslav Province to Disputed Independence 43
During the eighteenth, nineteenth and early twentieth centuries, there were numerous
instances of declarations of independence, often strenuously opposed by the State from
which independence was being declared. Sometimes a declaration resulted in the creation
of a new State, at others it did not.319
The Court maintained this margin by a tight focus on the question. It noted that
the question was narrow and specic320 and interpreted it as narrowly as possible,
focussing on the legality of declaring independence, but not on the wider process of
obtaining it. There was no need to examine whether Kosovo had obtained statehood,
the eects of recognition, and whether secession existed as a positive right.321 The
Court distinguished its function from that of the Canadian Supreme Court in Re
Secession of Quebec (1997) which considered whether international law conferred on
Quebec a positive right to secede from Canada.322 Such questions were outside the
scope of the Opinion. It was only concerned with negative prohibitions, or what was
also called the Lotus principle, that whatever is not prohibited is permitted.323 The
Court, correspondingly, could nd that the declaration of independence itself was
not unlawful, even if the secession (for the sake of argument) was. Within this nar-
row remit, the Court found that there was nothing to prevent such statements: [i]n
no case... does the practice of States as a whole suggest that the act of promulgating
the declaration was regarded as contrary to international law.324
Even though it declared it unnecessary, the Court did stray into aspects of the
law of secession, albeit to dismiss them. A general right to secede was a, subject on
which radically dierent views were expressed by those taking part in the proceed-
ings, in other words, it lacked the necessary opinio juris for custom. Similar dier-
ences, and thus no custom, also surrounded remedial secession and there was a, a
sharp dierence of views, as to whether this applied to Kosovo.325
Regrets were expressed, by individual judges, that an opportunity to explore a
variety of areas of secession, such as internal and external self-determination, was
passed over.326 Indeed, the observations of states in both the written and oral pro-
ceedings before the Court provide a wealth of ideas from states on this point. None-
theless, they do also underline the Courts position of fundamental disagreement
between states. There was signicant support for remedial secession from several
states.327 However, this has to be weighed against the opposition of others,328 and the
non-committal position taken by states, such as Denmark and the UK,329 as well as
the support from Russia evidently tailored to its recognition of South Ossetia and
Abkhazia.330 In addition, the 35 states who participated were predominantly Euro-
pean. A greater participation from Asia and Africa would most likely increase op-
position to those concepts.
Ibid. para .
See Judge Simma, Declaration, ibid. paras. -; Judge Sepulvda-Amor, Separate Opin-
ion, ibid. para. ; Judge Canado Trindade, Separate Opinion, ibid. para. ; Judge
Yusuf, Separate Opinion, ibid. paras. , -.
See Written Statement of Albania, April , paras. -; Written Statement of
Estonia, April , para. .; Statement of Finland, April , paras. -;
Statement of Germany, April , -; Statement of Ireland, April , paras.
-; Written Statement of Netherlands, April , paras. .-.; Written State-
ment of Norway, April , para. ; Written Statement of Poland, April ,
paras. .-., .; Written Statement of Slovenia, April , ; Written Statement
of Swtizerland, April , paras. -. See also Judge Canado Trindade, Separate
Opinion, Kosovo Opinion, paras. -; Judge Yusuf, Separate Opinion, ibid. paras.
-. See also K. William Watson, When in the Course of Human Events: Kosovos
Independence and the Law of Secession, Tulane Journal of International and Com-
parative Law (): -, .
Written Statement of Argentina, April , paras. , -; Written Statement
of Azerbaijan, April , para. ; Written Statement of Brazil, April , ;
Written Statement of China, April , -; Written Statement by Cyprus, April
, paras. -; Written Statement of Egypt, April , paras. -; Written
Statement of Iran, April , para. .; Written Statement of Japan, April ,
; Written Statement of Libya, April ; Written Statement of Romania, April
, paras. -; Written Statement of Serbia, April , para. ; Written
Statement of Spain, April , paras. -; Written Statement of Slovakia, April
, paras. -. See also Judge Koroma, Dissenting Opinion, Kosovo Opinion, paras.
-.
Denmark: the Danish Government sees no reason why denial of meaningful internal
self-determination, as Kosovo was arguably subjected to at least from the late s,
should be deemed irrelevant in relation to an otherwise legitimate claim of independ-
ence. Written Statement of Denmark, April , .; Written Statement of United
Kingdom, April , paras. .-..
Written Statement of Russia, April , para. .
Chapter I, James Summers Kosovo: From Yugoslav Province to Disputed Independence 45
Were there legal principles that might prohibit a unilateral declaration of inde-
pendence? The most likely candidate was territorial integrity. The Court, however,
dismissed this. The scope of the principle of territorial integrity was con ned to the
sphere of relations between States and thus did not apply to non-state actors declar-
ing independence.331 The Courts reasoning here, though, was curious. It appeared to
reach the conclusion that territorial integrity was a principle of inter-state relations,
by restricting its study to inter-state relations. The ICJ cited three provisions: Article
2(4), UN Charter 1945, Principle 1, Declaration on Friendly Relations, GA Res. 2625
(XXV) (1970) and Principle IV, Helsinki Final Act 1975. All three to related territorial
integrity, but in the context of the threat or use of force between states: a situation
that was not at issue. On the other hand, it overlooked Principle 5 of GA Res. 2625
(XXV) and Principle VIII(1) of the Helsinki Final Act, that contained provisions on
territorial integrity specically in the context of self-determination.332 It passed over
Re Secession of Quebec, which considered secession within a framework of territo-
rial integrity.333 It even excluded its own nding in Western Sahara that territorial
sovereignty could aect the application of self-determination.334
The ICJ did recognise instances when independence declarations were consid-
ered unlawful, noting Security Council practice concerning Southern Rhodesia,
Northern Cyprus and the Republika Srpska. However, it was careful to distinguish
the act of declaring independence from the legal context of the separation. The ille-
gality of those declarations stemmed not from their, unilateral character... as such,
but from connection to, the unlawful use of force or other egregious violations of
norms of general international law, in particular those of a peremptory character
(jus cogens).335 The exceptional character of these resolutions meant that were the
exceptions that proved a rule, or rather the lack of one: that no general prohibition
against unilateral declarations of independence may be inferred from the practice
of the Security Council. Moreover, the Court noted that in respect to Kosovo, the
Security Council has never taken this position.336
Ibid. paras. -.
Ibid. para. .
Ibid. para. .
Written Statement of Albania, April , para. ; Written Statement by Austria,
April , para. ; Written Statement of Estonia, April , para. ; Statement of
Germany, April , -; Written Statement of Luxembourg, March , para.
; Written Statement of Norway, April , para. ; Written Statement of United
Kingdom, April , paras. ., ..
For the contrary see Written Statement of Argentina, April , para. ; Written
Statement of Bolivia, April , ; Written Statement of Brazil, April , ;
Written Statement by Cyprus, April , paras. , ; Written Statement of Czech
Republic, April , ; Written Statement of Romania, April , para. ; Writ-
ten Statement by Russia, April , paras. -; Written Statement of Serbia,
April , para. ; Written Statement of Spain, April , paras. , ; Written
Statement of Slovakia, April , para. .
Written Contribution of Kosovo, April , paras. .; .-., ..
Chapter I, James Summers Kosovo: From Yugoslav Province to Disputed Independence 47
but, persons who acted in their capacity as representatives of the people of Kosovo
outside the framework of the interim administration.342
The Courts assessment rested on three mains grounds. First, the text of the dec-
laration did not refer to itself as the work of the Kosovo Assembly and introduced the
authors as, We rather than, The Assembly of Kosovo Second, on procedure,
the Declaration was signed by the Kosovo President, who was not a member of the
Assembly, and was not forwarded to the SRSG for publication in the Ocial Gazette
like other legislative acts. Third, SRSG, who, would have been under a duty to take
action with regard to acts of the Assembly of Kosovo which he considered to be ultra
vires, had failed to intervene.343
The interpretation of these points is open to question, and was vigorously chal-
lenged by individual judges,344 many of whom also questioned the wisdom of allow-
ing individuals apparently to step outside a legal framework by an apparent rhetori-
cal ourish.345 It is signicant, though, that the ability of persons to escape from the
legal framework in which they nd themselves by invoking the will of the people is in
essence the argument of self-determination.346 The ICJ, of course, found nothing that
indicated a right of Kosovo to self-determination, but it recognised a margin which
allowed a similar eect. This might have a signicant impact on future international
territorial administration. Just as the Court appeared to maintain a political margin
around the formation and break up of sovereign states, so this margin could also
extend to the authority of the Security Council when it engages in state-building
projects.
10 Conclusion
Kosovos journey from Yugoslav province to disputed independence has challenged
basic concepts of sovereignty and international law. How should this legal process
be characterised?
The most obvious legal framework is secession. Kosovo, when it was under inter-
national administration, was recognised as being under the sovereignty of Yugosla-
via (FRY) to which Serbia can be seen as a successor. Independence without Serbian
consent is characteristic of secession. However, legally this is only half the picture:
the perspective reected in the general international law part of the ICJ Opinion.
Serbias sovereignty had been rendered ineective. The Declaration was not intended
to stop Serbia exercising sovereignty in Kosovo, but to prevent it from being able to
do so in future. Of course, other states have lost control over parts of their territory,
but this was not a limitation caused by weak government or a rebellion, but imposed
under a Security Council resolution. Moreover, SC Res. 1244 essentially created the
context for the secession. It provided the basis for the institutions that declared in-
dependence; the legal provisions and actors that were intended to prevent such a
declaration; and the legal and political framework that prevented Kosovars from
exercising greater self-government, and which can be seen to form a substantial part
of the object of the Declaration.
Kosovo has been considered as a candidate for a right of remedial secession. This,
though, has problems. To begin with, it may be doubted whether such a right ex-
ists in international law,347 as the ICJ appears to a rm. However, there are specic
objections relating to Kosovo. First, the initial response to Serbias oppression was
not support for independence, but an autonomous international rgime that lasted
for over eight years.348 Second, Serbia changed its government and its political stan-
dards, and had not exercised authority in Kosovo for years by the time independence
was declared.349 It is may be true that the memory of oppression precluded the pos-
sibility of a peaceful restoration of Serbian authority, but this was more of a political
question for how to terminate the international presence. Th ird, abuses suered by
minorities in Kosovo, undermine the legitimacy of Kosovos claim and could even,
following the same standard, legitimise separatist claims by those minorities.350
Another model for Kosovo is the termination of an international territorial ad-
ministration. This may not, in itself, be determinative. Similar administrations have
ended according to a predetermined status. Thus, UNTAET facilitated East Timors
transition to independence, while UNTAES assisted in Eastern Slavonias reintegra-
tion into Croatia. Kosovo, though, diered from both those administrations. The
intense argument over the terms of a nal status in SC Res. 1244 underline the am-
biguity that existed there, coupled with the open-ended nature of the international
mandate. Without a predetermined endpoint, Kosovo provided greater scope for the
dynamics of international administration itself to shape a nal settlement. If inter-
See James Summers, Peoples and International Law: How Nationalism and Self-Deter-
mination Shape a Contemporary Law of Nations (Leiden: Brill, ), -.
Written Statement of Romania, April , para. ; Written Statement of Russia,
April , para. .
Written Statement by Russia, April , paras. , -; Written Statement of
Romania, April , para. . See Zoran Oklopcic, Populus Interruptus: Self-De-
termination, the Independence of Kosovo, and the Vocabulary of Peoplehood, Leiden
Journal of International Law (): ; Rein Mllerson, Precedents in the Moun-
tains: On Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abk-
hazia, Chinese Journal of International Law (): .
See Serbia, UN Doc. S/PV. ( February ), . See also Morag Goodwin, From
Province to Protectorate to State? Speculation on the Impact of Kosovos Genesis upon
Doctrines of International Law, German Law Journal (): .
Chapter I, James Summers Kosovo: From Yugoslav Province to Disputed Independence 49
bia has criticised sui generis as an attempt to exempt Kosovo from international
law,355 but the argument, and its component parts, could inuence how that law is in-
terpreted. The legal position that minorities do not have a right to secede is normally
expressed through a balance between self-determination and territorial integrity.
However, typically this balance has been treated as subject to broader considerations
of stability, which reinforces territorial integrity, and oppression, which may give
strength to a self-determination claim.356 Sui generis, by highlighting the distinctive
international administrative context of Kosovo, and thus its limited implications,
while also emphasising oppression, may be seen to shift the weight in the balance
from territorial integrity towards self-determination. It can, therefore, be seen as
a package of arguments which together work to weaken the principle of territorial
integrity. This does not necessarily establish self-determination as a legal right, but it
could, at least, restrict territorial integrity as a limitation on political self-determina-
tion. Conversely, the precedent argument focuses on Kosovo as a secession, a more
common scenario, and strengthens territorial integrity by emphasising instability.
In the words of Serbia: there are dozens of Kosovos in the world, and all of them are
lying in wait for Kosovos act of secession to become a reality and to be established
as an acceptable norm.357
Both arguments may be overemphasising these elements. Kosovo can be seen as
an international administration with distinctive elements, but such rgimes, by their
very nature, tend to be bespoke. Comparisons can be drawn to East Timor, which
also experienced systematic violence,358 and more broadly to a history of internation-
al administration and trusteeship. 359 On the other hand, the precedent argument
has a danger of being self-fullling. In particular, Russia, which described Kosovos
independence, as a, a very dangerous precedent,360 subsequently used it, in part, as
justication for its recognition of secession by South Ossetia and Abkhazia.361
Lastly, while the International Court of Justice, does not formally create prec-
edent, its Opinion has set parameters for future international territorial administra-
tion. If a state found part of its territory placed under international administration
and valued its sovereignty, it would insistent on the timing and method of termi-
nation being specied, with a clear reference to territorial integrity in the opera-
tive part of a Security Council resolution, preferably paragraph one. In this regard,
Kosovo may create a precedent, which, in turn, could make it unique.
KAIYAN H. KAIKOBAD
Kaiyan Kaikobad was Professor of International Law in the Brunel Law School. He
presented a paper with this same title for the The Kosovo Precedent Conference
at Lancaster University on 28 March 2009 and had started to write it up for pub-
lication. He died in July 2010, quite suddenly and before the International Court of
Justice had given its decision in the Advisory Opinion requested by the General As-
sembly Accordance with International Law of the Unilateral Declaration of Indepen-
dence in respect of Kosovo (hereafter, the Advisory Opinion). I, Colin Warbrick, had
been a colleague of his at Durham from his arrival there in 1993 to our departures
to Brunel and Birmingham in 2006, though I had known him for a lot longer than
that. Although we had a similar approach to international law, we did not see eye
to eye on every question which arose. We had had little opportunity to discuss the
Kosovo situation after the Unilateral Declaration of Independence, though we were
of one mind about the illegality of the bombing of Yugoslavia in 1999. I have written
up Kaiyans uncompleted chapter, trying as best I can to do as I think he would have
intended. His plan, it will not surprise those who knew him, was for an extensive
paper and, in this respect, I have not emulated his comprehensive ambition: the pa-
per is not as long as the one he would have produced. I have made occasional notes
of some of my own dierences with his positions and added some brief information
about events after his draft was nished. I have put these as [CW]. I have also at-
tached a brief note on the Advisory Opinion as a postscript. I have not always been
able to nd Kaiyans references and have usually substituted ones of my own but I
have not indicated these instances one by one. Kaiyans death was a great loss to the
many international lawyers who knew him as a committed and reliable authority
and as a good friend.
It is not intended here to discuss the lawfulness or otherwise the armed action taken
against Yugoslavia by NATO. The sources relevant for the history and law relative to
the action includes Independent International Commission on Kosovo, The Kosovo Re-
port, (Oxford: Oxford Scholarship, ); C. L. Sriram, O. Martin-Ortega and J. Her-
man, War, Conict and Human Rights (London: Routledge, ), -; Richard Falk,
Achieving Human Rights (New York: Routledge, ), -.
See Noel Malcolm, Kosovo: A Short History (Basingstoke: MacMillan ), Chapters
and ; Written Pleadings of Serbia Accessed October . www.icj-cij.org/docket/
les//.pdf pp - and Written Pleadings of The Authors of the Unilater-
al Declaration of Independence. Accessed October . www.icj-cij-org/docket/
les//.pdf pp -. Kosovo is used in this paper without any implications for
its status. Kosovars, though not strictly accurately is used in general to refer to the
Albanian Kosovar population of Kosovo.
The identity of the body which adopted the unilateral declaration of independence was
a highly contested issue in the Advisory Opinion proceedings (see below).
General Assembly Resolution /, UN Doc. A/RES// ( October ).
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 57
ereign state of Kosovo. The power of the Security Council regarding the creation of
states is the problem third in line for consideration. It involves scrutinising the issue
of whether or not the relevant provisions of the Charter of the United Nations can
be interpreted to support the contention that the Security Council has the power
eectively to create an independent state and, if this power does exist, then what
constitutes its precise scope and eect. At the fourth level, attention will be paid to
the legal obligations of certain relevant bodies in the light of the asserted statehood
of the Kosovo entity, namely the governmental authorities in Kosovo; UNMIK; the
European Union; and the Security Council. Finally, it will be useful to round o the
discussion by examining the rights of and remedies available to Serbia as a result of
the unilateral declaration of independence by Kosovo.
3 Self-Determination
[This was not the case for the Advisory Opinion, where Kosovo simply maintained that
there was no rule of law which prohibited the UDI. To the extent that Kosovo claimed
the right to be treated in the same way as other components of the Socialist Federal
Republic of Yugoslavia on its disintegration and that they had been acknowledged by
the Badinter Commission to be exercising rights of self-determination, Kosovo did rely
on the rather particular notion of self-determination on which the Commission relied.
CW].
See the Annex to GA Res. (XXV), UN Doc. A/RES/ ( Oct. ). Of course,
the Declaration on the Granting of Independence to Colonial Countries and Peoples
was adopted ten years earlier with a denition similar but not identical in substance and
is explicitly a statement of international law; but the Declaration is a renement
of the denition contained in paragraph . See GA Res. (XV), UN Doc. A/
RES/ ( December ). Generally on self-determination, see the Namibia Ad-
visory Opinion, ICJ ( October); and the Western Sahara, Advisory Opinion,
ICJ ( June).
58 II. Kosovos Unilateral Declaration of Independence
The four essential points which come out of this denition are as follows. First, there
must be a group of individuals which can be described as a peoples, and this means
that there must be a denite sense of being a self-contained, cohesive group consti-
tuting an entity, no matter how small or big that entity may be.7 Although the deni-
tion is silent on this, it would be optimal in terms of international law if the peoples
were in fact associated with an identied territory in which it could exercise its right
to self-determination. Secondly, these groups are vested with a right to determine
certain aspects of their future as an entity; and again although the Declaration does
not so stipulate, that determination may be carried out in a variety of ways, includ-
ing, a plebiscite, referendum, general elections mushwara and the like.8 Indeed, as
the International Court held in the Western Sahara advisory opinion, paragraph 2
of the General Assembly Declaration on the Granting of Independence to Colonial
Countries and Peoples,9 conrms and emphasises that the application of the right of
self determination requires a free and genuine expression of the will of the people
concerned.10 In General Assembly Resolution 1541 (XV) on the Principles for the
Transmission of Information under Article 73 (e) of the Charter,11 Principle VII (a)
stipulates:
Free association should be the result of a free and voluntary process by the peoples of the
territory concerned expressed through informed and democratic processes.
A similar sort of provision exists for associated territories. The Court acknowledged,
however, in the Western Sahara Advisory Opinion that there were cases in which
the General Assembly had dispensed with consultation processes. The Court held
that in those cases the position taken was that the inhabitants did not constitute a
peoples entitled to self determination or on the conviction that a consultation was
totally unnecessary, in view of special circumstances,12 but it did not spell out what
those circumstances could be.
Thirdly, the right to make this determination must be free from any form of ex-
ternal interference. This would include notions not only negative in character, such
as compulsion, coercion and duress, but also in principle all manner of positive in-
ducements, including the promise of nancial rewards and property benets. The
rationale is simple enough: any kind of negative or positive interference will skew the
result and will not be a fair and accurate representation of the wishes of the people.
The fourth point is concerned with the nature of the determination to be made by
the peoples in question; and here it is the case that the right extends to deciding not
only the future political status of the group as a formal entity, but its economic, so-
cial and cultural systems as well. This is in some ways a relic of the era in which the
Declaration was adopted by the General Assembly. During the Cold War, the Com-
munist bloc and the developing world were all too happy to implement development
plans which were socialist in nature and content; and were none too happy to be
reprimanded for abandoning strict market economic policies.
Reference in brief may also be made to the various ways in which the right of self-
determination may manifest itself; or as the Friendly Relations Declaration puts it, to
the modes by which the right of self-determination is implemented. There are three
forms as outlined in the fourth paragraph of the self-determination principle in the
Friendly Relations Declaration.13 The rst manifestation of the right as expressed by
a non-self- governing territory is the one which, in actual fact, denes the very right
itself, namely the sovereign independent State.14 In the second place, an act of self-
determination may result, not as the choice to be an independent State but as one in
which the peoples has decided either to integrate with another existing State or be
in free association with it.15 Thus, when Zanzibar merged with Tanganyika in 1963;
or when Singapore merged with Malaya in 1962, and when British Togoland decided
to join Gold Coast/Ghana in 1956, these entities were denying themselves indepen-
dence but not the right of self-determination. Similarly, by agreeing the Compact
of Free Association with the United States, which came into eect in 1994, Palau is
understood to have exercised its right of self-determination.16
The third form of manifestation is an omnibus category. Thus any kind of emer-
gence into any other political status freely determined by a people constitutes one
Ian Brownlie, Principles of Public International Law, Sixth Edition, (Oxford: Oxford
University Press, ), .
The Mandate system created three categories of mandated territories, a system which
helped the victorious States to redistribute the territories of the two vanquished Em-
pires of Austro-Hungary and Turkey/Ottomans in Africa and Asia. Territories in
Europe were granted independence. The Mandate system was, as Akehurst puts it, a
compromise between the Allies seeking annexation and President Wilsons ideal of
self-determination. See Michael Akehurst, A Modern Introduction of International
Law, Fourth edition, (London: Routledge, ), . For the mandates system, see Arti-
cle of the Covenant.
See Patrick Thornberry, The Principle of Self-Determination, in The United Nations
and the Principles of International Law Essays in Memory of Michael Akehurst, eds.
Colin Warbrick and Vaughan Lowe (London: Routledge, ), , citing Cassese, The
Helsinki Declaration and Self Determination, in Human Rights, International Law and
the Helsinki Accord, eds. Thomas Buergenthal and Judith R. Hall (New York: Universe
Books, ), . [This looks to me more like a decision about whether or not a particu-
lar claimant group is a peoples for the purposes of self-determination (or like questions,
such as problems in identifying the relevant territory), rather than a limitation on any
right of self-determination. CW].
62 II. Kosovos Unilateral Declaration of Independence
is somehow questionable. There is a lot of good sense in this approach to the matter
for it is easy to think of many examples whereby the implementation of self-deter-
mination would cause massive regional instability. The Kurds claim to statehood is
indeed stymied by this fact for a Kurdish state would destabilise Iraq, Syria, Iran,
Azerbaijan, and deprive Turkey of approximately one-third of its territory. Such a
situation is dicult to accept.
Thirdly, self-determination has a human rights aspect,24 proof of which can be
had by referring to Article 1 of the International Covenant for International and Po-
litical Rights; and for the International Covenant for Economic and Social and Cul-
tural Rights. As the Human Rights Committee stated in General Comment No. 1225:
In accordance with the purposes and principles of the Charter of the United Nations,
article 1 of the International Covenant on Civil and Political Rights recognises that all
peoples have the right of self-determination. The right of self-determination is of particu-
lar importance because its realisation is an essential condition for the eective guarantee
and observance of individual human rights and for the promotion and strengthening of
those rights. It is for that reason that States set forth the right of self-determination in a
provision of positive law in both Covenants and placed this provision as article 1 apart
from and before all of the other rights in the two Covenants.26
Generally see Malcolm Shaw, Peoples, Territorialism and Boundaries, European Jour-
nal of International Law (): .
Human Rights Committee, General Comment No. : The Right of Self-Determination
of Peoples, Twenty-rst Session, March .
There is considerable dispute about what exactly the common Articles of the Cov-
enants mean but they cannot mean exactly or solely the same as self-determination
in the colonial context, cf Article () and () and see Antonio Cassese, Self-Determi-
nation of Peoples: a Legal Reappraisal (Cambridge: Cambridge University Press, ),
-.
See generally Brownlie, note above, -.
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 63
alive the colonial system, although it divided colonial peoples into two classes (non-
self-governing territories and trust territories)...28
There is little reason to dwell on this question any further because, as the Inter-
national Court of Justice observed in its advisory opinion in the Namibia case that
the subsequent development of international law in regard to non-self-governing
territories, as enshrined in the Charter of the United Nations, made the principle of
self- determination applicable to all of them.29 Ever since the adoption of the 1960
General Assembly Declaration on the Granting of Independence to Colonial Ter-
ritories and Peoples,30 it is more than clearly apparent that self-determination, in
addition to being a lawful policy and goal of the governments of metropolitan States,
is a legal right vested in the peoples of non-self-governing territories.31 Paragraph 5
of the Declaration provides:
Immediate steps should be taken, in Trust and Non-Self Governing Territories or all other
territories which have not yet attained independence, to transfer all powers to the peoples
of those territories, without any conditions or reservations, in accordance with their freely
expressed will and desire, without any distinction as to race, creed or colour, in order to
enable them to enjoy complete independence and freedom.
See Antonio Cassese, International Law, Second Edition, (Oxford: Oxford University
Press, ), .
ICJ ( June). This was elaborated further in the Western Sahara Advisory
Opinion, ICJ - ( October).
Resolution (XV), UN Doc. A/RES/ ( Dec.).
See in this respect see Shaw, note above, -.
Cassese sees self determination as a jus cogens from the aspect of human rights, note
above, -; Alexander Orakhelshavili, Peremptory Norms in International Law
(Oxford University Press: Oxford, ), - says the right of peoples to self-determi-
nation is undoubtedly (emphasis added) part of jus cogens but he concedes that there are
other views, , fn .
[I have left this in but I concede that it is an enigmatic sentence. CW.]
64 II. Kosovos Unilateral Declaration of Independence
In the second place, as noted above, the exercise of the right of self-determination
has several aspects, one of which is securing the status of a sovereign independent
State, and it is the case that such a right is not a jus cogens right. In other words, the
right in principle to be independent is not a right vested in each and every peoples
or nation, colonial entities excluded. As noted above, there are restrictions on an
unqualied right of independence which are obvious from certain provisions of the
UN Charter. As noted above, Article 1(2) refers to the principle of equal rights and
self determination as a basis for developing friendly relations among nations, the a
contrario interpretation being that if friendly relations among nations are somehow
jeopardised, then the principle of self-determination ought not to be applied, or ap-
plied extremely restrictively. Similarly, Article 55 stipulates that with a view to the
creation of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations based on the principle of equal rights and self-
determination of peoples, the UN is obliged to promote [international economic
and social cooperation] and goes on to identify the techniques whereby this can
be carried out, but the latter need not be scrutinised here. It suces to state here
that international peace and tranquillity are in the Charter higher goals than self-
determination.34
Thirdly, every colonial entity or non-self-governing entity has in principle the
right to be independent of the metropolitan power, provided of course there is a
valid expression of a wish for independence by the permanent inhabitants of the
territory in which statehood would be achieved. In other words, metropolitan pow-
ers cannot be heard to claim that granting independence to such entities will lead
to severe international friction and hence it is a proposition which ought not to be
entertained. This is evidenced by the fact that under the Declaration on Principles
of Friendly Relations:
The territory of a colony or other non-governing territory, has, under the Charter of the
United Nations, a status separate and distinct from the territory of the State administer-
ing it; and such separate and distinct status under the Charter shall exist until the people
of the colony or non-self governing territory have exercised their right of self-determina-
tion in accordance with the Charter, and particularly its purposes and principles.
[Likewise this paragraph, where he seems to run together questions of who holds the
right of self-determination with ones of the putative status of the rule conferring such
right, whether or not it is jus cogens. CW].
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 65
ii. A denite claim, linkage or occupation of the peoples with a core tract or tracts of
territory;
iii. A denite, pronounced wish for self-determination as described above in the vari-
ous forms of self-determination (and which may, perhaps, now be formulated as a
response to the deprivation of fundamental political and human rights);35
iv. Serious, sustained and substantial evidence of the pronounced wish for self-deter-
mination as established or substantiated by way of plebiscite or some other process,
preferably endorsed or supervised by the United Nations;36
v. Where the ful lment of the above conditions is satised, the exercise of the right is
not inconsistent with other principles and purposes of the Charter of the United Na-
tions and of international law in general, including:
a. Being incompatible with other aspects of self-determination, such as dividing
the territory of a people;
b. Following upon or being in the implementation of policies of gross and system-
atic violation of human rights, such as the Bantustan policy of South Africa and
the UDI of the authorities in Southern Rhodesia;
c. Carrying a threat of destabilisation of a region by compromising the territorial
integrity of a state or states, such as the Kurdish claims to a state on the terri-
tory of several states in the region;
d. The establishment of puppet state or dependent authorities following a use of
force, such as Manchukuo or the Turkish Republic of Northern Cyprus.37
was no suggestion that Serbia had abandoned its title or was otherwise estopped
from asserting it.
ii. The territory of Kosovo was of great historical signicance to the Serbian people and
formed an integral part of the idea of Serbian nationhood, by reason of its historical
connotations and its continued signicance to the Serbian Orthodox Church.
iii. There was an established sense of group identity of the Kosovar Albanians which
had been reiterated with great vehemence in the light of active Serbian hostility to
the Kosovars, following the death of Tito and the disintegration of the SFRY. The
sense of identity had been strengthened by the post-Second World war movements
of Albanian Kosovars from the rest of Serbia to Kosovo and of Serbs from Kosovo
to elsewhere in Serbia. It was heightened even further by discrimination against and
ill-treatment of Kosovars by Serbs, especially after Miloevis intervention in 1989
and associated changes in the formal status of Kosovo within the SFRY.
iv. There was an historic link between Albanian Kosovars and the territory of Kos-
ovo, even if the demographic changes had altered the balance between Kosovars
and Serbs there. In Yugoslavian constitutional terms and in Serbian political dia-
logue, the Kosovars were not, though, a people entitled to an enhanced status of
autonomy, like the people of the Federal Republics, but were part of a foreign nation
Albanians and, as such, (only) a minority in Serbia.38
v. The Kosovars, though, did consider themselves a people (peoples), entitled to inde-
pendence from Serbia and the two political parties which formed the new coalition
Government in February 2008, the Democratic Party of Kosovo and the Democratic
League of Kosovo, had always been publicly committed to independence from Ser-
bia.
vi. The Kosovars had waged a guerrilla war against the Serbian authorities since 1996,
partly in defence of the Kosovars against violence from the Serb authorities and
partly in pursuit of independence. The insurrection was vigorously resisted by the
Serbian authorities, who refused to countenance independence for the territory of
Kosovo, to which they attached such political and cultural signicance.
Tim Judah, Kosovo: What Everyone Needs to Know (Oxford: Oxford University Press,
), -.
[I should distance myself from this conclusion. The Kosovars were not a colonial people
or a group otherwise entitled to external self-determination in the UN sense of that
term. Self-determination in the special circumstances of the disintegration of the SFRY
had been relied upon by the Badinter Commision and it was clear that the Commis-
sion did not regard the Kosovars has having a right of self-determination. Professor
Kaikobad did not go on to consider the matter of remedial secession in any detail (and
and the ICJ in the Advisory Opinion not at all), but see my postscript on the Advisory
Opinion below. CW].
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 67
inconsistent with the principles and purposes of the United Nations and with gen-
eral international law, especially if it were to be exercised to create a new State of
Kosovo against the wishes of Serbia.
i. Indirectly, the situation in Kosovo resulted from the use of unauthorised armed force
against the Federal Republic of Yugoslavia, March-June 1999. To have given eect to
any claim of statehood following from that unlawful act might have conicted with
the principle of non-recognition of changes brought about by force.40
ii. The existing of a state of animosity, hostility and distrust between Kosovo and Ser-
bia, which aected the stability of the whole region, would be perpetuated by the
existence of a state of Kosovo, consequent upon the deprivation of Serbias title to its
territory.
iii. Furthermore, a successful bid for independence by the Kosovars would be taken as
a model and inspiration for other groups aspiring to secede and become another
source of instability. Instances included Hungarian minorities in Romania and Slo-
vakia; the region of Transdniestria in Moldova; the Karabakh mountain region be-
tween Armenia and Azerbaijan; and possibly Vojvodina in Serbia itself.
iv. Major power involvement had had decisive eects on the situation in Kosovo, not al-
ways in a consistent way, either in terms of unity of the major powers (NATO states
were strong proponents of a separate state of Kosovo, Russia was the strongest sup-
porter of Serbia in resisting this) or in terms of consistency from dispute to dispute
(NATO states resisted independence for Abkhazia and South Ossetia from Georgia,
whereas Russia was a rm supporter of these enclaves and recognised them as states
after the ghting in 2008). The prevalence of double standards on the status of se-
cessionist entities created uncertainty and left space for the vagaries of politics on
matters fundamental to the peaceful ordering of international relations. Conceding
statehood to Kosovo would be presented as manifestly a politically inspired event,
which others, seeking to rely on similar demonstrations of political and military
force would seek to emulate.41
v. There are questions about the long term viability of Kosovo.42 Its economy is weak
and, though it aspires to closer relations with the European Union and ultimately to
become a member, the disputes about Kosovos status would not make this process
a straightforward one. It is geographically disadvantaged because of its land-locked
[I am surprised that he puts the matter so mildly, given the strength of his view that
unlawful resort to force may not result in changes of status or title to territory. CW].
[He referred here also to the Turkish Republic of Northern Cyprus and the Serb areas of
Croatia and Bosnia-Herzegovina but with no indication of how he was intending to use
them in his argument. CW].
This situation was acknowledged in the Report of the Special Envoy of the Secretary-
General on Kosovos future status, UN Doc. S// ( March ) which pro-
posed supervised independence for Kosovo and the Comprehensive Proposal for the
Kosovo Status Settlement (The Ahtisaari Plan), UN Doc. S// Add. ( March
).
68 II. Kosovos Unilateral Declaration of Independence
situation a circumstance which, combined with its ethnic links, may make it dicult
for Kosovo to maintain de facto independence, whatever the position de jure.43
vi. The possibility of further ethnic cleansing within Kosovo on both sides cannot be
discounted. The capacity and willingness of the Kosovo authorities to protect Ser-
bian religious sites is not certain. The return of refugees and displaced persons as
envisaged by Security Council resolution 1244 is proceeding only by the slowest in-
crements.44 For these reason, the capacities of the Kosovo authorities will have to be
supplemented by external forces (EULEX and KFOR), capable not only of enforcing
proclaimed standards but of having an independence which might secure the con-
dence of all sides.
vii. Although the Ahtisaari Plan and the UDI refer to the situation Kosovo as sui generis,
it will be impossible to prevent for other aspiring secessionist groups from identi-
fying their own situations with that in Kosovo and in having some states at least
accepting their claims and recognising them. It is particularly concerning that situ-
ations brought about by unlawful uses of force may gain legitimacy by the passage of
time brought about by the obduracy of those who stand to gain from the illegal act.
viii. Most seriously, the UDI does not appear to be compatible with Security Council
Resolution 1244, which all parties agree is still in force. The resolution provides only
for an interim solution to the situation in Kosovo and, manifestly any nal solution
requires the imprimatur of the Council. Furthermore, the Provisional Institutions of
Kosovo which participated in the UDI are creatures of Security Council-mandated
organs (principally UNMIK), which could not confer on them powers incompatible
with resolution 1244, as the UDI is in seeking to establish a nal solution to Kosovos
status unilaterally and contrary to the territorial sovereignty of Serbia. The concern
here is, in common with the unauthorised bombardment of Yugoslavia in 1999, that
the NATO states remainder the Security Council when it will not bend to their will.
It is, of course, an attempt to circumscribe the eect of the veto and is contrary to
the law of the United Nations.
Para . of the Ahtisaari Plan precluded union of Kosovo with any other State. The UDI
does not make a specic commitment to the same eect.
SC Res. , UN Doc. S/RES/ ( June ), para .
ICJ paras - ( June); ILC Articles on the Responsibility of States for Inter-
nationally Wrongful Acts , Article ().
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 69
i. There has been a breach of a major fundamental principle of international law, but
not necessarily of a jus cogens rule).
ii. The breach has resulted in the creation or perpetuation of some sort of territorial
regime, situation, rights or institution;
For practice, see James Crawford, The Creation of States in International Law (Second
Edition, (Oxford: Oxford University Press, ), - and -.
Arnold McNair, The Stimson Doctrine of Non-Recognition, British Yearbook of Inter-
national Law () and generally, Robert Langer, Seizure of Territory (Princeton:
Princeton University Press, ).
For example, Article (), UN Convention on the Law of the Sea, claims of
sovereign rights in the International Seabed Area.
[These last couple of sentences are my interpolation. Professor Kaikobad had, it seems, a
narrower idea in mind or, perhaps, this more restricted notion was all he needed for the
present discussion. CW].
70 II. Kosovos Unilateral Declaration of Independence
iii. The breach itself might have been the responsibility of a state, an international or-
ganisation, an entity claiming to be a state or all or some of them; exceptionally, the
breach may also be carried out by other non-state, non-governmental organisations
and corporations.
iv. The territorial rgime must be created, perpetuated, maintained or sustained di-
rectly or indirectly by entities identied in (iii) above
v. Non-recognition may be an individual act or response by other state(s) or follow
upon a decision of an international organisation.
vi. A policy of non-recognition may be implemented by an international organisation
with respect to matters which lie within its competence.
[I put these examples as they appeared in the original. It does not seem to me that all fall
within the concept of non-recognition which either of us has outlined. CW].
SC Res. and (note these are Chapter Six resolutions), UN Doc S/RES/ (
November ) and UN Doc. S/RES/ ( May ).
SC Res. (but not characterised as an act of aggression), UN Doc. S/RES/ ( Au-
gust ).
For example, the European Court of Human Rights, Loizidou v Turkey (Merits), []
No./, para. .
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 71
tional organisations not to recognise the annexation directly or indirectly.54 The Se-
curity Council did not condemn Iraqs invasion as aggression, although it recognised
Kuwaits right to self-defence in Resolution 661. The annexation was not recognised
by any state and courts in some states refused to take cogniscance of acts of the Iraqi
authorities in Kuwait, relying on the Security Council decisions rather than general
international law.55
Whether or not a use of force was lawful, the assumption of control of territory
of another state is governed by the law of belligerent occupation and the status of
occupied territory may not be determined by the occupant unilaterally. Thus, the
Security Council decided not to recognise the alteration of the status of East Jeru-
salem (its annexation and incorporation into Israel) and called upon states to accept
this decision.56
violations and, of course, implying that the title to that part of its territory of the pre-
ceding sovereign would be lost or invalid. For all the vehemence with this claim has
been made, with the exception considered immediately below, there are no examples
in practice to support it.
The exception is governmental systems in which a racial minority exercises po-
litical power within the state in a way which this discriminates against the majority
denied access to political power. Apartheid, as it was practised in southern Africa,
is the paradigm. The extension of the essence of the apartheid system to Namibia
(South West Africa) resulted in action by the Security Council against South Africa
and led to the Namibia Advisory Opinion by the ICJ, which laid down elements of
the non-recognition obligation based on general international law, as well as the
Councils decision. The racially discriminate system of the UDI authorities which
took power in Rhodesia in 1965 belongs to the same class. As far as the latter was
concerned, the Security Council determined that the UDI was without legal eect
and called upon all States not to recognise the Southern Rhodesian authorities or to
have any diplomatic or other relations with it.59
was a response of sorts not dissimilar to the operation of non-recognition (but here
of the government, not the state itself). The political aspects of the situation were so
overwhelming that it is impossible to discern from this single case a clear under-
standing of states that a legal obligation to act as the Assembly did was involved.
In what might seem to be a clearer case, the suspension or expulsion of a state as a
response to the serious violation of the law, it is harder to see the positive action that
this would involve the application of the non-recognition principle. Furthermore,
there are no instances of either of these processes involving the UN. The constitu-
tional instruments of international organisations ordinarily refer to the suspension
of expulsion of states, rather than the denial of privileges to governments.
What is clear, though, is that there are legal factors involved in the non-recogni-
tion principle, as there are, of course, in relation to statehood and title to territory.
This raises the possibility of international legal proceedings 62 to determine the mul-
tiple questions which might arise in a single instance where the non-recognition
principle is invoked. In contentious cases, the ICJ has decided cases involving al-
legations of serious breaches of fundamental rules of international law.63 It has also
taken on questions of statehood and identity, recently not entirely with coherent
outcomes.64 The ICJ made vital remarks about the non-recognition principle in the
Namibia Advisory Opinion.65 On 8 October 2008, the General Assembly referred
the matter of the UDI of Kosovo to the ICJ for an advisory opinion.66
It is not possible here to investigate unilateral practice on non-recognition, where
considerations of policy have quite as great an impact as matters of legal obligation,
save to draw attention to one possibility open to a state which nds itself the vic-
tim of acts of other states which recognise situations that it regards as unlawful (or
to which are political anathema to it). The chief examples of this phenomenon are
the Hallstein Doctrine as practised by the government of West Germany, follow-
ing which the government would not maintain diplomatic relations with any state
which recognised East Germany. The policy was followed from 1955 until 1970, as a
political practice rather than as the response to a breach of any legal obligation by
the recognising state. Although complicated by uncertainties about the exact claims
made on either side, the attitude of China to Taiwan is another example of a state
seeking to use its political resources to maintain its own position over the status of
a piece of territory. China has terminated its diplomatic relations with states which
themselves have elevated their own relations with Taiwan to a diplomatic level or
which have entered into relations with Taiwan (such as the supply of arms) of which
China disapproves. Again, this is a political exercise, though China does base its
claims on having legal title to the whole of the territory of China, including Taiwan,
thus making the establishment of diplomatic relations a breach of its rights. Here,
though, China is claiming that other states should not recognise Taiwan or establish
diplomatic relations with it because it does not have the characteristics of statehood,
not because there is some imperative of non-recognition following from a breach of
a fundamental rule of international law.67
representatives claimed a right to statehood. There had been breaches of some major
rules of international law which aected the legal and factual situation in Kosovo
on this date. Armed force had been used against Yugoslavia by NATO states, con-
trary to international law and had resulted in the withdrawal of Serbian forces from
Kosovo and the beginning of the interposition of international forces there. The fu-
ture mandate of these forces was governed by Security Council Resolution 1244,
which regularised their presence for the future but the resolution was silent about
the use force before it was adopted. The references to Serbias continuing sovereignty
over Kosovo in Resolution 1244 and its annex follow upon the resort to force against
Serbia by the NATO states, as did Serbias acceptance of the terms of Resolution
1244 and the presence of KFOR troops on its territory. The armed action by NATO
against Yugoslavia had been prompted by serious war crimes and human rights vi-
olations committed in Kosovo, predominantly by Serbian forces against Albanian
Kosovars (though not without some similar activity by Kosovars against Serbs in
Kosovo). Criminal proceedings were brought at the ICTY against defendants from
both sides, some of whom were convicted of oences within the jurisdiction of the
Tribunal (not including genocide).69
Ordinarily (i.e. in the absence of Resolution 1244), the question of Kosovos state-
hood would have been assessed in the light of the ordinary criteria of statehood,
in particular, whether or not the secessionist authorities had been able to make ef-
fective their claim to be independent as against any contrary claim by the original
sovereign. Participation by a foreign state in securing any eective control in the se-
cessionist territory would usually be enough to prevent the acquisition of statehood
(because of the necessary interference with the territorial rights of the sovereign),
save where there was consent by the previous sovereign, a fortiori if the intervention
was a use of force. It is possible that two versions of the right of self-determination
might inuence the application of the ordinary law. Kosovo might say that it had a
right of external self-determination (say, under the Badinter principles which ap-
plied to the disintegration of Yugoslavia) or that it had a right of remedial secession,
given the severity of the human right violations by Serbia, violations which were
likely to continue if Serbian sovereignty were restored.70 Further, it could have been
said that the external presences in Kosovo were not unlawful interventions (as in-
deed they were not), so that any control acquired by the Kosovar authorities as a
result of these interventions could contribute to the establishment of statehood. The
argument needs a further step Resolution 1244 was admittedly still in force but
it provided only for an interim solution to the status of Kosovo: what was claimed
here by the Kosovar authorities was a nal solution (not expressly excluded by 1244
(of course!)).
For Resolution 1244 might have been seen to have the directly opposite eect.
So long as it remained in force, there could not be any nal solution to the status
of Kosovo. What is more, any organs and forces established or authorised by the
Security Council were entitled to act only in ways compatible with Resolution 1244.
These bodies of limited competence included the Provisional Institutions of Self-
Government of Kosovo, the bodies which appeared to have issued the UDI71 and
which certainly appealed to their elected status under the operation of Resolution
1244 as the source of their legitimacy.72 There is an even broader consideration
could the Security Council have lawfully conferred upon bodies it created the power
to deprive a member of the United Nations of part of its territory?
It is not possible here to answer these questions in full detail but simply to reiter-
ate the conclusion set out above (under the umbrella of which fall all the other issues
to be decided), that, so long as Resolution 1244 remains in force, there are interim
arrangements for the status of Kosovo in place under a resolution which is binding
on all States. While this resolution is not expressly directed to the Provisional In-
stitutions73 (which were not in existence when the resolution was approved), those
institutions were created by bodies established under 1244 and could not be given
powers to act incompatibly with the terms of 1244, which provided only for autono-
mous self-government for Kosovo and not for Statehood. The consequence is, to the
extent that the Provisional Institutions (bodies with a degree of international per-
sonality) are associated with the UDI, their acts are nullities in international law.74
To the extent that the UDI might be the act of a body or bodies without international
status, it is irrelevant to determining the present legal status of Kosovo. Accordingly,
it could be argued that:
i. there is a duty upon all member states of the United Nations not to recognise Kosovo
as an independent state, at least until the International Court has rendered its ad-
visory opinion, either because the facts which would go to establish statehood have
been established in breach of Serbias territorial sovereignty, at a time when Serbia
had no legal right to defeat these moves or because the bodies which made the claim
of statehood and which supported the Kosovar authorities in making and protect-
ing this claim had no right in international law to do so (because the actions were
incompatible with resolution 1244);75
ii. Those states which have recognised Kosovo as an independent sovereign State (then,
69 member states) are in breach of international law insofar as they have intervened
in the internal matters of Serbia.76
The situation is in the same category as that of Biafra, when ve States recognised the
statehood of Biafra while Nigerian was still making eorts to assert its own authority.
Nigeria objected to these acts of recognition. See Ijalaye, Was Baifra at any time a
State in International Law? American Journal of International Law (): .
Danesh Sarooshi, The United Nations and the Development of Collective Security (Ox-
ford: Clarendon Press, ), Chapter ; Erika de Wet, The Chapter VII Powers of the
Security Council (Portland: Hart, ), Chapter .
Rudolph Bernhardt, Article , in The Charter of the United Nations, ed. Bruno Sim-
ma, Second Edition, (Oxford: Oxford University Press, ), -, para..
78 II. Kosovos Unilateral Declaration of Independence
power to determine that the territory of Kosovo be severed from Serbia and a new
state established there.79
As against the above, it can be argued that there is no power or right vested in the
Council to lead the process of independence on the basis of the following:
evidence of the wish of the peoples of Kosovo for independent statehood. That state-
hood, the UDI asserts will be of a multiethnic entity with full protection against the
international standards dictated in the Ahtisaari Plan for individuals and minorities
within the State. This unilateral commitment might be relied upon by any state later
concerned that Kosovo was not living up to the promises in the UDI.
ii. Against this, it would be maintained that the Badinter Commission had considered
Kosovos claim for independence and rejected it because of the insuciency of its
constitutional status in the SFRY. Indeed, the Commission had declared the proc-
ess of change in Yugoslavia at an end. Neither the creation of the new state of the
Federal Republic of Yugoslavia (Serbia and Montenegro) nor the later separation of
Montenegro from that state had been subjected to the supervision of the Badinter
Commission against the standards laid down in the original EU prospectus for post-
SFRY States.
iii. Whatever solution is adopted for the status of Kosovo at present, it would certainly
threaten international peace and security in the region, if there were not a substan-
tial commitment from outside forces to help preserve the peace. Kosovo is too fragile
to survive as a state; Serbia is too strong to be restrained from trying to reassert its
authority de facto that formal commitments and actual force (which required Secu-
rity Council sanction) are essential. Ahtisaari talked of the international supervi-
sion of Kosovos independence, which, arguably, stopped short of statehood in the
accepted sense.
in breach of its obligations to maintain the status quo in terms of sovereignty status
in Kosovo;
ii. By tolerating the assertion and assumption of power by Kosovo authorities, UNMIK
has failed to carry out or abdicated its responsibilities vested in it by Resolution 1244,
the source of all its authority;
iii. The assumption of power by the Kosovo Assembly has seriously frustrated UNMIKs
ability to be the main governing international body, a fact acknowledged by the UN
Secretary-General in his report on UNMIK, June 2008 for the Report of November
2008: paragraph 21 states that the Special Representative is, unable to enforce his
authority.81
iv. Paragraph 19 of Resolution 1244 provides that UNMIK and KFOR shall, after an
initial 12 month period, continue thereafter unless the Security Council decides
otherwise. In the light of paragraph iii above, this constitutes a long term problem
because the international civil presence will increasingly be rendered an anachro-
nism in Kosovo, unable to carry out its functions but with the Council unable to
agree on its termination.
v. UNMIK may well nd itself in all sorts of diculties if the International Court pro-
vides an opinion which states that the Declaration of Independence was/is unlaw-
ful in terms of international law. Although not bound by the opinion, the Security
Council and its bodies can hardly be openly deant and ignore the International
Courts pronouncements which have never been disrespected by the main bodies of
the Organisation.
UNMIK or otherwise, to arrest the development of any situation which would result
or has resulted in Kosovo eectively seceding from Serbia.
own sovereignty over the territory of Kosovo remains, at least pro tem. An advisory
opinion that the UDI is not compatible with international law would reinforce its po-
sition (though Serbia would doubtless reject a nding to the contrary as not binding
upon it). Serbia has resisted suggestions that it should try to nd an international fo-
rum to test directly the sovereignty question (and the recognition decisions of those
States which have recognised Kosovo). It is precluded by its own commitments, the
eect of resolution 1244 and perhaps even general international law from using force
to reassert its authority in Kosovo. Its economic alternatives are limited, especially
given that it has similar aspirations to Kosovo about its future economic links with
the EU. It is still the case that only a minority of states have recognised Kosovo and
Serbia will still claim the right to exercise the extraterritorial powers of the state
with respect to Kosovo so long as recognition practice remains as it is it may
have opportunities to do this. What everyone waits for now is the Advisory Opinion
to see if the ICJ is possessed of such wisdom that it can nd in the law the way to
make a positive contribution to preventing the Kosovo situation joining the cata-
logue of frozen conicts which hold so much latent dangers for international peace.
The identity of those persons or which bodies had made the UDI was a highly contro-
verted matter, on which the Opinion eventually turned, see below.
I was an adviser to the Government of Cyprus in the preparation of its intervention in
the Advisory Opinion. Nothing that I have said in this paper should be taken to repre-
sent the views of the Government of Cyprus and I have not relied on anything not in the
public domain in writing it. Equally, unlike what has gone earlier in this paper, any opin-
ions here are my own and are not estimates of where Professor Kaikobad would have
stood. I do think, though, that he would have shared some of my reservations about the
Opinion.
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 83
[T]he declaration of independence of Kosovo adopted on 17 February 2008 did not violate
international law.
Which might (or might not) be an answer to the question which the Court had set
itself.
The Court had acceded to the argument of those who said that the UDI was not
the work of the PISG.86 If they were right, then, of course, there was no question for
the Court to answer (and it is not suggested that the Court should have answered
another question which, it might have speculated, was the one which the Assembly
had intended to ask. There is a serious evidential dispute about the Courts nd-
ing, which does imply an extraordinary degree of ignorance or misunderstanding
of those states which voted in favour of Resolution 63/3 but I shall not get into this
matter here.87
Once the Court had reached this decision, it seems clear to me that it should have
said very little more. It was quite unnecessary to consider the preliminary questions
about whether or not the Court was competent to answer the reformulated question
and, if competent, whether or not it should have exercised its discretion to decline
to provide the advice sought. The question, as the Court understood it, did not raise
an issue of international law at all and, since it is only questions of international law
which the Court may determine, its role was functus ocio. It ought to have said
only that international law was quite indierent to the accordance or otherwise of
the UDI with international law, since international law did not apply to the act which
was the object of the proceedings. Thus understood, the UDI had no relevance to the
The Opinion was given on July . Since then, at the time of writing, only three
more states had recognised Kosovo, bringing the number that had up to .
Kosovo (Advisory Opinion), ICJ paras.- ( July).
See Vice-President Tomka, Declaration, Kosovo Opinion, paras. -.
84 II. Kosovos Unilateral Declaration of Independence
status of Kosovo or to the validity of any consequential actions by other States (such
as recognition) or international organisations (such as admission to membership).
Kosovos status would have, as it still does, continue to be a concern of the Security
Council, so long as Resolution 1244 remained in eect (and, to the extent that it was
competent, to the General Assembly). General international law would have gov-
erned any other matters outside the scope of Resolution 1244, in so far as any action
was permissible, taking Resolution 1244 into account.
The Court could not, though, live with its own logic. It did assess whether the
UDI (as a claim of secession) was compatible with general international law. In a
curious reliance on the Lotus principle, it found that there was no rule of general
international law which prohibited the secessionist claim, so that there was no gen-
eral proscription of the UDI.88 Then, the court decided that the lex specialis of the
situation in Kosovo, Security Council Resolution 1244, did not bind the Kosovars
not to act incompatibly with its terms, so that the UDI was in accordance also with
the particular legal rgime which applied to Kosovo, again, in accordance with a
law which did not apply to it. The Court made no attempt to explain the limits of
its original determination of the identity of the authors of the UDI, nor to explain
that anything they said (or, indeed, that the Court said) could have no bearing on
the status, especially the statehood of Kosovo. Of course, the Kosovars said that the
nding of accordance meant that the claim to statehood in the UDI was lawful by
international law and some states which had recognised Kosovo as a state claimed
legal sanction for their actions on the basis of the Advisory Opinion.
There is something of a hiatus in the Opinion, for the Court acknowledges that
particular UDIs have been condemned by the Security Council (though not Koso-
vos, of course). The Court puts entire emphasis on the decisions of the Council,
while at the same time pointing out that the situations in which the Council had
acted involved, egregious violations of international law, rather than their unilat-
eral character. However, neither the norms on which, egregious violations of in-
ternational law, are founded, nor the establishing of any violation is a matter on
which the Council speaks with authority but assuming coincidence of the Coun-
cils position and a proper analysis of the law, then it would seem that the acts of
non-state actors might sometimes be susceptible to assessment against international
legal standards.89 However, when it came to assessing the conduct of the authors of
the UDI against the provisions of Resolution1244 and decisions taken under its au-
Kosovo Opinion, paras. -. Of course, as, at the time of the UDI, a non-state actor or
actors, the authors of the UDI did not benet from the Lotus principle. The Opinion is
unsophisticated on the legal categories applicable not only rights and duties but also
privileges and validity of legal acts were relevant to a full examination of the issue before
it, see partly, Judge Simma, Declaration Kosovo Opinion.
The Security Council has declared acts of non-state actors without legal eect in cir-
cumstances where it is not possible to trace their de facto capacity to act back to a state
responsible for a breach of international law, e.g. the UDI authorities in Rhodesia, SC
Res. , UN Doc. S/RES/ ( November ); (cf. Turkish Republic of Northern
Cyprus, SC Res. , , UN Docs. S/RES/ ( November ) and S/RES/ (
May ).
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 85
thority, the Court found that, acting in their unocial capacity, the Kosovars were
not the object of any part of the Security Council Resolution and that their collective
powers were not inhibited by it.90 The Court invoked the absence of any response by
the SRSG and UNMIK to the UDI. It is a good question why there had been none
and it is testimony to the utterly undeveloped public law of international organisa-
tions that there is no avenue of accountability of the Resolution 1244 organs for the
performance of their functions.
The Court did not make any remarks about the sui generis nature of the Kosovo
situation, to which the UDI refers and about which several intervening states made
much of, which makes it even more likely that the Opinion will be called in aid by
other secessionist groups and their supporters. Nor did the Court have anything
to say about self-determination, especially remedial secession, which had gured
prominently in the submissions to it. This was perhaps as well because more and/or
dierent states might have chosen to intervene if it had been clear that this was an
issue which the Court was going to address.
In the light of the insignicance of the nding of the ICJ in the advisory opinion
after full submissions and hearings on the merits, it would be worth considering
whether to introduce into the Courts procedures for determining advisory opinions
an option similar to that for preliminary hearings in contentious cases.91 It was clear
after the rst round of written submissions that the authors of the UDI and several
states took the position that the General Assembly had asked the wrong question
(or that the question which it had asked was based on a misconception). That was
the time at which the matter ought to have been resolved. Not only the interests of
judicial eciency would have been served if this possibility had been available but
it might have been the case that the true purport of what the Court had decided
would have been apparent and the potential for its misrepresentation would have
been limited.
It bears repeating that the Advisory Opinion has nothing to say about the legal
status of Kosovo or about the legal characterisation of states which had recognised
Kosovo as a state before the Opinion was given.92 It is hard to see what the Assembly
could usefully take from the Opinion. Its resolution at the end of the 64th session
commends Serbia and the Kosovo authorities to further negotiations but, while both
seem willing to talk indirectly, neither is willing to take part in any process which
would undermine its fundamental position.
Kosovo Opinion, paras.-. The most obscure parts are in paras. and , where
the Court says that the authors of the UDI did not intend to operate within the legal
order provided by Resolution but outside that order [where, then?] and that reso-
lution and the UDI operate on dierent levels [dierent levels?].
See Anthony Aust, Advisory Opinions, Journal of International Dispute Settlement
(): -.
This conrms the reservations which some states expressed in the debate in the Gen-
eral Assembly of the request for the Advisory Opinion about the utility of doing so,
but for quite dierent reasons than then imagined, e.g. United Kingdom, A//PV. (
October ), and .
Chapter 3 From Province to Protectorate to State:
Sovereignty Lost, Sovereignty Gained?
MORAG GOODWIN*
1 Introduction
The province of Kosovo 2 million people in 11,000 square kilometres of territory
nestled between Serbia to the North and Albania and Macedonia to the South
was thrust into the international limelight when Serbian actions to repress Kosovo
Albanian calls for autonomy made it a subject of international concern at the end of
the 1990s. Although Kosovo claimed independence in September 1991, the Badinter
Commissions insistence on maintaining the existing borders of the federal repub-
lics of the dissolving Yugoslavia suggested then that the topic of Kosovo was likely
to depart the international agenda as quickly as it had arrived.1 Yet while Kosovo is
not unique in becoming well-known for suering the repressive actions of a parent
state, and while it has not even enjoyed the distinction of being the only territorial
administration of its time,2 its potential impact on the fundamental doctrines of
international law means this small would-be state has found itself at the centre of
international legal concerns for over a decade.
On a number of levels, the international communitys response to the situation
created by Miloevis actions and NATOs intervention threaten to call pillars of
the post-World War II order into question. For example, while it remains too early to
come to any conclusion on whether NATO action in Kosovo sans Security Council
approval in some measure paved the way for an emerging doctrine of humanitarian
intervention, it seems not implausible to suggest that the apparent success of unau-
thorised military intervention in Kosovo in stopping mass human rights violations
* This chapter is a revised and much extended version of a paper published in the German
Law Journal Special Issue, What Future for Kosovo? (). That paper benetted
considerably from the comments of Bernhard Knoll, Jason Beckett and Euan MacDon-
ald; my thanks to them again.
Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. ,
January ; International Legal Materials (): .
See Bernhard Knoll, The Legal Status of Territories Subject to Administration by Inter-
national Organisations (Cambridge: Cambridge University Press, ) for an overview.
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 87-108.
88 II. Kosovos Unilateral Declaration of Independence
If SC Resolution 1244 did not resolve the status of Kosovo, and given the ab-
sence of both a follow-up resolution and Serbian consent, how is it that a third of
the international community,6 as of September 2010, believe Kosovo to have gained
independence? In other words, what mechanism or power within the international
legal order exists that can sever Serbias sovereign rights over the territory of Kosovo?
2 Sovereignty Lost?
In adjudicating upon the claims that came before it in the early 1990s, the Badint-
er Commission relied heavily upon the principle of uti possidetis in determining
which entities had the right to self-determination and which did not. Although their
pronouncements were not without controversy,7 the members of the Commission
armed the continuing relevance of uti possidetis to the post-colonial order and
thereby the centrality of the principle of territorial integrity. Their assumption has
been supported by the Court in the Kosovo case. It is a (more or less) settled point of
international law therefore that for borders to change, the agreement of all parties is
necessary.8 However, the numerous statements recognising Kosovan independence
in response to the Declaration of Independence have studiously avoided the issue of
the severance of Serbias sovereign rights.9 Yet if those states that have recognised
the Republic of Kosovo are not to have breached international law in the act of pre-
mature recognition, they need to advance a legal account of how it is possible that
Serbia has forfeited its sovereignty.10 This section considers possible legal grounds for
the loss of sovereignty.
There are a number of paths one could take to make the case for a loss of sover-
eignty; three shall be considered here. The rst is that of the purported right of self-
determination belonging to the people of Kosovo. The second relates to the principle
of eective control. The third concerns the powers of the Security Council. None,
I shall argue, is particularly convincing. The section will nish by looking briey at
other grounds put forward in the proceedings before the Court. They, too, I will sug-
gest, are unpersuasive.
Declaration on Friendly Relations, note above; see also Reference re. Secession of
Quebec, International Law Reports: .
Crawford, note above, .
Declaration on Friendly Relations, note above.
The so-called safeguard clause of the Declaration was repeated, in slightly dif-
ferent language, in the Vienna Declaration. United Nations World Conference on
Human Rights, Vienna Declaration and Programme of Action, June, International
Legal Materials (): .
See for example the Dutch statement before the ICJ: ICJ Public Hearing on the Ac-
cordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Thursday
December , CR /.
Bartram S. Brown, Human Rights, Sovereignty and the Final Status of Kosovo, Chi-
cago-Kent Law Review (): , citing Commission of Rapporteurs, The Aaland
Islands Question, League of Nations Doc. B [C] //, April .
Reference re. Secession of Quebec, note above.
92 II. Kosovos Unilateral Declaration of Independence
Ibid. -, para. .
See Crawford, note above, -; and more recently, Peter Hilpold, Self-Determina-
tion in the st Century: Modern Perspectives on an Old Concept, Israeli Yearbook on
Human Rights (): .
See, for example, Judge A. A. Canado Trindade, Separate Opinion, Kosovo Opinion,
para. ; available at http://www.icj-cij.org/docket/ les//.pdf Moreover, the
recent compromise by Serbia in the UN General Assembly in response to the ICJ Ad-
visory Opinion suggests again a country unlikely to repeat the abuses of the past. See
meeting records for plenary discussion, UN Doc A//PV. ( September ).
See, Montenegro gets Serb recognition, June , http://news.bbc.co.uk//hi/
europe/.stm.
Moreover, such an autonomous regime is accepted by the majority of the Serbian popu-
lation as evidenced by the recent referendum in support of the new constitution, which
includes several articles guaranteeing self-rule for, as well as minority and human rights
within, Voivodina. See Serbia backs draft constitution, October . Accessed
October . http://news.bbc.co.uk//hi/europe/.stm.
See the statement before the Court by Sir Michael Wood on behalf of the authors of the
Declaration; ICJ Public Hearing on the Accordance with International Law of the Uni-
lateral Declaration of Independence by the Provisional Institutions of Self-Governance
of Kosovo, Verbatim Record, Tuesday December , CR /, para. .
Chapter 3, Moorag Goodwin From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained? 93
See, for example, the argument of Albania that remaining a part of a Serbia is an option,
simply not acceptable to the people of Kosovo. ICJ Public Hearing on the Accordance
with International Law of the Unilateral Declaration of Independence by the Provision-
al Institutions of Self-Governance of Kosovo, Verbatim Record, Wednesday December
, CR / , para. . This argument was accepted by Judge Canado Trindade,
note above.
Despite the abuse and mass killing of Kurds in the north of Iraq, the territorial integrity
of Iraq has been repeatedly a rmed by the Security Council whenever it has taken ac-
tion on Iraq and no State has suggested that a threshold of abuse has been crossed in
this case. See, e.g. SC Res. , UN Doc S/RES/ ( March ) or SC Res. , UN
Doc SC/RES/ ( October ).
See, for example, the argument of the German government before the Court: Kosovo is
not a precedent. The case is specic and unique. ICJ Public Hearing on the Accordance
with International Law of the Unilateral Declaration of Independence by the Provision-
al Institutions of Self-Governance of Kosovo, Verbatim Record, Wednesday December
, CR / , .
For a helpful consideration of Kosovo as special, see Warbrick, note above, -.
Without referring to the violence meted out to the Serbian minority, the of the popu-
lation comprised of other groups, such as the Roma, have suered terrible abuse and
continue to suer violations of their basic rights. In this regard, see Claude Cahn, Birth
of a Nation: Kosovo and the Persecution of Pariah Minorities, German Law Journal
(), .
94 II. Kosovos Unilateral Declaration of Independence
For example, in South Africa, Cambodia and various Latin American countries. See the
now classic, Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, );
also Rosemary Nagy, Transitional Justice as Global Project: Critical Reections, Third
World Quarterly (): .
Although the doctrine of eective control was not mentioned specically by any of the
states that appeared in the ICJ proceedings, reference to the ideas it represents arguably
made an appearance in the frequent references to the facts on the ground. See note
above.
Island of Palmas (Netherlands v. US), Reports of International Arbitral Awards ():
.
These four criteria a clearly dened territory, a population, eective government and
the ability to enter into relations with other States have long been held to reect cus-
tomary international law in this area. Montevideo Convention on Rights and Duties of
States (), Article , League of Nations Treaty Series : .
Emmerich de Vattel, The Law of Nations or the Principles of Natural Law, vol. (),
; Hugo Grotius, De Jure Belli ac Pacis, volume II, Chapter III, s...; cited in Malcolm
Chapter 3, Moorag Goodwin From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained? 95
For the past decade, eective control over the territory of Kosovo has been exer-
cised not by Serbia but by an international administration guaranteed by the NATO-
led KFOR force. Although eective control in principle refers to the inuence of
other states in undermining eective control, the international administration in
Kosovo is arguably of such a far-reaching nature that it could be understood as sever-
ing Serbian title.40 Under the authorisation of Security Council Resolution 1244, the
United Nations Mission in Kosovo (UNMIK) assumed all legislative and executive
control, including the task of the administration of justice, and was also empowered
to take control of and utilise all nancial assets of the province. UNMIK raised taxes
and issued stamps for use in the postal service it ran; it changed the currency and
replaced the Serbian ag and all symbols of Serbia with UN regalia; it controlled the
borders, issued identity documents and entered into agreements with States.41 Ser-
bias exercise of sovereignty was further reduced by the Constitutional Framework
for Provisional Self-Government, declared in May 2001, which saw responsibilities
in the areas of economic policy, trade, customs, education, health, the environment,
agriculture and infrastructure transferred to Pristina-based institutions.42 The de-
gree and range of governance exercised by UNMIK was such that it is possible to
argue that the international administration created of the province a form of non-
self-governing territory; such a conclusion with the attendant consequences for
consideration of whether self-determination was applicable or not43 would make
the step to protectorate the crucial stage in passing from province to state. Finally, in
the 18 months since independence was declared, it can be argued that Serbia has had
little eective control, if any, over daily life in Kosovo. This last point that of a lack
This is reected in statements of the inability to turn back the clock. See, for example,
the statement by the UK; ICJ Public Hearing on the Accordance with International Law
of the Unilateral Declaration of Independence by the Provisional Institutions of Self-
Governance of Kosovo, Verbatim Record, Thursday December , CR /,
para. .
See SC Res. , UN Doc. S/RES/ ( November ), condemning the, illegal rac-
ist minority regime, of Smith; GA Res. (XX), UN Doc A/RES/ ( November
). More generally, see Crawford, note above, .
Crawford has suggested that the hurried recognition of the Congo can be explained by
an interpretation of government as comprising two elements: the actual exercise of
authority and the right or title to exercise that authority. With regard to the Congo, it
is the latter element that prevailed. However, this was in the context of decolonization
and the uncontested nature of title. See Crawford, note above, -.
See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. (
January ), International Law Reports ; and Opinion No. ( January ),
International Law Reports .
Chapter 3, Moorag Goodwin From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained? 97
One last element suggests the need for caution before interpreting the presence
of an international administration as changing the facts on the ground. Where one
sees the presence of an international administration on the territory of Kosovo as
rooted in the illegal use of force, as opposed to being determined by Security Coun-
cil Resolution 1244,50 then the suggestion that an international administration can
change borders takes on an additional dimension. International law outlawed the
changing of borders by military means in Article 2(4) of the UN Charter. Widely
recognised as a peremptory norm, the Security Council in relation to the situation at
the end of the First Gulf War stressed that, no territorial gains or changes brought
about by violence are acceptable.51 There is thus a strong presumption in interna-
tional law against independence born of military force or military occupation, and
the international community has taken a consistent line in the post-colonial era in
refusing to grant validity to acts committed by illegal force.52 Although it seems
more reasonable to see the presence of the international administration in Kosovo as
stemming from Security Council intervention, the circumstances leading up to the
resolution are nonetheless reason to urge caution in arguing that the loss of eective
control could lead to a loss of sovereignty in this case.
Whether the presence of UNMIK created of Kosovo a non-self-governing terri-
tory, and thereby an entity entitled to the exercise of self-determination, is dicult
to determine at this stage. Certainly if Serbia can lose title because of a loss of eec-
tive control as a consequence of international intervention, it is dicult to see how
Kosovo can claim eective control with the Security Council remaining actively
seized of the situation and the continuing level of control by international institu-
tions. Moreover, the presence of the international administration in the case of Kos-
ovo was mandated by a Security Council resolution that eectively gave guarantees
as to the territorial integrity of Serbia until agreement on the nal status could be
reached. It is thus arguably not possible to view the presence and governance of an
international administration separately from the wording of Resolution 1244, which,
as suggested at the outset, fails to resolve the nal status of Kosovo. In the absence of
As Warbrick highlights, what one denotes as the starting point will determine where we
stand today i.e. whether one takes NATOs intervention or Resolution will deter-
mine whether one sees the use of illegal military force as aecting Kosovan independ-
ence. Warbrick, note above, .
SC Res. , UN Doc. S/RES/ ( September ).
For the application of Article () UN Charter in this regard, see Crawford, note above,
-. According to Crawford, where a state illegally intervenes in and foments the
secession of a part of a metropolitan state other states are under the same duty of non-
recognition as in the case of illegal annexation of territory. Ibid. . The refusal to rec-
ognise the Turkish Republic of Northern Cyprus has been justied by some states, such
as the UK, on the basis of the illegal military intervention by Turkey that established
it. Ibid. . Furthermore, whether or not one views Kosovo as territory occupied by an
international administration authorised by the Security Council, the strict prohibitions
on the transfer of title and people of occupied territories under Section III of Geneva
Convention IV () reect the widespread unwillingness to allow the use of force to
aect title.
Chapter 3, Moorag Goodwin From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained? 99
Among the considerable amount of literature in this area, see Vera Gowlland-Debbas,
The Functions of the United Nations Security Council in the International Legal Sys-
tem, in The Role of Law in International Politics, ed. Michael Byers (Oxford: Oxford
University Press, ), -.
According to the ICTYs interpretation of Article , the provision: provides no limits
on the discretion of the Council to take measure short of force. Prosecutor v. Tadic
(Jurisdiction), , International Legal Materials: .
Reparation for Injuries (Advisory Opinion), ICJ ( April).
100 II. Kosovos Unilateral Declaration of Independence
The Council has certainly used Article 41 to give eect to decisions taken in
pursuit of international peace and security that have had far-reaching eects upon
sovereign rights. It has done so, for example, with regard to declaring illegal territo-
rial regimes that violate norms of non-discrimination on the grounds of race, as in
the decision not to recognise the declaration of independence by Southern Rhodesia
in 1965.56 Where it has the power to declare a declaration of independence illegal,
the Council may be presumed to have the power to pronounce upon the legality of
a given declaration. One could argue that the Security Council, on numerous oc-
casions, has pushed aside the principle of territorial integrity, by altering territorial
boundaries and/or in granting independence to a contested territory, all in further-
ance of international peace and security. For example, the implementation of the
General Assemblys Resolution on the partitioning of Palestine was taken up by the
Security Council under its Chapter VII powers at the request of the Assembly;57 the
Council also established an Iraq-Kuwait Boundary Demarcation Commission in the
wake of the First Gulf War.58 These examples, so it can be argued, were exceptional
situations demanding a far-reaching approach to the maintenance of peace and se-
curity. Kosovo may then belong to this pattern of exceptional situations.
However, there are reasons to hesitate before assigning the Security Council
sweeping powers to sever sovereign ties and alter the geographical landscape. As has
been well rehearsed in the Kosovo proceedings, in an Advisory Opinion of the Court
on the Namibia situation, Judge Fitzmaurice placed rm limits on the powers of
the Security Council, noting emphatically: Even when acting under Chapter VII of
the Charter itself, the Security Council has no power to abrogate or alter territorial
rights, whether of sovereignty or of administration It was to keep the peace, not to
change the world order, that the Security Council was set up.59 Judge Fitzmaurices
concern reects the original understanding that the Security Council was accorded
its powers on the condition that it conne its actions to short-term measures to re-
move a threat to international peace and security; thus, denitive settlements were
to be left to the sovereign parties concerned or to be dealt with by the Council un-
der the non-coercive provisions of Chapter VI.60 Indeed, the question remains as to
whether the Security Council can side-step the non-coercive nature of its settlement
dispute powers by placing such actions under Chapter VII. The drafting of Article
1(1) of the UN Charter appears to make clear that permanent settlements, unlike
enforcement action, must be made in conformity with justice and international law.
The extent to which imposing a permanent alteration of its borders upon a state and
terminating its sovereign rights without its consent are compatible with this and
other provisions of international law, such as uti possidetis, is questionable. Moreo-
ver, were such a far-reaching intervention by the Security Council to be accepted
it would, even in the face of attempts by supporters of independence to see Kosovo
classied as a special case, almost certainly aect both the general scope and nature
of Security Council powers.
Whether or not it is now accepted practice that the Security Council has extend-
ed its powers beyond those originally envisaged at the drafting of the Charter, the
suggestion that the deadlocked negotiations over a permanent settlement entailed
that the situation in the region was untenable under the continuing terms of SC
Resolution 1244, and thus constituted a threat to international peace and security,
seems overly dramatic. It seems highly unlikely that Serbia would have sought to
impose its own unilateral solution by force Serbia has expressly stated that it will
not seek a military solution nor that neighbours would have intervened in a man-
ner that could be interpreted as a threat to international peace and security. Nor did
any gap in the legal regime exist, as SC Resolution 1244 continues to be in force and
under the provisions of the Resolution the Security Council remains actively seized
of the matter.
Yet one of the main justications given before the ICJ by those States that have
recognised an independent Kosovo is that the prospect of further negotiations in
the light of the unlikelihood of an agreed political settlement in the near future
constituted a threat to international peace and security that an independent Kosovo
prevents.61 The only basis for viewing the failure to achieve a permanent settlement
in the immediate future as likely to create instability in the region is that of an antici-
pated violent reaction from a disappointed and impatient Kosovar-Albanian major-
ity. But while a violent uprising in Kosovo against the international administration
the scenario painted in the 2006 International Crisis Group report62 and repeated
by the authors of the Declaration of Independence before the Court63 would indeed
likely constitute a threat to regional stability and thus to international security, it
seems not a little perverse to reward with recognition a community not entitled to
self-determination because they threaten violence against a Security-Council man-
For example, see the statement of France before the ICJ, ICJ Public Hearing on the
Accordance with International Law of the Unilateral Declaration of Independence by
the Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Wednes-
day December , CR /, para. ; also the statement of Bulgaria, ICJ Public
Hearing on the Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Governance of Kosovo, Verbatim
Record, Friday December , CR /, para. .
For an inuential statement that delaying independence was risky because of the likely
outbreak of violence on the part of the Kosovar-Albanian majority, see International
Crisis Group, Kosovo Status: Delay is Risky (Brussels/ Pristina, November ). Ac-
cessed September . http://www.crisisgroup.org/.
ICJ Public Hearing on the Accordance with International Law of the Unilateral Decla-
ration of Independence by the Provisional Institutions of Self-Governance of Kosovo,
Verbatim Record, Tuesday December , CR /, para. .
102 II. Kosovos Unilateral Declaration of Independence
dated international mission. In addition, arguing, as some states have done,64 that
the uncertainty caused by a lack of nality over Kosovos status hinders develop-
ment eorts within the territory and thereby constitutes a threat to regional stabil-
ity would seem to set a woefully low threshold for something so fundamental as the
termination of sovereign rights, and one that such states would almost certainly not
accept were the sovereign rights theirs.
Given the weakness of arguing that the failure to move forward in the wake of the
Ahtisaari Plan constitutes a threat to international peace and security, it is, further-
more, doubtful that a Security Council imposed termination of Serbian sovereignty
would be proportional to the threat posed.65 The phrasing of Articles 40 and 42 of
the UN Charter as authorising necessary measures suggest an intention to limit
the impact of Security Council enforcement measures by the general principle of
proportionality, albeit that the Council is acknowledged to have broad discretion in
its interpretation of what is proportional in the circumstances.
Thus, whether or not the Security Council has the power to alter territorial bor-
ders permanently without the consent of the states concerned, and this authors sus-
picion is that this should be answered in the negative for the reasons suggested, it
would in any case arguably be unreasonable to conclude that the failure to agree in
the short term on a nal status for Kosovo constitutes a threat to international peace
and security of such magnitude that granting independence in contravention of Ser-
bias sovereignty would be proportionate.
See, for example, the statement by the US representative, Harold Koh, that independ-
ence represents the end of a turbulent period, a sort of tidying up; ICJ Public Hearing on
the Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Tues-
day December , CR /, para. .
For the need for Security Council measures to be proportional, see Charter Commen-
tary, note above, .
E.g. see the statement by the authors of the Declaration of Independence; ICJ Public
Hearing on the Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Governance of Kosovo, Verbatim
Record, Tuesday December , CR /, para. .
This argument is explicitly made by, inter alia, Austria; ICJ Public Hearing on the Ac-
cordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Thursday
December, , CR /, paras. -.
Chapter 3, Moorag Goodwin From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained? 103
ICJ Public Hearing on the Accordance with International Law of the Unilateral Decla-
ration of Independence by the Provisional Institutions of Self-Governance of Kosovo,
Verbatim Record, Thursday December , CR /, para. .
Appearing for Cyprus, Vaughan Lowe remarked in regard to the allegedly permissive si-
lence of the UN organs that, if the UN, cannot authorize dismemberment of a State by
express action, it certainly cannot do so by its failure to act. ICJ Public Hearing on the
Accordance with International Law of the Unilateral Declaration of Independence by
the Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Monday
December , CR /, para. .
The situation is arguably similar to that of the ONUC mission to the Congo in , in
which, following a breakdown of consensus among the Council on how to proceed, the
then Secretary-General, Hammarsjkold, acted as he saw t to ensure the ful lment of
the Councils existing mandate. Warbrick, note above, .
104 II. Kosovos Unilateral Declaration of Independence
considered binding upon the parties concerned unless, again, one interprets the
wording of Resolution 1244 as authorising the Secretary-General to play a deter-
mining role in the nal status talks. For the reasons given at the outset of this paper
notably the emphasis on a negotiated outcome that respected both Serbian territo-
rial integrity and meaningful self-government for Kosovo it seems wilful to read
Resolution 1244 as determining that nal status from the outset, or of authorising
the Special Representative to himself determine what that outcome might be.
Ultimately, as Judge Fitzmaurice stated in his dissenting opinion in the Advi-
sory Opinion on Legal Consequences for States for the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), in which the issue of whether approval could be conferred by the non-
action of international organs, as a matter of law it cannot afterwards be claimed
that in reality the proposal was accepted, or at least that it was not truly rejected.
Such pleas are of a purely subjective character, and psychology is not law.71 For
these reasons, it is suggested that we should take the wording of SC Resolution 1244
at face-value.
3 Sovereignty Gained?
The arguments for suggesting a loss of title by Serbia or a Security Council-imposed
or delegated severance of sovereign rights seem to me ultimately unconvincing,
given the fundamental nature of the rights under consideration. Moreover, even if
the Security Council were to enjoy the power to terminate territorial title, it has not
done so in this case.72 Yet some 72 states have recognised an independent Kosovo in
full awareness of their legal obligation to respect Serbias territorial integrity. These
recognising states believe that Kosovo is sovereign or is certainly on the path towards
it.73 If Serbias sovereign rights cannot be severed by the presence of an international
administration and the consequent loss of eective control, and if Kosovo cannot
be understood as a territory entitled to self-determination, the only explanation for
the severance of Serbian title is to found in Kosovos assertion of sovereignty itself. If
Kosovo is sovereign, Serbia should not then be understood as having lost sovereignty
but Kosovo as having gained it.
That territorial sovereign rights must be severable is clear, despite the obvious
legal objections, as otherwise new states could not come into being. As Koskenniemi
noted in his pleading before the Court, in not one of the 200 processes of state emer-
gence of those current members of the international community did the Declaration
of Independence respect the territorial integrity of the parent state.74 This process
the act of claiming and the beginnings of the performance of sovereignty cannot
be contained by and is therefore necessarily outside the legal realm. For as Loughlin
and Walker note in laying out the paradoxical nature of the relationship between
constituent power and constituted order, [t]he legal norm remains subject to the
political exception, which is an expression of the constituent power of a people to
make, and therefore also to break, the constituted authority of the state.75 The asser-
tion of a claim to sovereignty the declaration of the (coming into-) being of a new
constituent power necessarily ruptures the previous national constitutional order
and cannot therefore be dependent upon it, i.e. by requiring its consent.76 The self-
declaration of the pouvoir constituent is therefore always unilateral and the force of
it cannot be contained by law. It is for this reason that international law has little to
say concerning a new claim to sovereignty.
Yet a declaration of independence is, of course, in itself insucient to consti-
tute an entity as sovereign. While sovereignty must indeed be claimed as the self-
declaration necessary to call a people into being the fact of sovereignty lies in the
performance of it.77 Sovereignty is arguably most usefully understood as an on-going
speech act in which the claimant seeks to persuade its audience both internally
over whom or on whose behalf the claim is being made, and externally of the fact
of its authority.78 For a claim to be persuasive, the performance must be a sustained
one, the claim constantly repeated through verbal or symbolic actions, such as the
issuing of legislation or any of the many acts that make up modern governance. It is
performance of sovereignty to date despite the existence of the pomp and circum-
stance of independence is too shallow to be a plausible claim to hegemony.82
This lack of eectiveness in the claim to Kosovan independence is arguably re-
ected in many of the responding declarations of recognition. As Warbricks analysis
reveals, these statements do not contain what he terms, the traditional language of
recognition.83 Instead, they recognise that Kosovo as a state that is yet to come into
being or, in the words of the Italian representative to the European Council, that Ko-
sovos status is that of, independence under international supervision.84 Not yet a
state, it is an entity in the process of state-building under the protection of the inter-
national community. Such an understanding of Kosovos current status is arguably
to be preferred to straightforward recognition. An independent Kosovo will remain
wholly economically dependent upon the international community in particular
the European Union for any foreseeable future. While economic dependency does
not equate with eective control, where a state is so totally dependent upon the will-
ingness of external actors to nance and assist with all the functions of the State, the
understanding by which eective control is equivalent to independence is rendered
defunct. Where the assessment of eective control becomes so subjective that it is
completely absorbed within the decision of whether or not to grant recognition, the
ability of this doctrine to present a balanced account of statehood is seriously under-
mined. This would be a worrying trend, given that the ability of states to live up to
their international obligations sits at the heart of international law.
In the current situation, the failure to, as yet, demonstrate the plausibility of its
sovereign claim arguably entails that Kosovos sovereign tie to Serbia has yet to be
broken. However, the desire of one-third of the international community to see an
independent Kosovo and the willingness of many of those to pay to support it sug-
gests that at some point in the not too distant future, Serbias sovereign rights will
be suciently compromised de facto by the performance of Kosovan independence
that it will have little choice but to recognise the loss de jure.85
4 Conclusion
Back in 2002 in relation to NATOs intervention, Koskenniemi wrote that, [i]n some
ways, formal law seems unable to deal with Kosovo.86 This insight seems equally
pertinent in relation to considerations of Kosovan independence. If Kosovo is now
a state, it is because it has successfully asserted its claim to statehood and, in so do-
ing, has severed the thread of Serbian sovereignty. This is not a legal argument about
whether or not Kosovo is entitled to statehood, but follows from the recognition of
the performance of it. While it seems unlikely that the local authorities in Kosovo
have been able to establish themselves suciently well to terminate Serbias rights,
it is the performance of their claims that can do so. What the case of Kosovo has
exposed is the necessarily thin veneer of law that covers the assertion of the politi-
cal claim to statehood. But the case of Kosovo arguably goes further: the question of
Kosovan independence is so fascinating for international lawyers precisely because
it presents such a stark example of the radical indeterminancy of international law
that Koskenniemi so forcefully exposed in his classic treatise.87
Yet the radical indeterminancy of international law should not lead to an any-
thing goes attitude a willingness to argue anything for any price. Rather, as Ko-
skenniemi has argued as part of his call for a culture of formalism, international law
must aspire to universality. As such, it compels those that make claims under it to
make these claims in a universal way;88 thus, that states take distance from their
preferences and justify their position in a way that can be universalised beyond the
individual case.
Ultimately, the legal arguments for supporting unilateral secession are not con-
vincing. What seems most disturbing about the way in which claims surrounding
Kosovo have been made is not that Kosovo will eventually gain independence in the
absence of the means to sustain itself, or even the harm that will be done to the abil-
ity of international organisations to mount future interim administrations; but it is
that those states in favour of independence have done so little to hide their political
preferences. By repeatedly stating that Kosovo is a unique case and thus incapable
of precedent-setting, such states (and the international lawyers that represent them)
have not engaged with the radical indeterminancy of international law. Instead, by
pursuing their preferred outcome by appeal to the uniqueness of the situation, their
use of the language of international law has suggested its irrelevance.
Martti Koskenniemi, The Lady Doth Protest Too Much: Kosovo, and the Turn to Eth-
ics in International Law, Modern Law Review (): .
Martti Koskenniemi, From Apology to Utopia. The Structure of International Law Argu-
ment, New Edition, (Cambridge: Cambridge University Press, ).
Martti Koskenniemi, Legal Universalism Between Morality and Power in a World
of States, in Law, Justice and Power Between Reason and Will, ed. Sinkwan Chang
(Stanford: Stanford University Press, ), .
Chapter 4 A Contemporary Interpretation of the
Principles of Sovereignty, Territorial
Integrity and Self-Determination, and the
Kosovo Conundrum
BESFORT RRECAJ
1 Introduction
This chapter discusses the place of Kosovo in between main principles of interna-
tional law: self determination, on one hand, and sovereignty and territorial integrity,
on the other. Discussing the Kosovo conundrum in between these principles, it tries
to develop a case where the people of Kosovo would be eligible to use the right to
self-determination and secede, as a last resort, from a state where their fundamental
human rights and freedoms were denied persistently. This would give the right to
the people of Kosovo to create an independent entity where they can exercise their
fundamental human rights and freedoms. The chapter will approach legal, historical
and political development of Kosovo from the dissolution of the Ottoman Empire
up to its current status.
Discussing these issues, the chapter will focus on the challenges to Kosovo after
the declaration of independence and its struggle to enter into international relations.
In the end it will give some basic data on and the prospects for the recognition pro-
cess and the possibilities for Kosovos membership in international organizations.
In particular, it will discuss the prospects of entering some of the most important
international organizations for Kosovo; the United Nations, International Monetary
Fund, World Bank, European Union and NATO.
Statistics after the Second World War show that population in Kosovo uctuated in
margins but in general the Albanian population in Kosovo did not go below , with
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 109-141.
110 II. Kosovos Unilateral Declaration of Independence
into the Kingdom of Serbs, Croats and Slovenes (Kingdom of Yugoslavia) in 1919 and
then in Communist Yugoslavia in 1945 has been of a continuous denial of the right
to internal self-determination, with only 15 years between 1974-1989 of a somewhat
better situation.
The Kingdom of Yugoslavia was established as a State in 1919 with the help of the
Great Powers, outside the scope of national self-determination advanced by Wood-
row Wilson. Yugoslavia did not exist at any time in the history before that as a ter-
ritory or nation. From the 15th century most of territories forming later Yugoslavia
were occupied by the Ottoman Empire which defeated the Byzantine Empire. The
Ottoman Empire at its height managed, in 16th century, to stretch shortly up to the
backdoor of Vienna. However, during ve centuries of domination in the Balkans the
Ottoman Empire mainly occupied territory encompassing what is today Bosnia and
Herzegovina, Serbia, Montenegro, Kosovo, and Macedonia. These territories would
later be made part of the Kingdom of and subsequent communist federation of Yu-
goslavia. Before that, the region was, since ancient times, inhabited by Illyrian tribes,
the descendants of whom are todays Albanians.2
People living in territories comprising Yugoslavia were distinguished by dier-
ent millets under the rule of the Ottoman Empire. The millet was a term used in
the Ottoman Empire to distinguish people based on their religion. The Ottoman
Empire recognized Muslim, Catholic, Orthodox and Jewish millets, each of them
represented by their respective authorities with the Sultan representing Muslim mil-
let. Catholic, Orthodox and Jewish millets were represented by Austria-Hungary,
the Ecumenical Patriarch (with its center in Serbia and Greece) and Hakham Bashi
(Chief Rabbi) respectively.3 With regards to administrative division, by the mid 19th
century, after political reforms in Ottoman Empire in 1864, there were dierent ad-
ministrative divisions called vilayetes (provinces) within the empire.4 In this admin-
istrative division the Kosovo vilayet was created as an autonomous province within
the Ottoman Empire which encompassed the territory of todays Kosovo, part of
western Macedonia, southern Serbia, northern Albania and southern Montenegro
with its main seat in Shkup (today Skopje, capital of Macedonia) and later Prishtina
(capital of Kosovo today). Other vilayetes with a mainly Albanian population created
during this time were the vilayetes of Shkodra, Ianina and Manastir.5
During the period of Ottoman occupation, mainly during the 17th century, most
Albanians were Islamized mostly from the Catholic religion. It should be noted that
the Albanian hero, Gjergj Kastrioti-Skenderbeu (Giorgia Castriota-Scanderbeg in
Latin) who fought against Ottoman Empire during 1443-1468, was acknowledged
by Pope Pius II as a defender of Christianity, Christian Gideon.6 Because Albanians
were Islamized and thus represented by the Sultan himself, it would prove dicult
for them to dene their national identity in the periods of national renaissance and
enlightenment during the 18th and 19th centuries which were marked by moves to
create national States. Other nations seeking to occupy Albanian lands attempted
to portray them as Turks before the Great Powers. Serbia, which gained an autono-
mous status within Ottoman Empire as a suzerain territory in 1815, drafted a plan in
1844 called Nacertania under the leadership of Ilia Garashanin. This was based on
the idea of pan-slavism, proclaimed and supported by Russia at that time. This plan
envisaged that Serbia, after the expected fall of the Ottoman Empire, would occupy
Albanian inhabited lands up to Durres (the main port of todays Albania) to give
them access to sea. With other nations developing their own plans to expand their
territories, the Great Powers were increasingly drawn to Eastern Question: what
would happen in the Balkans after the fall of the Ottoman Empire.7
With the weakening of the Ottoman Empire and also fearing other states irre-
dentist ambitions, Albanians proceeded with plans for national self-determination
and independence. This culminated on 10 June 1878 with the formation of the Priz-
ren League, just before the Congress of Berlin was about to discuss the crisis in the
Ottoman Empire. The Prizren League gathered the main Albanian leaders, regard-
less of their religion, in the city of Prizren (Prizren today is one of the main cities
of Kosovo). There they signed a declaration for the right to create an Albanian state
comprising only of territories inhabited by Albanians. In other words, it called for
unication of all four vilayetes into one independent Albanian state. Initially the
League of Prizren, thinking that their interests would be better defended within Ot-
toman borders, sought to settle the Albanian question within the Ottoman Empire.
The main goals of the League were: the defence of Albanian inhabited areas from the
ambitions of Serbia, Montenegro and Greece; the creation of a single vilayet com-
prised of all Albanian inhabited lands; military service for Albanians to be conned
within Albania in normal times; establishment of national schools to develop na-
tional education in the Albanian language in Latin script; control over nances that
would eect the vilayet. Acknowledging that the Ottoman Empire would certainly
fall, the Albanians quickly moved within the year for total independence and cre-
ation of an Albanian state encompassing Albanian inhabited lands.8 However, fol-
lowing the defeat of the Ottoman Empire in the Russian-Ottoman war of 1877, Ser-
bia, with Russian support, occupied Albanian lands that today are part of Southern
Serbia, including Nis, Prokuplje, Presevo Valley and Novi Pazar. Occupation of these
Albanian inhabited lands which were part of Kosovo vilayet, would be followed by
the mass expulsion of Albanians and this annexation was conrmed at the Congress
of Berlin of 1878.9 The voice of the League of Prizren, represented through a memo-
randum sent to the chairman of the Congress Otto von Bismarck, was not properly
heard in the Congress of Berlin.10 While the Serbian representatives at the Congress
of Berlin presented their struggle as a war of liberation for territories inhabited and
occupied by Ottomans/Turks, they included Albanian inhabited territories. Since
most Albanians were now Islamized, the Serbian politicians attempted to portray
them as Turks. In this way they ignored the existence of an Albanian nationality and
tried to expel them from their ancient territories.
Even though a portion of Albanian territories was given to Serbia in the Congress
of Berlin, other parts of todays Kosovo still remained within the Ottoman Empire.
With the beginning of the Balkan wars in 1913 Serbia advanced further into the ter-
ritories of northern Albania, including territories of todays Kosovo, causing mass ca-
sualties and destruction of property. An International Commission of Enquiry in 1914
reported that in most cases these casualties were civilians.11 In 1913 the Great Powers
in the London Conference, decided partly to support the Albanian cause and recog-
nized an Albanian state within borders which still remain the same today, but at the
same time left other territories, including what is today Kosovo, within Serbia.12
Kosovo and its Albanian population remained part of Serbia and what was to
become the Kingdom of Yugoslavia. The Kingdom of Serbs, Croats and Slovenes was
created with the help of the Great Powers. In 1919 an agreement was signed between
Serbs, Croats and Slovenes to form the new state. Later it became known as the
Kingdom of Yugoslavia. The Kingdom of Yugoslavia was ruled by the Karadordevid
dynasty of Serbian descent. The Great Powers helped establish what they believed
was a single state representing numerous groups,13 but in truth the Kingdom of Yu-
goslavia was an articial state that failed to equally represent all ethnic groups.14
This can be seen from its name. Yugoslavia in the English language means South
Slavs, automatically referring to something that was supposed to represent Slavic
people living in the south of Europe. This, however, excluded Albanians who are
not Slavs. The principle of national self-determination was not equally awarded to
the Albanian people. To balance the negation of self-determination for peoples now
incorporated into the Kingdom, upon its formation, Yugoslavia was asked to sign
the declaration on the protection of minority rights. Subsequently, the Kingdom
claimed that the declaration applied only to the areas taken over from Austro-Hun-
gary, even though the declaration referred to, the areas taken over by Serbia and
Montenegro since January 1913.15
In the Kingdom era, the Kosovo Albanians16 were not accorded the status of a
minority at all and were subjugated to repression. In a petition presented to the Sec-
retary General of the League of Nations, dated 5 May 1930 the Kosovo Albanian
Christian clergy stated that the Yugoslav authorities failed to uphold provisions of
the Declaration for Protection of Minorities signed by the Kingdom of Yugoslavia. In
its eight annexes, the petition emphasized eight dierent violations of the Declara-
tion pertaining to Articles 2, 3, 7, 8, 9, 10 including 1) protection of life, 2) protection
of freedom, 3) protection of property, 4) civil and political rights, 5) right to use their
language, 6) right to establish private schools and charity organizations, 7) right to
public education, 8) freedom of religion. The petition pointed out three dierent
gross violations against Albanians: 1) persecutions to force Albanians to leave their
homes, resulting in more than 140,000 Albanians settling in Turkey, Albania and
other countries, 2) employment of force to assimilate people and 3) killing individu-
als who refused to abandon their land or to assimilate and Serbianize.17
Projects against Albanians in Kosovo were proposed by leading Serb intellectu-
als, even openly urging the use of expulsion techniques deployed against Jews in
Nazi Germany and Soviet methods of deportation. Vasa ubrilovi in his writings
presented to the government of Yugoslavia in 1937, entitled Evacuation of Albanians,
tion. It actually was a reward to the Serbs under the guise of Serbias wartime espousal
of Yugoslavism. Mark Wheeler notes, The Union of December was a shotgun
wedding; the honeymoon was as short as the hangover was long, quoted by Chris-
topher Bennett, Yugoslavias Bloody Collapse (New York: New York University Press,
), .
Bennett, note above, .
Frank Muenzel, Kosovo and Yugoslavia: Law in Crisis, Jurist (): -.
Further in the text Kosovo Albanians will also be referred to as Albanians, which rep-
resent Albanians in the territory of Kosovo since its incorporation in the Kingdom of
Yugoslavia and then the Federal Socialist Republic of Yugoslavia. There will be further
explanations if the reference in the text is made to Albanians from the Albanian state
or Albanians living in other parts of Yugoslavia outside Kosovo.
Memoir presente a la Societe des Nations par Done Jean Bisaku, Don Etienne Kurti et
Don Louis Gashi, La Situation de la Minorite en Yugoslavie. The document is available
in the State Archive of Federal Secretariat for Foreign Aairs in Belgrade, DASIF Be-
ograd, Fond DNZ . DI. secr //.
114 II. Kosovos Unilateral Declaration of Independence
also urged state ocials to use physical and psychological means to pressure Alba-
nians to leave.18 ubrilovi was later appointed as Head of Serbian Academy of Sci-
ence and Arts. To achieve expulsion, Kingdom of Yugoslavia signed a secret agree-
ment with Turkey in 1938 which aimed to transfer the Kosovan Albanian population
to Turkey, but was halted because of the outbreak of the Second World War.19
At the beginning of the Second World War, the state of Albania fell under the
Italian rule, while the Kingdom of Yugoslavia fell under the German occupation. On
21 April 1941 an agreement between German and Italian foreign ministers decided
to join Kosovo to Albania under the Italian occupation. However, because of its rich
mineral resources, the northern part or Kosovo, mainly Mitrovica and surroundings
was retained by Germany. The Italian government granted Albanian citizenship to
all Albanians under Italian occupation by the decrees of October 1941 and February
1942. After the collapse of the Italian fascist regime, these Albanian territories fell
under German occupation which ocially recognized Albania within the borders
established by Mussolini.20
After the Second World War, Kosovo remained within what was now Communist
Yugoslavia. During the war, the National Liberation Council of Kosovo was created
to lead the liberation movement in Kosovo. At its rst conference from 31 December
1943 and 1-2 January 1944 in Bujan it declared in a resolution that it would join eorts
with other people under Nazi occupation for liberation and after the war wished to
join Albania.21 However at the end of the war, communists claiming to represent
Kosovo, of whom less then quarter were actually Albanians, opted for Kosovo to join
Serbia. On 3 September 1945 the Peoples Assembly of Serbia voted for the annexa-
tion of Kosovo.22 The Constitution of Yugoslavia of 1946 recognized Albanians as a
national minority. However, their position until late 1960s remained poor during
the period in oce of Aleksandar Rankovi, Yugoslavias Minister of Interior Aairs.
During this time, plans against Albanians, drafted during the Kingdom of Yugo-
slavia era, were being implemented. Forty thousand Albanian families were forced
to leave for Turkey which represented approximately 200 thousand people.23 In the
late 1960s Rankovis apparatus was dismantled. This would enable the Albanians
Vasa ubrilovi was a member of the club Mlada Bosna that projected the assassina-
tion of Archduke Franc Ferdinand. In his writings Cubrilovic states that, if we suppose
that gradual evacuation of Albanians during our colonization process is not ecient,
then we left with only one option massive expulsion of them at times when Ger-
many can evict thousands of Jews eviction of hundreds of thousands of Albanians,
would not incite a World War, cited in Malcolm, note above, -. See also Tim
Judah, The Serbs: History, Myth and Deconstruction of Yugoslavia (New Haven and Lon-
don: Yale University Press, ), .
Tim Judah, Kosovo: War and Revenge (New Haven: Yale University Press, ), -.
Malcolm, note above, -.
Sami Repishti, Rezoluta e Bujanit Janar : Nje Analiz, Studime Historike ():
.
Weller, note above, .
Judah, note above, -.
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 115
to publicly express their needs, thus organizing massive demonstrations in 1968 de-
manding the same legal status as the other republics.24 These events and pressure
from other republics resulted in the adoption of constitutional amendments in 1968,
1971 and 1974. All of the amendments were embodied in the new Yugoslav Constitu-
tion in 1974. The new constitution granted Kosovo the status of autonomous prov-
ince, with clearly dened borders and the power to approve future constitutional
changes. The new legal position characterized Kosovo as a political-territorial unit
and a constituent element in the Yugoslav Federation.25 That is to say Kosovo was
a de facto republic lacking formal arrangements. Kosovo had all the features of a
federal unit, with its own president, parliament, government, constitutional court,
national bank and other administrative bodies. The constitution guaranteed the ter-
ritorial integrity of Kosovo, autonomy in judiciary, nance, economics, protection of
constitutionality and legislation, international relations, maintaining public order
and organization of national territorial defence.26 Further attempts by Albanians to
advance their status formally into a republic with mass demonstrations in 1981 were
crushed by the police causing more than 200 deaths. This was followed by a purge of
Albanians from institutions, who were found guilty of ideological diversication.27
After the death of Tito, a heightened sense of nationalism began to emerge within
Serbia urged by highly educated Serb intellectuals under the pretext of being victims
of these state arrangements, depicting the Albanians as people who would politically
destabilize and threaten the survival of Yugoslavia. It was also fuelled by the Serbian
Orthodox church demanding protection of the Serbian people and its holy shrines.
The Serbian Academy of Science and Arts drafted a Memorandum in an attempt to
redene relations within Yugoslavia and establish Serbian hegemony. In particular,
it addressed the so-called physical, political, legal and cultural genocide against the
Serbian population in Kosovo.28 In 1987, the newly elected president of Serbia, Slo-
bodan Miloevi, visited Kosovo and in an address told Serbs that, no one should
dare to beat you, while in 1988, 50,000 Serbs in Kosovo signed a petition for closer
ties with Serbia.29 In its attempt to control the whole Federation, Serbia intervened
in Vojvodina and Montenegro changing their respective leaderships with loyalists.
An important move during this period was the centralization of the command of
the Yugoslav Peoples Army. Centralization of military command was completed
by the end of 1980, while Kosovo was stripped of its control of territorial defence
by 1985. The rst Serbian constitutional amendments were proposed in 1988. This
culminated in 1989 when the Belgrade regime began to abolish Kosovos autonomy.
The Federal Presidency unilaterally approved constitutional changes, thus violating
the Constitution of Yugoslavia that required the consent of Kosovo and the Federal
Parliament. This action destroyed the political and economic autonomy of Kosovo
without the consent of Kosovo itself.30
As expected Slovenia, Croatia and Bosnia and Herzegovina declared their inde-
pendence in 1990 and 1991, respectively. Kosovo followed in the same steps with a
declaration of independence, conrmed by a referendum on 22 September 1991. 87
of eligible voters took part, of whom 99 voted for independence.36 Serbs who made
up less than 10 of the population did not participate in this voting.37 To achieve
its goals, Kosovo, lacking control over the police and any army units, attempted a
peaceful realization of its statehood.
To manage this crisis the main international actors, the European Community
(later the European Union (EU)) and the US, engaged in dierent diplomatic meth-
ods, at the beginning supporting the territorial integrity of Yugoslavia, urging the
parties to redene their relations within the State. Eorts to establish a confedera-
tion, proposed by Slovenia, Croatia and Bosnia and Herzegovina failed in 1991. This
was followed by those republics with moves for independence and war by Serbia in
a bid to create a Greater Serbia.38 In this case, the international community shifted
its stance on the preservation of Yugoslavia and the EC established a conference
chaired by Lord Carrington, initially held in the Hague, to manage the developing
situation in Yugoslavia. This conference opened the way for republics, who wished,
to be recognized as independent states. However, this process took into consider-
ation the Serbs living in these republics with special arrangements, such as a special
constitutional status or autonomy, while ignoring the Albanian situation in Koso-
vo.39 A special arbitration commission was set up by the conference, chaired by Rob-
ert Badinter (commonly known as the Badinter Commission), to give legal support
for the process of dissolution. The Badinter Commission issued ten opinions and one
interlocutory opinion, upon request by the Carrington Conference. In its rst opin-
ion, the Badinter Commisson stated that Yugoslavia is in the process of dissolution.40
In its second opinion on the issue of self-determination, the commission opined
that only republics were entitled to apply for independence under the principle of
uti possidetis, preserving the borders of republics as they were within Yugoslavia.
As the Carrington Conference opened the way for the former Yugoslav republics
to le their application and be considered for independence, the application from
the Kosovo representative was not admitted, because one of the criteria was for the
applications to be submitted only from former Yugoslav republics. According to the
Constitution of former Yugoslavia of 1974, Kosovo enjoyed a wide autonomy but not
the formal status of a republic.41 In the minds of many Albanians the peaceful resis-
Ibid. .
See General Framework on Agreement for Peace in Bosnia and Herzegovina, www.ohr.
com. Accessed September .
The ICJ conrmed that the Srebrenica massacre was genocide, Bosnia and Herzegovina
v. Serbia and Montenegro, ICJ para. ( February). The ICTY earlier convicted
Radislav Krstic, Chief of Sta of Bosnian Serb Army of genocide, Prosecutor v. Radislav
Krstic, ICTY, IT---A ( April ). Accessed September . www.icty.org.
See General Framework on Agreement for Peace in Bosnia and Herzegovina.
Miron Rezun, Europes Nightmare: The Struggle for Kosovo (US: Praeger Publishers,
), -.
This would be reiterated later by the Chief of the General Sta of the Yugoslav Army,
Nebojsa Pavkovic, upon signing the Kumanovo Agreement in June , which made it
possible for NATO troops to enter Kosovo. See Hasani, note above, .
120 II. Kosovos Unilateral Declaration of Independence
lations in Kosovo.57 The UN General Assembly was also involved with its Special
Rapporteurs in a bid to follow the situation in Kosovo, although they always found
it hard to access all the requested sites for objective reporting. They presented their
ndings to the Security Council. In their reports from 1993-1997 they found dierent
violations of human rights such as general discrimination; discriminatory legislation
in relation to property; resettlement and demographic manipulation through dier-
ent programs; removal of ethnic Albanians from public oce and from commercial
enterprises; interference with the judiciary; education; freedom of press; arbitrary
arrest; torture and mistreatment; impunity for perpetrators; disproportionate use
of force.58 It is to be noted that in 1992 the Secretary of State Lawrence Eagleburg-
er, under George Bush Seniors presidency, established a red line for Serbia in its
attempts towards Albanians in the so called Christmas Warning. This warning
stated that, in the event of conict of Kosovo caused by Serbian action, the United
States will be prepared to employ military force against the Serbs in Kosovo and in
Serbia proper.59
Kosovan Albanians felt ignored in their commitment to achieve independence
in a peaceful manner. They realized that all reports of human rights violations by
Special Rapporteurs and other organizations did nothing more than ful l duties,
with slight verbal condemnations every now and then. Thus, the Albanians started
to reorganize their approach in a bid to inuence the international agenda and seek
a nal resolution of their status. The refusal of Serbs to engage in dialogue, and the
reluctance of international community to properly address the situation in Kosovo,
led to the creation of the military unit, Ushtria lirimtare e Kosoves (UK) or the
Kosovo Liberation Army (KLA).60 The KLA may be traced back to early 1990s with
minor support mainly from the youth and the rural population but this accelerated
after the Dayton Accords. Its basic concept was guerilla warfare, taking into consid-
eration its ability to confront the Serbian army since the whole territory was under
Serbian control and all army and police units were under Serbian command. Inter-
national support for KLA, be it political and military, was very weak until the NATO
airstrikes, when there was some coordination of activities. At one point the KLA
See Report of the Human Rights Rapporteur Mission to Yugoslavia, Res. /S-/,
August .
See Special Repporteurs Reports of November ; October ; December
; November ; October ; November ; October , Weller,
note above, -. Reports are available at Oce of the High Commissioner of Hu-
man Rights, www.ohchr.org.
The warning was conveyed orally and in writing and was addressed to President Slobo-
dan Miloevi of Serbia and General ivota Pani, commander of the Yugoslav Army.
See, Bush Warns Serbs Not to Widen War, The New York Times, December .
Accessed September . http://www.nytimes.com////world/bush-warns-
serbs-not-to-widen-war.html. See also Tony Barber, Bush threat to Milosevic, The In-
dependent, December . Accessed September . http://www.independent.
co.uk/news/bush-threat-to-milosevic-.html.
Judah, note above, . The Kosovo Liberation Army was founded in and subse-
quently gradually gained wide support from Albanians.
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 121
was even labelled a terrorist organization by Robert Gelbard the US special envoy
for Kosovo.61 Diplomatic engagement by the KLAs political wing with the interna-
tional actors was focused on presenting its movement as a liberation struggle, being
directed only against Serbian military and police installations in Kosovo and not
against civilian persons or objects. The KLA was also faced with problems within
Kosovo, mainly competition from the non-violent Kosovo movement. The peaceful
movement was mostly headed by the Democratic League of Kosovo and focused on
creating a parallel state system with the election of a president and the creation of
other institutions through an election system organized outside Serbian control. The
Albanian authorities elected in these votes managed to create parallel education and
health institutions supported by money collected voluntarily from Albanians living
in Kosovo, though the biggest share came from the Albanian Diaspora in Western
Europe and the USA. Later this money would be diverted to support the KLA and its
political and military structures by establishing the Vendlindja Therret (the Home-
land is calling) fund.
The KLA after the Dayton Agreement developed its structure under the politi-
cal leadership of Hashim Thaci. The KLA created its independent funding, outside
of previous funding organized by the peaceful political elite, and received most
support from hundreds of thousands of Albanians living in Western Europe and
USA. Money from the Albanian Diaspora was used to buy arms and ammunition
for resistance. Its political leader Hashim Thaci would become a key player in all the
next stages until the declaration of independence, under his direction as Kosovos
Prime Minister, Mr. Thaci, representing the KLA, would be the main participant at
Rambouillet Conference. Publicly the KLA for the rst time showed themselves in
November 1997, in the village of Llausha, during the funeral of a teacher, Halit Geci,
who was killed by Serbian forces. There they read a communiqu, which stated that,
we are the KLA, the real representatives of the war in Kosovo.62
The emergence of the KLA was used by the Serbian regime to mount attacks
against civilians under the pretext of hunting its members. Serb counter attacks
resulted in the destruction of entire villages and produced large numbers of civil-
ian casualties.63 The presence of the KLA enabled Miloevi to justify his regimes
ethnic cleansing of Kosovo, including displacement and murder of many others. The
Yugoslav army recruited and engaged paramilitary groups that would spread terror
to make the people leave their homeland.64 These acts by the Serbian state were sup-
ported, not only by the governing parties in Serbia, but also by the opposition.
Nened Sebak, The KLA Terrorist or freedom ghters? BBC News, June . Ac-
cessed September . http://news.bbc.co.uk//hi/europe/.
Hajredin Kuqi, Independence of Kosova/o: Stabilising or Destabilising Factor in the Bal-
kans? (Huston: Texas, ), .
Richard Caplan, International Diplomacy and the Crisis in Kosovo, Royal Institute of
International Aairs : (), -.
Kuqi, note above, . Large-scale killings of the Kosovo Albanians started by the end
of February when civilian Albanians were killed in the villages of Qirez and Liko-
shan, which was followed with the death of Albanians, in attempt to kill the founder
122 II. Kosovos Unilateral Declaration of Independence
With the intensication of ghting and mounting civilian casualties, the inter-
national community became more seriously engaged in the situation. This meant
that the situation in Kosovo was no longer seen as a mere internal problem. The UN
Security Council enacted three important resolutions 1160, 1199 and 1203 during a
span time of six months in 1998, responding the situation by calling for a cease re
and, for prompt and complete investigation, including international supervision and
participation, of all atrocities committed against civilians and full cooperation with
the International Tribunal for the former Yugoslavia.65 Diplomatic eorts involving
NATO threats helped to secure the Holbrooke-Miloevi agreement on a cease re
and the establishment of the OSCE Kosovo Verication Mission (KVM). The role of
the KVM was to monitor the ceasere declared by Serbia and the KLA and in this
way to engage in a preventive diplomacy and eventually make the conditions for dia-
logue. The KVM established a Human Rights Division which came to the conclusion
that: 1) the violence perpetrated against Albanians was planned and organized at the
highest levels of Serbian authority, 2) the Serb Army, police and various paramilitary
forces specically targeted various segments of Kosovo Albanian Society, 3) sexual
crimes against woman and young girls were widespread.66
However it would be the Recak massacre in January 1999 by Serbian forces that
would trigger the conscience of the international community. The aftermath was
witnessed by KVM ambassador William Walker, later to be declared persona non
grata by Yugoslavia. In his interview given to BBC on 31 January 1999 he stated that
there, is no doubt, that this was an act of massacre.67 As armed incidents prolifer-
ated, the KVM appeared to be an increasingly helpless observer of the October Hol-
brook Agreement68. Considering the stubbornness of Serbian regime a nal attempt
was made to settle the crisis through an international conference resembling earlier
and commander of the KLA. Among them there were eighteen women and ten children
under the age of .
See SC Res. , UN Doc. S/RES/ ( March ); SC Res. , UN Doc. S/
RES/ ( September ) and SC Res. , UN Doc. S/RES/ ( October
).
The analysis also reported atrocities committed which were mainly concentrated on
Albanian collaborators with the Serbian regime and forces. See. Kosovo/a: As Seen,
As Told, An Analysis of the Human Rights Findings of the OSCE Kosovo Verication
Mission in October to June (), .
No Doubt over Recak, BBC News, January . Accessed September .
http://news.bbc.co.uk//hi/europe/.stm
Serb pathologists tried to claim that there was no massacre. On the other hand in-
vestigators from the International Criminal Tribunal for the Former Yugoslavia were
barred from Serb authorities from entering Kosovo. See Mark Weller, The Rambouillet
Conference on Kosovo, International Aairs, :, (), . See also, Pathologists,
No Kosovo massacre, BBC News, January . Accessed September . http://
news.bbc.co.uk//hi/europe/.stm, Serbs Blamed for Massacre, BBC News, Jan-
uary . Accessed September . http://news.bbc.co.uk//hi/europe/.stm
Walker: No Doubt over Recak, BBC News, January . Accessed September
. http://news.bbc.co.uk//hi/europe/.stm
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 123
conferences dealing with the dissolution of Yugoslavia. The conference was orga-
nized by the Contact Group for Kosovo (composed of US, Great Britain, Germany,
France, Italy and Russia), and the venue was a castle in Rambouillet, France. Thus, it
became known as the Rambouillet Conference. The Contact Group during prepara-
tions for the conference made it clear that they would hold both parties accountable,
if they failed to reach a compromise solution. The time to reach this compromise
was set to be 21 days.69 This was backed up more resolutely by the North Atlantic
Council in its statement the next day demanding that even force might be used as a
last resort if the parties do not show the good will to achieve a solution70 Yugoslavia,
essentially Serbia, agreed to negotiations only after taking assurances that sover-
eignty and territorial integrity will be respected under the so-called non-negotiable
issues. Despite this, Albanians, under international pressure, agreed to be part of the
negotiations. The delegation of Kosovo was headed by KLA political leader Hashim
Thaci. The Rambouillet Conference went on in two phases and the nal proposal
draft upheld Serbias territorial integrity, at least, for the period of three years, after
which this arrangement would be considered again. According to this, Kosovos sta-
tus should be settled within the constitutional arrangements of Serbia, thus granting
some sort autonomy which would still leave Albanians frustrated. The proposal also
included in its nal provisions that after a three year period this arrangement will
be reviewed and to determine a mechanism for a nal settlement for Kosovo, on the
basis of the, will of people,71 and also opinions of relevant authorities and parties
involved in the process. Ultimately, it still did not provide for clear guarantees that
a referendum would be held to determine the nal status of Kosovo. It was because
of these arrangements that the conference had two rounds, since the Kosovo Al-
banian delegation had to break the conference and return to Kosovo to reconrm
support with KLA commanders, and other leaders of Kosovo. Under international
pressure and, in particular, with the role of US Secretary of State, Madeline Albright,
the Kosovo Albanian delegation nally agreed to sign the proposal. However, the
Serbian delegation at the last moment withdraw from the conference and distanced
itself from it.72 Nonetheless, even though, the Rambouillet conference did not man-
age to bring an agreement by parties, the conference and its proposal would make
its impact in later developments in determining the nal status of Kosovo. Security
Council Resolution 1244, which will be discussed later, would have a clear reference
to the Rambouillet Accords.73
The failed attempts to settle the crisis at the Contact Group sponsored Rambouil-
let Conference, followed by an all out oensive of Serbian troops against Albanian
civilians in which more than 700,000 people ed the country, led to a NATO reac-
tion. NATO did not have specic UN Security Council authorization but it acted on
the basis of humanitarian intervention. In its warning of 30 January 1999 the North
Atlantic Council stated its readiness to take whatever measures were necessary to
avert a humanitarian catastrophe by compelling compliance with the demands of
the international community and achieving of a political settlement. These included
the use of air strikes and other appropriate measures.74 The British Defence Secre-
tary George Robertson, on 21 April 1999, justied NATO intervention on the basis
of halting further human rights abuses and possible regional destabilization.75 Les-
sons learned with atrocities in Srebrenica, Rwanda and Cambodia played an im-
portant part in shaping events. Ko Annan in his speech addressing the crisis in
Kosovo before the Commission of Human Rights (succeeded by the Human Rights
Council) on 7 April 1999 stated his concern over the repetition of such a history. He
further declared that, no government has the right to hide behind national sover-
eignty in order to violate human rights.76 A Technical Military Agreement signed
in Kumanovo, Macedonia marked the capitulation of Yugoslavia and allowed NATO
troops to enter smoothly into the territory of Kosovo. Th is enabled the UN Security
Council to enact its Resolution 1244 which installed an international administra-
tion in Kosovo. UNMIKs basic role was to develop self-government in Kosovo and
prepare it for nal status talks.77
See earlier warning of NATO, North Atlantic Council statement, NATO Press Re-
lease (), January . Accessed September . http://www.nato.int/docu/
pr//p-e.htm.
Brieng by the Defence Secretary, Mr. George Robertson, and the Deputy Chief of the
Defense Sta (Commitments), Air Marshal Sir John Day and Mr. Paddy Ashdown,
Leader of the Liberal Democrat Party, April .
UN Press Release SG/SM/ HR/CN/, April .
See SC Res. , UN Doc. S/RES/ ( June ) and Technical Military Agree-
ment between NATO and Serbia.
William G. ONeill, Kosovo: an Unnished Peace (Boulder: Lynne Rienner Publishers,
), .
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 125
See preamble of SC Res. : Rearming the commitment of all Member States to the
sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other
States of the region, see also Annex paragraph of the Resolution stating for A po-
litical process towards the establishment of an interim political framework agreement
providing for a substantial self-government for Kosovo, taking full account of the Ram-
bouillet accords and the principles of sovereignty and territorial integrity of the Federal
Republic of Yugoslavia and the other countries of the region, and the demilitarization of
the KLA. UN Doc. S/RES/ ( June ).
See Paragraph , SC Res. , UN Doc. S/RES/ ( June ).
See Paragraph (a).
See Paragraph (e).
The eight standards are: ) functioning democratic institutions, ) rule of law, ) free-
dom of movement, ) sustainable returns and the rights of communities and their mem-
bers, ) economy, ) property rights, ) dialogue, and ) Kosovo protection corps. See of-
cial website of UN Mission in Kosovo, Standards for Kosovo. Accessed September
. http://www.unmikonline.org/standards.
126 II. Kosovos Unilateral Declaration of Independence
Ahtisaari to mediate and facilitate the negotiating process. Ahtisaaris oce would
be named the United Nations Oce of Special Envoy for Kosovo (UNOSEK).84
Due to conicting interests between the two parties, the Contact Group con-
structed ten basic principles upon which the future status should be determined.85
The most important principle is Principle No. 6, which states rmly that Kosovo
would not return to its status before March 1999, that there would not be a partition,
and that there would not be a union with another state.
During negotiation process, Martti Ahtisaari used dierent forms of diplomacy
ranging from shuttle diplomacy to facilitating direct negotiations between both par-
ties in Vienna. The SE and the Deputy SE (DSE) paid their rst visit to the parties and
the region in November 2005, visiting Pristina and Belgrade, as well as the neigh-
bouring capitals of Tirana, Podgorica and Skopje. Since then, the Special Envoy, his
Deputy and senior members of UNOSEK made frequent visits to the region. In the
course of 2006, UNOSEK held 15 rounds of direct talks between the Belgrade and
Pristina negotiating teams.86
On 25 January 2007, the Special Envoy met the Secretary-General of the United
Nations Ban Ki-moon in Paris to brief him on the latest developments in the status
process and share with him the proposal. The next day, the Special Envoy metin
Vienna with Contact Group members and also shared the content of his proposal, as
part of regular consultations and close cooperation between UNOSEK and the CG.
The proposal was presented to the parties concerned in the beginning of February to
be followed by two series of meetings between them in Vienna on 21 February and 2
March 2007 and a nal one on 10 March. At the end of the high level meeting on 10
March, the Special Envoy observed that there was no will from the parties to move
away from their previously stated positions. Left with no doubt that the parties re-
spective positions on Kosovos status did not contain any common ground to achieve
an agreement and that no amount of additional negotiation would change that fact,
the Special Envoy concluded that the potential for negotiations was exhausted. He
announced his intention to nalize his proposal for submission to the UN Security
Council in the course of the month of March.
On 14 March, Deputy Special Envoy Albert Rohan went to New York to hand
over to the Secretary-General the Final Comprehensive proposal for a Kosovo Status
Settlement, as well as the Report of the Special Envoy of the Secretary-General on
Kosovos Future Status. The report and the Comprehensive proposals were ocially
delivered to the UN Security Council on 26 March.87 In the letter dated the same
day, the Secretary General then addressed the UN Security Council on the Report
of the Special Envoy of the Secretary General on Kosovos future status. The report
recommended that Kosovo be given independence under international supervision,
which would allow Kosovo to enter into international agreements and international
organizations such as UN, WTO, IMF etc. The report suggested that reintegration
into Serbia is not a viable solution due to a history of, enmity and mistrust,88 that
had long antagonized the relationship between Albanians and Serbs. It also gives
importance of the situation on the ground during the past eight years of Kosovos
governance independent of the Belgrade authorities. The report also drew the in-
ternational communitys attention to the continuance of status quo, which could
have lead to destabilization of Kosovo and potentially the region as the frustration
of the majority of the people of Kosovo was under strain after 8 years of waiting.89
Despite broad endorsement by states and international organization ocials,90 the
document failed to get support of the Security Council. It did not even get as far as
being put in the agenda, due to Russias clear threat that it would use its veto if the
proposal was tabled for voting. This would, of course, determine the fate of the whole
process. Kosovos newly elected government, despite the possible obstacle of a lack
of an endorsement by the UN Security Council for independence, would move to
declare, after almost nine years of international administration, the independence of
the Republic of Kosovo.
Costa Rica recognized the Republic of Kosovo on the day of the Declaration for Inde-
pendence, while the US, France, Afghanistan, Turkey and United Kingdom issued their
recognition the next day. Accessed September . http://www.kosovothanksyou.
com.
Links to declarations of the states which recognized the Republic of Kosovo are avail-
able at www.kosovothanksyou.com. Accessed August .
Ibid.
states have recognized Kosovo as of November .
Gerhard von Glahn, Law among Nations (Boston: Allyn and Bacon, ), .
Serbia informed the Secretary-General that it had adopted a decision stating that the
declaration represented a forceful and unilateral secession of a part of the territory of
Serbia, UN Doc. S/PV. ( February ); Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, UN Doc. S// (
March ).
Resolution / of the United Nations General Assembly, A/RES// ( October ).
130 II. Kosovos Unilateral Declaration of Independence
decided to give an advisory opinion based on Article 65 of the statute of the Court.98
The Court determined that Article 12 of the Charter does not limit the power of the
General Assembly with respect to requesting an advisory opinion in cases where the
issue is under the agenda of the Security Council. According to the court, Article 12
of the Charter does not deprive the General Assembly of the jurisdiction conferred
by Article 96 and that: a request for an advisory opinion is not in itself a recommen-
dation by the General Assembly with regard to a dispute of situation.99
The Court determined that the question presented was of legal character falling
under Article 96 of the Charter and that the Court does not have to rephrase the
question to express the legal character as it has done so in specic cases.100 At the
same time the Court determined to narrowly address the question presented. Ac-
cording to the Court the question did not ask for it: to take a position on whether
international law conferred a positive entitlement on Kosovo unilaterally to declare
its independence or, a fortiori, on whether international law generally confers and
entitlement on entities situated within a State unilaterally to break away from it.101
In this regard, the Court did not see it necessary to widen the scope of the question
to include the limits of self-determination or whether Kosovo fulls the conditions
for statehood.102 In this way, the Court probably wanted to avoid a dicult task in
interpreting the principle of self-determination, more precisely remedial secession,
with regards to Kosovo in this case. Had the Court determined to interpret the prin-
ciple of self-determination, it might have placed itself in a dicult situation. On
one hand, had the Court proceeded to say that Kosovo did not have the right to
self-determination and create its own state than it would conict with the reality
of a Kosovo state recognized by 69 countries. At the same time, the Court would
have found it very dicult to ignore the historical development of the situation in
Kosovo and its human rights background for decades in contradiction to interna-
tional documents on human rights. On the other hand, had the Court proceeded to
say that Kosovo had the right to self-determination and create its own state, it would
have to elaborate it more thoroughly and set some conditions under which a certain
peoples, such as Kosovo, might be eligible for self-determination and the creation
of a state. In this case, it might have set a precedent which might be used by other
peoples and territories. However, the Court did mention that during the second half
of the twentieth century self-determination developed to the point where people of
non-self governing territories and peoples subject to alien subjugation, domination
and exploitation can resort to this right and claim for independence.103 But, there
were also instances of declarations of independence outside this context.104 These
declarations of independence were not illegal in their character but illegality of these
declarations was connected with, the unlawful use of force of other egregious vio-
lations of norms of general international law, in particular those of a peremptory
character (jus cogens).105 This illegality was determined on case by case bases by the
Security Council, which in the case of Kosovo, has never taken such a position.106
Ultimately the Court ful lled its task by answering the question, albeit in a very
narrow way. Unlike the Courts approach to the scope of the meaning of the ques-
tion, during the proceedings, both written and oral statements from Kosovo and its
supporters, were, to a large extent, focused on the right remedial secession for the
people of Kosovo. In the same vein but in opposition, were arguments from Serbia
and its supporters. The arguments going in favour of remedial secession and creation
of the new state for the people of Kosovo were focused on the historical background
taking into consideration the position of the Albanian population for decades and,
in particular, during the 1990s when repression, human rights violations and ethnic
cleansing were widespread culminating in the war of 1997-99. In the light of this,
according to these arguments, the Kosovo people had the right to declare indepen-
dence and that, in itself, the declaration did not violate any rules of international
law including Security Council Resolution 1244 and Constitutional Framework. An
important argument was that the Kosovo case is a sui generis case and that it should
not be used as a precedent for other territories due to its peculiar circumstances and
history and that no other case in the world is so similar that might resort to exercis-
ing the same right.107
On the other hand, arguments from Serbia and its supporters placed their focus
mainly on the principle of territorial integrity and sovereignty and that the principle
of self-determination had not developed to the point where it may be utilized by peo-
Ibid. para. .
Ibid. para. .
Ibid. para. .
Ibid. para. .
See in general written statements from: The authors of the unilateral declaration of
independence; The Republic of Albania; The Federal Republic of Germany; The King-
dom of Saudi Arabia; The Republic of Austria; The Republic of Bulgaria; The Republic
of Croatia; The Kingdom of Denmark; The United States of America; The Republic of
Finland; The French Republic; The Hashemite Kingdom of Jordan; The Kingdom of Nor-
way; The Kingdom of Netherlands; The United Kingdom of Great Britain and Northern
Ireland. See also oral statements by: The authors of unilateral declaration of independ-
ence; The Republic of Albania; The Republic of Austria; The Kingdom of Bahrain; The
Republic of Bulgaria; The Republic of Croatia; Kingdom of Denmark; The Republic of
Finland; The French Republic; The Republic of Germany; The Hashemite Kingdom of
Jordan; The Kingdom of the Netherlands; The Kingdom of Norway; the Kingdom of
Saudi Arabia; The United Kingdom of Great Britain and Northern Ireland. Accessed
August . www.icj-cij.org/docket/index.php?p=&p=&k=&case=&code=ko
s&p=.
132 II. Kosovos Unilateral Declaration of Independence
ple such as the Kosovo Albanians with their peculiar history. Another argument put
foreword by them was that a precedent would eventually be created should Kosovos
independence be supported by the Court and other states.108
During the elaboration, the Court also addressed the identity of the authors of
the declaration of independence. In other words, the Court determined whether the
authors were expressing the will of the people as a democratically elected repre-
sentatives or whether they were still acting as the provisional institutions of self-
governance pursuant to the Constitutional Framework. The Court determined that:
the authors of that declaration did not act, or intend to act, in the capacity of an
institution created by and empowered to act within that legal order but, rather, set
out to adopt a measure the signicance and eects of which would lie outside that
order.109 The Court came to this conclusion by analyzing several factors including
the text of the declaration, the exclusive procedure of voting for the declaration, par-
ticipants in the plenary session and the intention of the authors and the procedure it
followed after the adoption of the declaration. The declaration of independence was
adopted straight after the elections of 17 November 2007 and the intention of the
newly elected leaders was to act on behalf of the people of Kosovo to express their
will for independence outside the legal framework in existence up to that moment,
as the declaration of independence states in its rst paragraph: We, the democrati-
cally-elected leaders of our people, hereby declare Kosovo to be an independent and
sovereign state.110 The declaration was adopted by 109 members of the newly-elected
parliament (the Parliament of Kosovo has 120 seats). Upon its adoption the decision
was not forwarded for promulgation by the Special Representative of the Secretary-
General, pursuant to the regular procedure under UN administration.111 A marked
and important feature to the process was that the SRSG did not use its power ac-
cording to the UNMIK Regulation 1999/1 to make the declaration null and void.112
After the elaboration of the case presented before it, the Court voted by ten votes
to four that: the declaration of independence of Kosovo adopted on 17 February
See in general written statements from: The Republic of Serbia; The Argentine Republic;
The Republic of Azerbaijan; The Republic of Belarus; The Plurinational State of Bolivia;
The Federative Republic of Brazil; The Republic of Burundi; The Peoples Republic of
China; The Republic of Cyprus; The Kingdom of Spain; The Russian Federation; Ro-
mania; The Bolivarian Republic of Venezuela; The Socialist Republic of Viet Nam. See
also oral statements by: The Republic of Serbia; The Republic of Azerbaijan; The Re-
public of Belarus; The Plurinational State of Bolivia; The Federative Republic of Brazil;
The Republic of Burundi; The Peoples Republic of China; The Republic of Cyprus; The
Lao Peoples Democratic Republic; Romania; The Russian Federation; The Kingdom of
Spain; The Bolivarian Republic of Venezuela; The Socialist Republic of Viet Nam.
Kosovo Opinion, note above, para. .
Ibid. para.. See also Declaration of Independence of Kosovo, February . Ac-
cessed August . http://www.assembly-kosova.org/?krye=news&newsid=&l
ang=en.
Ibid. paras. -.
See UNMIK Regulation / Section , ., ( July ). Accessed August .
http://www.unmikonline.org/regulations//reg-.htm.
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 133
2008 did not violate international law.113 The Court did not answer directly the issue
of self-determination and its limits, especially in cases of gross violations of human
rights and repression, but it recognized that states were created outside of the con-
text of colonial rule.114 Declarations of independence and creation of the new states
outside the colonial context were deemed to be illegal only on a case by case basis,
depending on any underlying illegality, and condemnation by the Security Coun-
cil.115 In the case of Kosovo the SC never took any action against the declaration of
independence.
The advisory opinion of the Court is given to the organ requesting it. In this
case it is up to the GA to interpret and proceed further. Serbia sponsored a resolu-
tion, backed by the EU, and endorsed by a consensus in the General Assembly on
9 September 2010. The resolution urged for dialogue between parties stating that:
the process of dialogue in itself would be a factor for peace, security and stability
in the region, and that dialogue would be to promote cooperation, achieve prog-
ress on the path to the European Union and improve the lives of the people.116 The
resolution also acknowledged the recent advisory opinion of the ICJ on the legality
of the independence declaration by the Provisional Institutions of Self-Government
(PISG) of Kosovo.117 However, in the end it still left the parties in their positions the
way dialogue should be interpreted. From Kosovo side and its supporters, it means
anything but the issue of status, while for Serbia and its supporters, status should be
on the table.118 It remains to be seen how the EU will manage to push for a solution
at time when within the EU there is a minority of states that do not recognize the
Kosovo Opinion, note above, para. . Dissenting opinions were expressed by Judge
Koroma, Judge Bennouna and Judge Skotnkov, mainly on the issue that the Court did
not answer the question properly because the right to self-determination and its limits
was not taken under consideration or that the Court should have declined to answer the
question because the organ, General Assembly, requesting the question did not have the
right to ask it in the rst place. See Judge Skotnikov, Dissenting Opinion, -.
Ibid. para. . In addressing this issue the Court probably referred to the independence
of Pakistan, Bangladesh, the former Yugoslav Republics and the dissolution of USSR.
Ibid. para. . SC Resolutions () and (), concerning South Rhodesia; SC
Res. (), concerning Northern Cyprus; and SC Resolution (), concerning
the Republika Srpska.
See GA Press Release GA/ ( September ).
See GA Press Release GA/ ( September ).
See statement by Kosovo Prime Minister after the UN Assembly Session upon
his return to Pristina: Pranimi I rezolutes ne nje forme njohje nga Serbia, Tel-
egra, September . Accessed September . http://www.telegra.
com/?id=&a=&komentet=. See also statement by Albania, Turkey, Peru and the
US during the General Assembly session in support for Kosovo independence and that
the dialogue means a process to stabilize bilateral neighbourly relations and that status
should not be negotiated. On the other hand, see statement by Serbias foreign min-
ister Vuk Jeremi upon reading the proposed resolution during the GA session. Also
see statements by Russia, Brazil, China and Venezuela. General Assembly Press Release
GA/ ( September ).
134 II. Kosovos Unilateral Declaration of Independence
Statement of membership of the Republic of Kosovo in the IMF, IMF Press Release No.
/ ( July ).
See ocial website of World Bank and International Monetary Fund, www.worldbank.
org and www.imf.org.
Following are statistics about voting procedure that enabled Kosovo to enter Interna-
tional Monetary Fund and World Bank which took place on May and June
, respectively:
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 135
but also politically since only states are allowed to enter these organizations. From
an economic point of view, it is very important since it will give access to funds
desperately needed to build the necessary infrastructure, such as roads, energy and
water supply. After years of neglect and war, the basic infrastructure of Kosovo is in
a very bad shape.
Voting in the IMF: FOR: Albania, Afghanistan, Angola, Antigua and Barbuda, Aus-
tralia, Austria, Bahamas, Barbados, Belgium, Belize, Benin, Bulgaria, Burkina Faso,
Burundi, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Columbia,
Comoros, Congo, Costa Rica, Cote DIvoir, Croatia, Czech Republic, D.R. Congo, Den-
mark, Djibouti, Dominica, Egypt, Estonia, Fiji, Finland, France, Gabon, Gambia, Ger-
many, Ghana, Guinea Bissau, Haiti, Hungary, Iceland, Iraq, Ireland, Italy, Japan, Jordan,
Kenya, Latvia, Lesotho, Liberia, Lithuania, Luxemburg, Malawi, Malaysia, Maldives,
Malta, Marshall Islands, Mauritius, Montenegro, Mozambique, Netherlands, New Zea-
land, Niger, Nigeria, Norway, Oman, Palau, Panama, Peru, Portugal, Qatar, Republic of
Korea, Republic of Macedonia, Rwanda, St. Kitts and Nevis, St. Lucia, St. Vincent and
Grenadine, Samoa, San Marino, Saudi Arabia, Senegal, Sierra Leone, Slovenia, South
Africa, Sudan, Swaziland, Sweden, Togo, Trinidad and Tobago, Turkey, United Arab
Emirates, United Kingdom, USA, Vanuatu, Yemen, Zambia. AGAINST: Angola, Paki-
stan. ABSTAINING: Bahrain, Burundi, Honduras, Solomon Islands. BOYCOTTED:
Iran, Kuwait, Lao DPR, Micronesia, Papua New Guinea, Tunisia.
Voting in the World Bank: FOR: Albania, Afghanistan, Angola, Antigua and Barbu-
da, Australia, Austria, Bahamas, Bahrain, Barbados, Belgium, Belize, Benin, Bulgaria,
Burkina Faso, Burundi, Canada, Cape Verde, Central African Republic, Chad, Colum-
bia, Comoros, Congo, Costa Rica, Croatia, Czech Republic, Denmark, Djibouti, Domi-
nica, Estonia, Fiji, Finland, France, Gabon, Gambia, Germany, Guinea Bissau, Haiti,
Honduras, Hungary, Iceland, Iran, Ireland, Italy, Japan, Jordan, Kenya, Kuwait, Lao DPR,
Latvia, Micronesia, Liberia, Lithuania, Luxemburg, Malawi, Malaysia, Maldives, Malta,
Marshall Islands, Mauritius, Montenegro, Netherlands, New Zealand, Niger, Nigeria,
Norway, Oman, Pakistan, Palau, Panama, Papua New Guinea, Peru, Portugal, Qatar,
Republic of Korea, Republic of Macedonia, St. Kitts and Nevis, St. Lucia, Samoa, San
Marino, Saudi Arabia, Senegal, Sierra Leone, Slovenia, Solomon Islands, Sudan, Swe-
den, Togo, Tunisia, Turkey, United Arab Emirates, United Kingdom, USA, Vanuatu,
Yemen, Zambia. AGAINST: St. Vincent and Grenadine. ABSTAINED: Cote DIvoire,
Egypt, Swaziland, Trinidad and Tobago. BOYCOTTED: Cameroon, D.R. Congo, Ghana,
Iraq, Lesotho, Mozambique, Rwanda, South Africa. See Report of the Oce for Bilateral
Issues, International Organizations and Security Issues of the Ministry of Foreign Aairs
of the Republic of Kosovo, MPJ ZMD /, Ministry of Foreign Aairs of the Republic
of Kosovo.
See Chapter II of the Charter on Membership issue.
136 II. Kosovos Unilateral Declaration of Independence
of all, it would legitimize the new state of Kosovo by including it in this exclusive
state organization but also implying that states who voted in favour of Kosovos
UN membership recognize it. Second, Kosovo would be part of an organization of
collective security in which Kosovo would receive guarantees on territorial integ-
rity and sovereignty in compliance with the principles of the Charter. And also as
important it would give Kosovo access to dierent activities and forums organized
within the UN framework.
However, mainly because of Russias strong opposition, membership at the UN
currently seems to be years away. The membership procedure has two phases. First,
a country should be recommended by the Security Council and then a positive rec-
ommendation is sent to the General Assembly for voting. In the SC, nine member
states would have to vote in favour of admission of Kosovo with no veto exercised
by any of the permanent members.123 In the GA, Kosovo would need 2/3 of the votes
meaning that it would need around 130 states to vote for Kosovan membership.124
Article of Charter on Security Council voting procedure and Rule and of the
Rules of Procedure of the Security Council.
Article of Charter on General Assembly voting procedure for new members.
See NATO Ocial Website, www.nato.org, www.kfor.com, www.nato.int/SFOR/, www.
ntm-a.com/, www.jfcnaples.nato.int/ntmi/ntmi_index.html. Accessed September
.
See Art. of North Atlantic Treaty of April on membership issue.
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 137
These tensions were evident in Serb national and local elections when Serbia en-
couraged Serb minorities to organize local elections in Kosovo and form parallel
institutions regardless of opposition from Kosovos government and UNMIK, which
considered them to be illegal.127 Another important factor for NATO is also for mili-
tary structures to be compatible with NATO standards. This might not prove too
dicult for Kosovo, since NATO has been in Kosovo since 1999 as a peacekeeping
force through KFOR. During this time it was involved in the process of transforming
the KLA into the Kosovo Protection Corps as a civilian force during the transition
process to become the Kosovo Security Force (KSF) after independence. The KSF
which operates under the Ministry of Kosovo Security Forces is being structured
and trained under the supervision of KFOR which applies strict NATO standards.
The KSF is a civilian force which is a result of the Ahtisaari proposals and is equipped
with light armaments only.128 However this is a good basis for a swift transformation
into a real military structure adhering to NATO standards, which will make it suit-
able for admission to NATO.
Membership of NATO is also linked to the readiness of its members to admit
Kosovo as an equal partner. All members need to agree in favour of membership in
order for Kosovo to be admitted.129 However, there are obstacles in this process as
some member States have not yet recognized Kosovo, such as Spain, Greece, Slo-
vakia and Romania. Internally, it would be the United States, Britain, France and
Germany, as the big players within NATO, who could play an important role in
persuading other countries to vote in favour of Kosovos membership.
is among the countries looking for membership in the EU despite many statements
by Serbian ocials stating that they will not to abandon their claim for Kosovo in
exchange for EU membership.131 The EUs impact on Serbias policies can be seen
partly in the visa liberalization process. Serbia was very keen to see the EU open the
door for liberalization of visas for Serbian citizens. However, part of the deal was for
Serbia to stop issuing passports to Kosovo citizens under the justication that Serbia
is not able to control the population in Kosovo and thus not be able to commit to
EU standards on movement of people. Serbia agreed to this condition, and for the
rst time since 1999, Serbia is in the process of ending the issuing passports for the
Serbian population in Kosovo whom it regards as its citizens.132
The EU is present in Kosovo through the EULEX mission, established by EU joint
action to support the rule of law in Kosovo.133 The EU has also established an Euro-
pean Commission Liaison Oce in Kosovo. Since it was hard for Kosovo to estab-
lish any formal contractual relationship with the EU because ve member states
have not yet recognized Kosovo, the EU established a so-called Special Tracking
Mechanism to help raise Kosovo to European standards.134 To facilitate this, the EU
established the EU partnership for Kosovo, which foresees around 130 priorities for
Kosovo to ful l in European political, economic and legal standards. As a response
to this partnership, Kosovo created the European Partnership Action Plan which
outlines all the actions needed to ful l its obligations from the European partner-
ship. Kosovo has established special institutions to manage the European integra-
tion process.135 The EU also produces a progress report on Kosovo over specic issues
as it does with other aspiring States. Last year in its 2008 Enlargement Strategy the
EC decided to conduct a study, unocially referred as the feasibility study to dene
further Kosovos progress in its relations to EU. This study was released together
with the yearly progress report on 14 October 2009 and recommended several steps
towards the EU mainly: visa liberalization, autonomous trade measures, participa-
See eli, Neemo pristati na ucene zarad lanstva u EU, Blic Newspaper, August
. Accessed September . http://www.naslovi.net/--/blic/djelic-
necemo-pristati-na-ucene-zarad-clanstva-u-eu/; Kosovo neemo menjati za
lanstvo u Uniji, Blic Newspaper, August . Accessed September . http://
www.vesti.rs/Politika/Kosovo-necemo-menjati-za-clanstvo-u-Uniji.html.
See Commission Launches Dialogue with Serbia on Visa Free Travel, EC Press Re-
lease No. IP//, January . See also Kosovo Serbs Feel Betrayed by Serbia on
Visa Liberalization, The South East Europe Times, July . Accessed Septem-
ber . http://www.setimes.com/cocoon/setimes/xhtml/en_GB/newsbriefs/setimes/
newsbriefs////nb-.
See EU Council Joint Action //CFSP. February .
See European Commission ocial webpage. Accessed September . http://
ec.europa.eu/enlargement/potential-candidates/kosovo/political_pro le_en.htm.
See Kosovo Agency for Coordination of Development and European Integration ocial
webpage. www.acdei-ks.org. Accessed December .
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 139
The Pan-Euro-Med System means that products which have obtained originating status
in one of the countries may be added to products originating in anyother one of the
without losing their originating status within the Pan-Euro-Med Zone. countries
include countries of EU, EFTA, Turkey and countries that signed the Barcelona Decla-
ration to include Algeria, Egypt, Israel, Jordan, Lebanon, Syria, Morocco, Tunisia, the
Palestinian Authority and Faroe Islands. See EC Homepage on Taxation and Customs
Union at http://ec.europa.eu/taxation_customs/customs/customs_duties/rules_origin/
preferential/article__en.htm. Accessed September .
See Communication from the Commission to the European Parliament and the Coun-
cil: Kosovo-Ful lling its European Perspective, COM () , Brussels, October
. See also Kosovo under UNSCR / Progress Report, SEC () ,
Brussels, October .
See EU Parliament Press Release No.IPR ( February ).
See EC Ocial webpage http://europa.eu/scadplus/glossary/community_acquis_en.htm.
Accessed September .
140 II. Kosovos Unilateral Declaration of Independence
7 Conclusion
International law still largely remains based on its traditional roots of development
with the principle of territorial integrity and sovereignty at the cornerstone of its
corpus. In the post-Cold War period, the consciousness of the international commu-
nity has shifted signicantly towards human rights and fundamental freedoms. Hu-
man rights are realized within independent entities called states and a representative
government is key to their realization. The people are the sovereign and they in trust
transfer their sovereignty to the state in order to protect themselves and create a
framework where the people can exercise their human rights. In a democratic state,
a state takes its power from the people and it has the duty to represent all its people
and work for the benet and protect them from actions of private persons as well
as state actions.140 Failing to represent a part of the people would mean that a state
loses its sovereignty over that part of the people who then may become eligible to
reorganize themselves in a new arrangement in creation of a new independent entity
where they would be represented equally and their human rights and fundamental
freedoms would be protected.141 It means that no state can hide behind the veil of
sovereignty and territorial integrity in denying human rights to individuals, groups,
entities, population or part of the population within its borders.
Although there is still no international rule determining circumstances when a
certain group of a state may gain the right to secede, there is a growing consensus
that sovereignty and territorial integrity ought to be exercised within the limits of
having a representative government, where all people are equally presented.142 The
ICJ, in its advisory opinion on Kosovo, elaborated above, did not answer whether the
Kosovo people had the right to self-determination and statehood or not. It eloquent-
ly avoided this issue, while answering the question presented. However, by doing so,
it may be understood that the principles of sovereignty and territorial integrity are
not absolute, though its limits are still ambiguous.
Serbia failed to exercise its duty to respect, promote and protect human rights
over Kosovo with its Albanian majority population. In this way it forfeited its sov-
ereignty to govern the territory of Kosovo because of its actions against the people
of Kosovo and in this way created a right for Kosovo to secede and create its own
independent state, where they can realize, promote and protect fundamental human
rights and freedoms. Kosovo has declared its independence in harmony with Ahti-
saaris proposal and since then has been recognized by 72 countries. The Constitu-
tion of Kosovo gives clear mechanisms for minority groups through which they can
exercise their rights. The state of Kosovo is facing challenges in its pursuit to have
a seat at the international table. The existence of a state is matter of fact but accep-
tance by others determines its participation in regional and global developments.
Recognition may be swift or it may take longer. It is a sovereign act and depends on
the will of each individual state where they consider it appropriate to issue formal
recognition. Kosovo has gone a signicant way forward but a lot still remains to be
done to get to its aspiration of standing in international relations.
Chapter 5 Kosovo: Unilateral Secession and
Multilateral State-Making
JURE VIDMAR*
1 Introduction
On 17 February 2008, Kosovo declared independence.1 Statements of state ocials2
and legislation passed by Serbias parliament3 leave no doubt that no consent was
* The author wishes to thank the editor of this volume, Dr. James Summers, for help-
ful comments on earlier drafts. Some parts of this chapter have appeared in the arti-
cle entitled International Legal Responses to Kosovos Declaration of Independence,
Vanderbilt Journal of Transnational Law (): . Some parts also draw on
the authors PhD thesis entitled Democracy and State Creation in International Law,
which was supervised by Prof Robert McCorquodale and defended at the University of
Nottingham. The chapter also draws on the authors conference paper entitled Kosovo:
Unilateral Secession or Collective State Creation? presented on March at the
University of Lancaster. The author wishes to thank the participants of the event for an
inspiring debate. Any mistakes are, of course, the authors own.
See Kosovo Declaration of Independence . Accessed February . http://www.
assembly-kosova.org/?cid=,,.
Consider, for example, the address of the President of Serbia, Boris Tadi, to the Secu-
rity Council on February , where he stated: The Republic of Serbia will not ac-
cept the violation of its sovereignty and territorial integrity. The Government of Serbia
and the National Assembly of the Republic of Serbia have declared the decision of the
Pristina authorities null and void. Likewise, we are taking all diplomatic and political
measures to prevent the secession of part of our territory. UN Doc. S/PV. ( Feb-
ruary ), .
See The Decree on the Annulment of Illegal Acts of Interim Organs of Self-Government
in Kosovo and Metohija on the Unilateral Declaration of Independence () [herein-
after The Decree] <http://www.srbija.sr.gov.yu/kosovo-metohija/index.php?id=>.
See also The Decree on Conrmation of the Decree of the Government of the Repub-
lic of Serbia on the Annulment of Illegal Acts of Interim Organs of Self-Government
in Kosovo and Metohija on the Unilateral Declaration of Independence . Ac-
cessed April . http://www.parlament.sr.gov.yu/content/lat/akta/akta_detalji.
asp?id=&t=O>.
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 143-177.
144 II. Kosovos Unilateral Declaration of Independence
given from the parent state. Yet recognition was not collectively withheld and has
been expressly granted by seventy two states.4
The role of recognition in international law has been traditionally looked at
through two theories. According to the constitutive theory, recognition by other
states creates a new state and endows it with legal personality,5 while the de-
claratory theory, maintains that recognition is merely an acceptance by states of
an already existing situation.6 In the declaratory view recognition therefore merely
acknowledges the existence of a state. In the example of Kosovo, it is dicult to
explain the legal situation from the perspective of either theory. From the constitu-
tive perspective, Kosovo both is a state (for the seventy two recognising states) and
is not a state (for states denying recognition). From the declaratory perspective, it
is questionable whether recognition merely acknowledged the fact of the existence
of the state of Kosovo. Further, it remains controversial whether Kosovo meets the
statehood criteria7 and whether the state creation met the legality requirements.8
This chapter considers the legal and factual circumstances in which Kosovo de-
clared independence and argues on the legal relevance of international responses to
the Declaration of Independence. The circumstances of Kosovos Declaration of In-
dependence were determined by the legal arrangements created by Security Council
Resolution 1244,9 by the absence of Serbias consent and, ultimately, by the consid-
erable number of recognitions. An argument is made that part of the international
community was involved in producing, rather than acknowledging, the emergence
of a new state and therefore Kosovo may, possibly, be regarded as an (informal) col-
lective state creation. Yet it remains questionable whether the state creation has been
successful and not even the Advisory Opinion on Kosovo, given by the International
Court of Justice (ICJ) on 22 July 2010,10 claries Kosovos legal status. Parallels will
be drawn to some other post-1990 new state creations in which the international
community had signicant involvement. What these new state creations have in
common, how they diered from the Kosovo situation and the legal signicance of
these dierences will be shown.
To produce an adequate survey of the human rights abuses suered by the Albanians
of Kosovo since 1990 would require several long chapters in itself. Every aspect of life in
Kosovo has been aected. Using a combination of emergency measures, administrative
ats and laws authorizing the dismissal of anyone who had taken part in one-day protest
strike, the Serb authorities have sacked the overwhelming majority of those Albanians
who had any form of state employment in 1990. Most Albanian doctors and health work-
ers were also dismissed from the hospitals; deaths from diseases such as measles and polio
have increased, with the decline in the number of Albanians receiving vaccinations. Ap-
proximately 6,000 school-teachers were sacked in 1990 for having taken part in protests,
and the rest were dismissed when they refused to comply with a new Serbian curriculum
which largely eliminated teaching of Albanian literature and history.19
After years of peaceful resistance by the Democratic League of Kosovo, the mili-
tant Kosovo Liberation Army (KLA) emerged.20 Serbian opposition escalated in re-
sponse.21 The situation in Kosovo was dealt with by Security Council Resolutions
1160,22 1199,23 120324 and 1239.25 The rst three were adopted under Chapter VII of
the UN Charter. The resolutions, inter alia, called for a political solution of the situ-
ation in Kosovo,26 condemned the violence used by organs of the Federal Republic
of Yugoslavia (FRY) as well as violent actions taken by Kosovo Albanians (the latter
were called acts of terrorism),27 and, arming the territorial integrity of Serbia,28
expressed support for, an enhanced status of Kosovo which would include a sub-
stantially greater degree of autonomy and meaningful self-administration.29
While violence in Kosovo continued, negotiations between the FRY and Kosovo
Albanians aiming for a political settlement began in February 1999 at Rambouil-
let, France.30 On 23 February 1999, the Rambouillet Accords on Interim Agreement
for Peace and Self-Government in Kosovo were drafted.31 The document sought to
establish conditions for the termination of hostilities in Kosovo32 and foresaw mean-
ingful self-government for Kosovo based on democratic principles.33 In this context
the Rambouillet Accords included a Constitution for Kosovo,34 which established
self-governing organs with wide powers.35 The document further foresaw a with-
drawal of Serbian military and police forces from Kosovo36 and NATO peacekeep-
ing.37 Importantly, the Rambouillet Accords stressed territorial integrity of the FRY
in both the preamble38 and in the operative articles.39
The Rambouillet Accords were signed by the representatives of Kosovo Albanians
on 18 March 1999, while the FRY and Serbia refused to sign.40 Following this refusal,
on 24 March 1999, NATO started a military campaign against the FRY.41 A full dis-
cussion of the legality question of the NATO intervention is outside of the scope of
this chapter. Suce it here to recall that given the absence of authorisation of the
use of force in the relevant Security Council resolutions,42 the NATO intervention is
generally perceived to be in breach of the UN Charter.43
The end of hostilities between NATO and the FRY was achieved on 9 June 1999
with the signing of the Military Technical Agreement at Kumanovo, Macedonia.44
Kosovo Albanians. Signatures of the United States, the EU and Russia were foreseen as
witnesses. See The Rambouillet Accords, Chapter , Article II.
See The Rambouillet Accords, Chapter , Article II, paras. , .
Ibid. Chapter , Article II, para .
Ibid. Chapter .
See ibid. The organs established by the proposed Constitution were the Assembly [Ar-
ticle II], President of Kosovo [Article III], Government and Administrative Organs [Ar-
ticle IV] and Judiciary [Article V].
Ibid. Chapter , Articles IV & VI.
Ibid. Chapter , Article I, para. (a).
Ibid. preamble, para . The preamble to the Rambouillet Accords, inter alia, recalls, the
commitment of the international community to the sovereignty and territorial integrity
of the Federal Republic of Yugoslavia.
Ibid. Chapter , Article I, para. (a).
See Crawford, note above, -.
See Dino Kritsiotis, The Kosovo Crisis and NATOs Application of Armed Force
Against the Federal Republic of Yugoslavia, International and Comparative Law Quar-
terly (): .
See SC Res. ; SC Res. ; SC Res. ; SC Res. , UN Doc. S/RES/ ( May
).
See Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, European
Journal of International Law (): ; Antonio Cassese, Ex iniuria ius oritur: Are
We Moving towards International Legitimation of Forcible Humanitarian Counter-
measures in the World Community? European Journal of International Law ():
; Christine Chinkin, Kosovo: A Good or Bad War? American Journal of Interna-
tional Law (): ; Kritsiotis, note above, .
The Military-Technical Agreement between the International Security Force (KFOR)
and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia
148 II. Kosovos Unilateral Declaration of Independence
again, it became clear that Kosovo Albanians were not willing to accept anything
but independence and the additional round of negotiations merely rearmed the
observations of Special Envoy Ahtisaari a mutual agreement on the future status
of Kosovo was not achievable and, thus, the political process called for by Resolution
1244 failed.68
Ocials of the United States and of the European Union (EU) soon expressed a
general willingness to recognise Kosovo as an independent state.69 Ultimately, Koso-
vos Declaration of Independence on 17 February 2008 came as no surprise. Media
reports in the weeks and days prior to the Declaration suggest that it was coordi-
nated between Kosovo ocials, on the one hand, and part of the EU and the United
States, on the other.70 It thus became obvious that part of the international commu-
nity decided to implement the Ahtisaari Plan without a Security Council resolution.
the spheres of its sole jurisdiction and in other cases determined by the agreement.
Serbia could not change and abolish laws in Kosovo, Kosovo would have executive pow-
ers, an independent and complete judicial system in charge of disputes in the sole juris-
diction of Kosovo and in other cases determined in the agreement. Belgrades proposal
calls for a transitional period under EU monitoring and the presence of international
judges. In keeping with the example of Finland and the Aland Islands, in the case of
Kosovo Serbia is the subject of international law and Kosovo is oered as its exclusive
jurisdiction the negotiating of agreements with other states and international organiza-
tions. Kosovo prepares agreements in consultation with Serbia, while Belgrade formally
signs the agreements along with the signature with Kosovo and Metohija.
Kosovo Troika Press Communiqu, The Baden Conference ( November ). Ac-
cessed March . http://www.consilium.europa.eu/ueDocs/cms_Data/docs/press-
Data/en/declarations/.pdf.
See Talks on Kosovo Hit a Dead End, Rice Says, New York Times, December .
Accessed March , http://query.nytimes.com/gst/fullpage.html?res=FEDB
FEFBACACB&scp=&sq=kosovo&st=nyt.
See Here Comes Kosovo, New York Times, February . Accessed February
. http://www.nytimes.com////opinion/cohen.html?scp=&sq=kosovo
&st=nyt. See also the protocol drafted (in Slovene) by an ocial of the Slovenian foreign
ministry after meeting with representatives of the United States Department of State on
December (in the rst half of Slovenia lead the Presidency of the Council
of the EU), which leaked to media. Accessed April . http://www.delo.si/media/
faksimile.pdf and http://www.delo.si/media/faksimile.pdf. The protocol proves
that Kosovos declaration of independence was coordinated between Kosovos leaders
on the one hand and the United States and the EU on the other. The following notes are
especially instructive: The prevailing view in the EU is that independence of Kosovo
needs to be declared after the elections in Serbia ( January [] and February
[]) The session of the Kosovo Parliament, at which declaration of independence
would be adopted, should take place on Sunday, so RF [the Russian Federation] has no
time to call for the meeting of the UNSC [United Nations Security Council]. In the
mean time the rst recognitions could already arrive The United States after Koso-
var authorities declare independence, will be among the rst to recognise Kosovo. The
United States strives for recognition of Kosovo by as many non-EU states as possible.
The United States is lobbying with Japan, Turkey, Arab states, that have showed readi-
ness to recognise Kosovo without hesitation The United States is currently drafting
152 II. Kosovos Unilateral Declaration of Independence
a constitution with Kosovars. The situation on the ground is favourable. The United
States hopes that Kosovars are not going to lose self-condence, as this could result in
United States loss of inuence. (Translations from Slovene are the authors own).
GA Res. /, UN Doc. A/RES// ( October ).
Kosovo Opinion, para .
Quoted in the Kosovo Opinion, para .
Kosovo Opinion, para .
Ibid. para. .
Ibid. para. .
Ibid. para. .
Chapter 5, Jure Vidmar Kosovo: Unilateral Secession and Multilateral State-Making 153
The Court further identied Resolution 1244 as the lex specialis which could poten-
tially prohibit a unilateral declaration of independence. But, according to the Court,
Resolution 1244, did not bar the authors of the declaration from issuing a decla-
ration of independence from the Republic of Serbia.78
The formulation did not bar the authors of the declaration seems to be very care-
fully chosen. Indeed, in the Courts view, independence was not declared by Kosovos
institutions of self-government, but rather [by] persons who acted together in their
capacity as representatives of the people of Kosovo outside the framework of the
interim administration.79 The Court thus left open a possibility that the prohibition
was addressed to Kosovos institutions of self-government but, in light of Courts
nding on the identity of the authors of the Unilateral Declaration of Independence,
this question had become irrelevant.
It is also important to note that the Court did not build its argument entirely
on its pronouncement on the identity of the authors of the Declaration of Indepen-
dence. Discussing Resolution 1244 more broadly, the Court held that a prohibition
of a declaration of independence cannot be derived from the language of the resolu-
tion understood in its context and considering its object and purpose. The language
of Security Council resolution 1244 (1999) is at best ambiguous in this regard.80
According to the Court, the object and purpose of the Resolution was the creation
of the interim administration and not the nal settlement of Kosovos territorial
status.81 If this argument is accepted, the nal settlement of the territorial status
of Kosovo falls outside of the purview of Resolution 1244 and therefore a unilateral
declaration of independence is not prohibited, no matter who were the authors of
the Declaration.
In relation to possible illegality under the Constitutional Framework, the Court
argued:
The Court has already held that the declaration of independence of 17 February 2008
was not issued by the Provisional Institutions of Self-Government, nor was it an act in-
tended to take eect, or actually taking eect, within the legal order in which those Provi-
sional Institutions operated. It follows that the authors of the declaration of independence
were not bound by the framework of powers and responsibilities established to govern the
conduct of the Provisional Institutions of Self-Government. Accordingly, the Court nds
that the declaration of independence did not violate the Constitutional Framework.82
In the context of the Constitutional Framework, the Court thus based its argument
only on its prior pronouncement that the Declaration of Independence was not is-
sued by Kosovos institutions of self-government but rather by a group of individu-
als.83 Unlike in respect of Resolution 1244, the Court did not try to make a broader
argument.
The Courts reasoning is not without controversies, yet a thorough analysis of
the advisory opinion is not the purpose of this chapter. The Court ultimately con-
cluded that: the adoption of the declaration of independence of 17 February 2008
did not violate general international law, Security Council resolution 1244 (1999) or
the Constitutional Framework. Consequently [the Court held that] the adoption of
that declaration did not violate any applicable rule of international law.84 As pointed
out earlier in the Opinion, these ndings did not have any implications for the ques-
tion of whether or not Kosovo is a state and whether or not recognition of Kosovo is
in accordance with international law.85 But these are some of the issues which will be
dealt with in the forthcoming sections.
The recognized sources of international law establish that the right to self-determination
of a people is normally ful lled through internal self-determination a peoples pursuit
of its political, economic, social and cultural development within a framework of an exist-
ing state.89
[T]he legality of secession cannot be judged on whether there is a specic rule of author-
izing or outlawing it. As soon as the principle of territorial integrity applies, it necessarily
outlaws secession without the consent of the parent state. Such understanding avoids sys-
temic inconsistency under which international law would guarantee territorial integrity
yet would not prohibit secession. 91
Such a view assumes that the principle of territorial integrity is absolute, which might
not be the case.92 There is some evidence that under certain circumstances states
are willing to waive observance of the territorial integrity of other states.93 Further,
an inverted reading of the elaboration of territorial integrity in the Declaration on
Principles of International law might give rise to remedial secession, i.e. secession of
oppressed peoples.94 Such a view seems to be taken by the Supreme Court of Canada
in its further reasoning in the Quebec Case: A right to external self-determination
(which in this case potentially takes the form of the assertion of a right to unilateral
secession) arises in only the most extreme of cases and, even then, under carefully
dened circumstances.95
While it remains utterly disputable whether remedial secession really is an
entitlement,96 this doctrine may have some merit if perceived in the context of inter-
national recognition of an attempt at unilateral secession. Shaw argues:
[I]t may well be the case that the attitudes adopted by third states and the international
community as a whole, most likely expressed through the United Nations, in deciding
whether or not to recognize the independence of a seceding entity will be aected by
circumstances factually precipitating secession, so that recognition may be more forth-
coming where the secession has occurred as a consequence of violations of human rights.
Thus, the content of the [safeguard] clause should perhaps best be seen in this light, that is
as a relevant factor in determining the views taken by the international community gener-
ally, and states particularly, as to recognition.97
Therefore, while remedial secession is not an entitlement, it may well be that op-
pression softens the claim to territorial integrity, so that foreign states may be more
willing to waive its observance. This implies that the principle of territorial integrity
does not have the status of an absolute principle.
Another fact relevant for the question of legality of unilateral secession is that a
mere unilateral declaration of independence does not create a state and therefore
does not automatically create a new legal situation. It is therefore dicult to see how
a unilateral declaration of independence would, by itself, lead to an illegal situation
under international law.98 The most probable answer is that unilateral secession is,
a legally neutral act the consequences of which are regulated internationally.99 This
was also the position taken by the ICJ in the Kosovo Opinion but the Court failed to
discuss the question of recognition in this context.100
However, the link between unilateral secession and recognition was expressly
made by Supreme Court of Canada in the Quebec Case:
titled to limit the exercise of the right of self-determination of its peoples to the internal
mode of consummation of this right.
The Quebec Case, para. .
Consider the following argument: Such a major change in legal principle cannot be
introduced by way of an ambiguous subordinate clause, especially when the principle
of territorial integrity has always been accepted and proclaimed as a core principle of
international law, and is indeed placed before the qualifying clause in the provision in
question. Malcolm Shaw, Peoples, Territorialism and Boundaries, European Journal
of International Law (): .
Ibid.
This is not to say that state creation can never be illegal. For more see below Chapter .b.
Crawford, note above, .
Kosovo Opinion, para. .
Chapter 5, Jure Vidmar Kosovo: Unilateral Secession and Multilateral State-Making 157
Although there is no right to unilateral secession this does not rule out the possibil-
ity of an unconstitutional declaration of secession leading to a de facto secession. The ul-
timate success of such a secession would be dependent on recognition by the international
community, which is likely to consider the legality and legitimacy of secession having re-
gard to, amongst other facts, the conduct of Quebec and Canada, in determining whether
to grant or withhold recognition.101
This argument also suggests that states are not required to withhold recognition
only because an attempt at secession is unilateral. Moreover, as argued above, it may
well be that foreign states are more likely to grant recognition in situations where
oppressed peoples try to create their own state. However, state practice in this regard
is insuciently developed. What also follows from the reasoning of the Supreme
Court of Canada is that in the circumstances of unilateral secession recognition
might constitute a state. This issue will be dealt with below. At this point the focus
will be on the legality criteria which, as identied by the Supreme Court of Canada,
play a role in recognition.
Signicantly, non-eective entities have become states before. In the age of de-
colonisation, exercise of the right of self-determination was often regarded as more
important than eectiveness.113 Even in non-colonial situations eectiveness consid-
erations were not applied strictly when new states were created: Croatia and Bosnia-
Herzegovina became states, although their governments did not exercise eective
control over their respective territories.114 It is thus at least questionable to what
degree the traditional statehood criteria are still taken into account when new states
are created. Further, it is also questionable whether ful lment of the traditional
statehood criteria is enough for a state creation.115
Practice of states and UN organs show that even when an entity becomes eec-
tive, it will not necessarily be considered a state if it was created illegally.116 The il-
legality of a state creation has been accepted in certain situations when eective ter-
ritorial situations were created as the result of an unlawful use of force,117 in breach
of the right of self-determination118 or in pursuance of racist policies.119
According to the Commentary to the International Law Commission (ILC) Ar-
ticles on Responsibility of States for Internationally Wrongful Acts, the character of
these norms may be considered to be that of jus cogens.120 Article 41(2) of the ILC
Articles on State Responsibility provides that: no State shall recognize as lawful a
situation created by a serious breach [of jus cogens] nor render aid or assistance in
maintaining that situation.121 As a consequence, states owe an obligation erga omnes
to withhold formal or implied recognition of an eective territorial situation, created
in breach of jus cogens.122 It may well be that the prohibition of illegal use of force,
prohibition of racial discrimination and respect for the right of self-determination
have become additional statehood criteria123 but such an interpretation has not been
accepted by all scholars and some rather regard them as legality-based recognition
requirements.124
The potential illegality of Kosovos state creation can be traced from NATOs use
of force,125 whether as a consequence of non-meeting of the additional statehood cri-
teria or of non-fullment of the legality-based recognition requirements. However,
such an argument is not without diculties. Kosovos Declaration of Independence
was proclaimed by the self-governing organs established under the legal regime of
Resolution 1244.126 Therefore it is dicult to accept that Kosovos Declaration of In-
dependence stems directly from the NATO intervention and that the obligation to
withhold recognition applies erga omnes, as a consequence of a violation of jus co-
gens.127 Resolution 1244 probably interrupts the legal link between the (illegal) use of
force and the state creation. Even paragraph 81 of the Kosovo Opinion suggests that
Kosovos (attempt at) unilateral secession cannot be attributed to the use of force or,
more generally, to a violation of jus cogens.128
However, in light of references to the territorial integrity of the FRY (now Serbia),129
it may well be that a non-consensual state creation was prohibited under Resolution
1244. It is questionable at this point whether Resolution 1244: (i) makes a declara-
tion of independence an illegal act under international law, so that international law
would no longer be neutral on the question of unilateral secession in this particu-
lar circumstance;130 and (ii) whether reference to the territorial integrity of what is
now Serbia puts an obligation on states to collectively withhold recognition. States
expressly denying recognition and states granting recognition do not have unitary
answers to these two questions.131
The rst question was dealt with by the ICJ in its advisory opinion. The Court
found no illegality of this kind under the lex specialis regime of Resolution 1244.132
It is important to recall that the ICJs pronouncement on no illegality referred only
narrowly to the issuing of the unilateral declaration of independence and did not
deal with the questions of statehood or recognition.133
In regard to the second question, in some previous situations of non-recognition
stemming from illegality of a state creation, there existed specic resolutions of UN
organs explicitly calling for non-recognition.134 It remains unclear whether a bind-
ing resolution or decision of a UN body is necessary for an obligation of non-recog-
nition to be triggered135 but, nevertheless, such a resolution or decision makes the
obligation denitive.136
Non-recognition has been called for in a number of General Assembly resolu-
tions.137 Further, there has been one instance when the Security Council acted under
Chapter VII when it called for non-recognition: after Southern Rhodesia proclaimed
itself a republic.138 In some other instances the Security Council issued non-Chapter
VII resolutions, yet according to the ICJ in the Namibia Advisory Opinion even
non-Chapter VII resolutions may be binding on all States Members of the United
Nations, which are thus under obligation to accept and carry them out.139 Notably,
when non-Chapter VII resolutions were in question, virtually full compliance with
the obligation to withhold recognition was achieved.
It needs to be noted that collective non-recognition has also been practised, in
a number of other situations without a formal United Nations resolution to that
eect.140 This suggests that states perceive themselves to be legally bound to with-
hold recognition in situations of illegal state creations even in the absence of resolu-
tions of the UN organs explicitly calling for recognition. The added value of reso-
an open violation of the Republic of Serbias sovereignty, the high-level Contact Group
accords, Kosovos Constitutional Framework, Security Council resolution ()
which is the basic document for the Kosovo settlement and other relevant decisions
of the Security Council. UN Doc. S/PV. ( February ), . On the other hand,
it was argued on behalf of the United Kingdom: Resolution () placed no limits
on the scope of that status outcome, and paragraph (a) of the resolution is clear that
the substantial autonomy which Kosovo was to enjoy within the Federal Republic of
Yugoslavia was an interim outcome pending a nal settlement. Ibid. .
See note above.
See above Chapter .d.
See notes - above.
McCorquodale, note above, .
Ibid.
See notes - above.
See SC Res. , UN Doc. S/RES/ ( March ).
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution (), ICJ
para ( June).
Crawford, note above, .
162 II. Kosovos Unilateral Declaration of Independence
lutions which explicitly call for non-recognition seems to be that they set out the
reasons for non-recognition and leave little room for states to interpret the question
of illegality of a state creation.
In the example of Kosovo, a specic resolution calling for non-recognition is ab-
sent. The interpretation of whether there exists an obligation to collectively withhold
recognition under Resolution 1244 is left to states and there is no unitary answer to
this question. The number of recognitions implies that at least seventy two states
believe that an obligation to withhold recognition does not apply under Resolution
1244.
A parallel may be drawn to East Timor. Upon Indonesias occupation, the Se-
curity Council adopted Resolutions 384 and 389, which referred to the territorial
integrity of East Timor and to the right of self-determination of its people and, in-
ter alia, recalled that, despite Indonesias occupation, Portugal was still regarded its
administrative power.141 The resolutions, however, did not specically call for non-
recognition of Indonesias authority over East Timor. When Portugal advanced the
argument that such an obligation follows from Resolutions 384 and 389, the ICJ held:
The Court notes that the argument of Portugal under consideration rests on the premise
that the United Nations resolutions, and in particular those of the Security Council, can
be read as imposing an obligation on States not to recognize any authority on the part of
Indonesia over the Territory and, where the latter is concerned, to deal only with Portugal.
The Court is not persuaded, however, that the relevant resolutions went so far.142
Certainly the circumstances of the East Timor question were dierent from those
in the Kosovo question and Resolutions 384 and 389 are not identical to Resolu-
tion 1244. Unlike in Resolution 1244, references to territorial integrity were made in
regard to the disputable territory itself (i.e. East Timor) not in regard to the parent
state. Also signicant, this was not a matter of a possibly illegal state creation but
of an illegal territorial presence and suppression of self-determination exercised in
the context of decolonisation. It is nevertheless signicant that the ICJ seems to
have implied that an obligation to withhold recognition can arise from a resolution
of the Security Council only if such a resolution explicitly calls for non-recognition.
Portugals interpretation, that such an obligation was implied from other provisions,
was rejected as unconvincing. Therefore it may well be that Resolution 1244 is not to
be read as a call for non-recognition. Just as with Resolutions 384 and 389, a call for
non-recognition could only be implied. However, this conclusion needs to be made
with caution. Indeed, such an interpretation of Resolution 1244 is expressly rejected
by some states143 and commentators.144
[I]n many cases, and this is true of the nineteenth century as of the twentieth, interna-
tional action has been determinative [for new state creations]: international organizations
or groups of States especially the so-called Great Powers have exercised a collective
authority to supervise, regulate and condition new state creations. In some cases the
action takes the form of the direct establishment of the new State: a constitution is pro-
vided, the State territory is delimited, a head of State is nominated. In others it is rather a
form of collective recognition although the distinction is not a rigid one.154
Such a conclusion also nds a support in the Quebec Case, where the Supreme Court
of Canada held that the success of a unilateral secession would ultimately depend on
international recognition.155
The collective state creations are therefore not only a matter of direct multilateral
state-making such as, for example, at the Congress of Berlin156 or settlements after
both world wars.157 And they are not always a matter of institutionalised internation-
al action. Collective state creations can also be a consequence of informal agreement
and/or concerted practice among certain states. It is the act of recognition which
can be used as a tool of an informal new state creation.
When acknowledging some constitutive eects in the act of recognition, caveats
accompanying the constitutive theory need to be considered.158 Indeed, if collective
recognition by certain states is considered equivalent to state creation, the inevitable
question that follows is how many and whose recognitions are necessary for collec-
tive recognition to be seen as state creation. However, this question could also be
asked from the other direction: in absence of a Security Council Resolution explicitly
calling for non-recognition, how many and whose withholdings of recognition are
See Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commis-
sion:A Contextual Study of Peace-Making Eorts in the Post-Cold War World (Alder-
shot: Ashgate, ), . See also generally Craven, note above.
Craven, note above, .
Crawford, note above, .
The Quebec Case, para . See also note above.
Ibid. .
Ibid. -.
See note above.
Chapter 5, Jure Vidmar Kosovo: Unilateral Secession and Multilateral State-Making 165
required that an entity is not considered a state? As the example of Kosovo shows,
this question is not easy to answer. In this particular situation, are seventy two rec-
ognitions enough for Kosovo to be considered a state? These controversies will be
dealt with in the broader context of international involvement in the post-1990 state
creations
See Crawford, note above, (for dissolution of the Soviet Union), ibid. (for dis-
solution of Czechoslovakia), ibid. (for the creation of Eritrea).
As a response to the crisis in the SFRY, the European Community (EC) and its member-
states, on August , founded the Conference on Yugoslavia, under the auspices of
which the Arbitration Commission was established. The Arbitration Commission was
chaired by the President of the French Constitutional Court, Robert Badinter, therefore
it is commonly referred to as the Badinter Commission. The mandate of the Commis-
sion and the scope of its decisions were, however, not entirely dened: The mandate
given to the [Commission] was somewhat vague. At the outset it was envisaged that
the [Commission] would rule by means of binding decisions upon request from valid
Yugoslavian authorities. Although no consultative procedure was formally established,
the [Commission] was in fact called upon to give one opinion at the request of Lord
Carrington, President of the Peace Conference similar requests were subsequently
made by the Serbian Republic, using the Conference as intermediary and the Council
of Ministers of the EEC. See Alain Pellet, The Opinions of the Badinter Arbitration
Committee: A Second Breath for the Self-Determination of Peoples, European Journal
of International Law (): . The scope of the legal issues that the Badinter Com-
mission dealt with was relatively broad. Indeed, [m]inority rights, use of force, border
changes, the rule of law, state succession, and recognition all eventually fell within the
Commissions brief. Grant, note above, . The opinions of the Badinter Commis-
sion were formally not legally binding; however, this was a body of strong legal persua-
siveness and its opinions importantly shaped international response to the dissolution
of the SFRY.
166 II. Kosovos Unilateral Declaration of Independence
that recognition is declaratory and that it did not perceive itself as a body which
creates states. Such a perception is obvious from the reasoning in Opinion 11 in
which it was, inter alia, held that Slovenia and Croatia became states on 8 October
1991 (the day of the expiry of the moratorium on their respective declarations on
independence),161 Macedonia on 17 November 1991 (the day of the adoption of a new
constitution),162 Bosnia-Herzegovina on 6 March 1992 (the day of the proclamation
of referendum results)163 and the FRY on 27 April 1992 (the day of the adoption of a
new constitution).164 These opinions imply a declaratory understanding of recogni-
tion. However, they were made subsequently, for state succession purposes, and are
not unproblematic.165
When the Badinter Commission delivered its Opinion 11, on 16 July 1993, Slovenia
and Croatia had already been recognised as independent states and were members of
the UN.166 Further, on 16 July 1993 there already existed the authority of the Badinter
Commissions previous opinions holding that the SFRY was in the process of disso-
lution (Opinion 1)167 and that this process was completed (Opinion 8).168
Yet on 8 October 1991, an authority holding that the process of dissolution was
underway in the SFRY was absent. Further, such a nding was supported by the fact
that four out of the SFRYs six constitutive republics had declared independence,169
while on 8 October 1991, Bosnia-Herzegovina had not yet declared independence170
and Macedonias declaration was fairly recent.171 The prevailing view on 8 October
1991 was that Slovenia and Croatia sought unilateral secession.172 In such a circum-
stance the acquisition of statehood is much more questionable and, arguably, essen-
tially depends on recognition.173
Slovenias and Croatias unilateral secessions would, arguably, ultimately depend
on recognition by the international community.174 However, recognition on 8 Octo-
ber 1991 was not certain. Caplan noted: As much as the Slovenes may have wished
and hoped for EC recognition, it was really not until the EC Council of Ministers
meeting of 16 December [1991] that they would be assured of it.175
Caplan argues that, if one reads history of this period backwards from its nal
denouement, the uncertainty is less apparent.176 Arguably, this is what the Badinter
Commission did when it subsequently held that Slovenia and Croatia became states
on 8 October 1991. It was the opinion of the Badinter Commission, delivered on 29
November 1991,177 which established the universally-accepted authority stating that
the SFRY was in the process of dissolution.
The opinions of the Badinter Commission were formally not legally binding178
and were not entirely followed by EC member states. Nevertheless, they importantly
shaped the state practice of the entire international community and, after such a
nding of the Badinter Commission, it was not disputed that the SFRY was a case of
dissolution. Such a view was adopted even by the Security Council.179 The Badinter
Commission therefore provided for a universally-adopted authority that dissolution,
rather than attempts at unilateral secession, was underway in the SFRY. This re-
moved the claim to territorial integrity of the SFRY and recognitions were ultimately
declaratory.180 The broader involvement of the EC, however, had signicant constitu-
tive eects.
b Montenegro
In 1992, Montenegro and Serbia founded the FRY.181 The self-government of both
constitutive republics was rmly rooted in the Constitution of the FRY.182 In the
period of the Miloevi regime, the Montenegrin self-governing organs did not con-
duct policies truly independent of Serbia and of the FRY. But nevertheless, after the
regime-change in October 2000,183 Montenegros constitutional status, the existence
of self-governing organs and the historical pedigree of territorial delimitation be-
tween Serbia and Montenegro184 made the Montenegrin push toward independence
much easier than this is the case in situations of unitary states. However, it needs to
be noted that the Constitution of the FRY did not foresee a mechanism for secession.
At the end of 2000, opinion polls suggested that independence was supported by
roughly fty percent of Montenegros population and expressly opposed by twenty-
ve percent.185 Another twenty-ve percent of Montenegros population did not have
an opinion on this question.186 This was a signicant dierence compared to 1998,
when independence was supported only by twenty-ve percent, rising to thirty per-
cent in 1999.187 Despite this increasing support for independence, a signicant share
of the population and inuential political parties determinately opposed the change
of Montenegros territorial status.188
With the experience of the armed conict associated with the dissolution of the
SFRY in mind, the international community feared that pro-independence pressures
could result in Montenegros unilateral declaration of secession and potentially lead
complicated issue, since its situation is dierent from yours. But youll be free in three
months. You just have to stick to your agreements. Caplan, note above, -,
quoting interview with Slovenian Foreign Minister Dimitrij Rupel.
See Constitution of the FRY ().
Each of the two republics had its own constitution and signicant powers in internal
matters as well as some limited competencies in foreign policy. See Constitution of the
FRY (), Articles and .
See Yugoslav Opposition Supporters Enter Parliament Building, CNN, October
. Accessed March . http://transcripts.cnn.com/TRANSCRIPTS///
bn..html.
Both Serbia and Montenegro were recognised as independent states at the Congress
of Berlin in . See Stevan Pavlowitch, Yugoslavia (London: Ernest Benn, ), .
Montenegros former international border, with only some minor modications, later
became its internal boundary in the Yugoslav state formations. See Peter Radan, The
Brake-up of Yugoslavia and International Law (London: Routledge, ), . In ,
this boundary was re-established as an international border.
See Crnogorsko javno mnjenje uoi referenduma ( December ). Accessed
March . http://www.aimpress.ch/dyn/pubs/archive/data//--pubs-
pod.htm.
Ibid.
Ibid.
Ibid.
Chapter 5, Jure Vidmar Kosovo: Unilateral Secession and Multilateral State-Making 169
After the end of the period of three years, member-states shall have the right to begin the
process of a change of the status of the state or to secede from the State Union of Serbia
and Montenegro.
The decision on secession from the State Union of Serbia and Montenegro shall be
taken at a referendum.
In case of secession of the state of Montenegro from the State Union of Serbia and
Montenegro, international documents referring to the Federal Republic of Yugoslavia, es-
pecially the United Nations Security Council Resolution 1244, shall only apply to the state
of Serbia as a successor.
The member-state which resorts to the right to secession shall not inherit the right to
international personality and all disputes shall be solved between the successor-state and
the seceded state.
In case that both states, based on the referendum procedure, opt for a change of the
state-status or independence, the disputable questions of succession shall be regulated in a
process analogical to the case of the former Socialist Federative Republic of Yugoslavia.194
This article indicates the transitional nature of the SUSM and reects the fact that
the creation of this state was a political compromise and the political reality was
The Act on Referendum on State-Legal Status of the Republic of Montenegro, The Of-
cial Gazette of the Republic of Montenegro No. / (March , ), Article .
See note above.
Svet ministara dravne zajednice Srbija i Crna Gora, Direkcija za informisanje (May
, ) Accessed March . http://www.info.gov.yu/saveznavlada/list_detalj.
php?tid=&idteksta=.
International Crisis Group, Brieng No. , Montenegros Referendum (May , ), .
Ibid.
Declaration of Independence of the Republic of Montenegro, The Ocial Gazette of the
Republic of Montenegro No. / ( June ).
GA Res. /, UN Doc. A/RES// ( June ).
Chapter 5, Jure Vidmar Kosovo: Unilateral Secession and Multilateral State-Making 171
c East Timor
The history of foreign rule of East Timor has been thoroughly examined elsewhere.202
For the purpose of this chapter it should suce to recall that after the Portuguese
colonial administration left East Timor, on 7 December 1975, Indonesia occupied the
territory, claiming, to be eecting East Timorese self-determination.203 In Portu-
gals understanding, however, East Timor was not properly decolonised and, conse-
quently, Portugal still regarded itself as an administering power.204 Such views were
also expressed by the UN organs.205 Importantly, East Timor remained on the list of
Non-Self-Governing territories.206 Further, Portugal continued to assert its formal
ties to East Timor throughout the occupation, notably by bringing a case about East
Timor against Australia to the ICJ in 1991.207
See generally Bilveer Singh, East Timor, Indonesia and the World: Myths and Reali-
ties (Singapore: Singapore Institute of International Aairs, ); Heike Krieger and
Dietrich Rauschning East Timor and the International Community: Basic Documents
(Cambridge: Cambridge University Press, ); John Taylor, East Timor: The Price of
Freedom (); Paul Hainsworth and Stephen McCloskey, The East Timor Question:
The Struggle for Independence from Indonesia (London: I. B. Tauris, ); Ian Martin,
Self-determination in East Timor: The United Nations, the Ballot, and International
Intervention (Boulder and London: Lynne Rienner, ).
Ralph Wilde, International Territorial Administration: How Trusteeship and the Civi-
lizing Mission Never Went Away (Oxford: Oxford University Press, ), .
Ibid. .
SC Res. , UN Doc. S/RES/ ( December ), paras. . A similar view was
previously expressed by GA Res. (XXX), UN Doc. A/RES/ ( December
); SC Res. , UN Doc. S/RES/ ( April ), especially paras and . GA Res.
/, UN Doc. A/RES// ( December ); GA Res. /, UN Doc. A/RES//
( November ), GA Res. /, UN Doc. A/RES// ( December ); GA Res.
/, UN Doc. A/RES// ( November ); GA Res. /, UN Doc. A/RES//
( November ), GA Res. /, UN Doc. A/RES// ( November ).
See Wilde, note above, -.
Ibid. . For more on the East Timor Case see Iain Scobbie, The Presence of an Absent
Third: Procedural Aspects of the East Timor Case, International Law and the Question
of East Timor (London and Leiden: Catholic Institute for International Relations and
International Platform of Jurists for East Timor, ), ; Roger Clark, The Sub-
stance of the East Timor Case in the ICJ, International Law and the Question of East
Timor (London and Leiden: Catholic Institute for International Relations and Interna-
tional Platform of Jurists for East Timor, ), ; Gerry Simpson, The Politics of
Self-Determination in the Case Concerning East Timor, in International Law and the
Question of East Timor (London and Leiden: Catholic Institute for International Rela-
tions and International Platform of Jurists for East Timor, ), .
172 II. Kosovos Unilateral Declaration of Independence
In 1999, the new Indonesian leadership indicated that it would be willing to dis-
cuss the future legal status of East Timor.208 On 30 August 1999, upon an agreement
between Indonesia and Portugal,209 a referendum on the future status of the territory
was held. At the referendum, which was supervised by the UN mission,210 the people
of East Timor overwhelmingly rejected an autonomy arrangement within Indonesia
and set the course toward independence.211 This decision led to an outbreak of vio-
lence, initiated by Indonesian forces.212 Subsequently, the Security Council, acting
under Chapter VII, on 15 September 1999, adopted Resolution 1264, which, inter
alia, authorised the establishment of a multinational force in the territory of East
Timor.213
On 25 October 1999, the Security Council, acting under Chapter VII, adopted
Resolution 1272, with which it established, a United Nations Transitional Adminis-
tration in East Timor (UNTAET), which will be endowed with overall responsibility
for the administration of East Timor and will be empowered to exercise all legisla-
tive and executive authority, including the administration of justice.214 Resolution
1272 in its preamble also rearmed respect for the sovereignty and territorial in-
tegrity of Indonesia.215 This resolution was a reminiscent of Resolution 1244 and it
was commonly argued that it, appeared to have been written by simply replacing
the word Kosovo from Resolution 1244 with East Timor.216 The international ter-
ritorial administration put in place in Kosovo thus obviously became the role model
for East Timor. Yet the search for the nal status in East Timor went in a dierent
direction than it did in Kosovo.
Indeed, Indonesia had obliged itself that, in case the East Timorese people chose
independence at referendum, it would, take the constitutional steps necessary to
terminate its links with East Timor.217 Unlike in the example of Kosovo, the consent
of the parent state was formally given. Subsequently, East Timors course to indepen-
dence was also armed in Security Council Resolution 1338, adopted on 31 January
Ibid.
See UN Doc. S// ( May ), especially Annex I.
See SC Res. , UN Doc. S/RES/ ( May ), especially paras. , , .
See Crawford, note above, .
Ibid.
SC Res , UN Doc. S/RES/ ( September ), para.
SC Res. , UN Doc. S/RES/ (October ), para. .
Ibid. para. .
Conor Foley, The Thin Blue Line (London: Verso, ), .
UN Doc. S// ( May ), Annex I, Article .
Chapter 5, Jure Vidmar Kosovo: Unilateral Secession and Multilateral State-Making 173
2001.218 After the declaration of independence on 20 May 2002,219 the new state was
admitted to the UN on 27 September 2002.220
East Timor was therefore a situation which had a colonial origin, yet its indepen-
dence was not a matter of decolonisation. Indeed, the real question was not indepen-
dence from Portugal but independence from Indonesia. International involvement
into this state creation was signicant and took place on the level of the UN. While
the international territorial administration, established by the Security Council un-
der Chapter VII of the UN Charter, established a legal situation similar to the one
put in place by Resolution 1244 in Kosovo, the mode of state creation in East Timor
was dierent. Indeed, there existed consent of the parent state as well as armation
by a Security Councils resolution (albeit not adopted under Chapter VII).
After East Timor proclaimed independence, there was no reason to dispute its
statehood. While recognitions in such a circumstance may be regarded as purely de-
claratory, the international involvement into the state creation itself had constitutive
eects. International involvement successfully procured Indonesias consent and the
international territorial administration, whose actions are attributable to the UN,221
supervised the transition toward statehood.
dence with the prior approval of a number of states, which also promised recogni-
tion in advance.223 However, unlike in other post-1990 state creations, the compet-
ing claim to territorial integrity was not removed and the emergence of the state of
Kosovo was not a matter of fact. Rather, some of the recognising states believed that
informally practised collective recognition and prior approval of the declaration of
independence could produce such a fact.
state exists, not the belief that an entity has good prospects of becoming a state in
the future.
What is, nevertheless, signicant in this particular situation is that the recogni-
tion texts commonly refer to Kosovos commitment to the Ahtisaari Plan and to
Resolution 1244,230 both of which severely curtail Kosovos sovereignty and design
the legal regime for a protected state.231 Since restraints on sovereignty were not
accepted by Kosovo voluntarily but in order to comply with the pre-existing legal
regime governing its territory,232 Kosovo, arguably, did not emerge as an independent
state but rather as an internationally protected state. This is what many recogni-
tion texts seem to acknowledge and, therefore, it is indeed questionable whether
the recognising states (or at least some of them) have recognised Kosovo as a fully
independent state,
One explanation could therefore be that the recognising states generally recog-
nise Kosovo as a protected state, with an international personality sui generis, but
not as a fully sovereign state. Such a conclusion is, however, not without diculties,
as recognition texts nevertheless refer to recognition of Kosovo as a state without
any adjectives which would imply that these are actually not full state recognitions.
Further, the status of a protected state does not necessarily imply that an entity is
not a state. Indeed:
See, inter alia, the recognition texts of the United States. Accessed January . http://
georgewbush-whitehouse.archives.gov/news/releases///-.html; the Unit-
ed Kingdom. Accessed January . http: //www.number.gov.uk/Page; Ger-
many. Accessed January . http://www.bundesregierung.de/nn_/Content/DE/
Pressemitteilungen/BPA///--anerkennung-des-kosovo.html, Switzerland.
Accessed January . http://www.eda.admin.ch/eda/en/home/recent/media/single.
html?id=, Canada. Accessed january, . http://w.international.gc.ca/min-
pub/Publication.aspx?lang=eng&publication_id=&docnum=.
See above, Chapter .b.
See notes - above.
Crawford, note above, .
176 II. Kosovos Unilateral Declaration of Independence
Although seventy two states have granted recognition and some of the recognis-
ing states obviously attempted to create the state of Kosovo through recognition and
political involvement prior to the Declaration of Independence, for now it remains
unclear whether the state creation has been successful. On the one hand, recognition
has not been universally granted, but, on the other, it was not collectively withheld.
Kosovo may be considered an internationally protected state. Although such a status
does not per se imply that Kosovo is not a state, the legal arrangement governing its
territory makes it doubtful whether Kosovo has a full international personality.
7 Conclusion
Kosovo declared independence upon the prior approval of a number of states, which
also promised recognition in advance. But there was no approval of the parent state
and this makes Kosovos Declaration of Independence unilateral under international
law.
There are strong reasons to conclude that from the aspect of international law,
unilateral secession is not per se illegal.234 This also follows from paragraph 81 of the
Kosovo Opinion. Yet it is very unlikely that it would result in a new state creation. In
the UN Charter era, states seem to give preference to the observance of the principle
of territorial integrity of other states. Despite the relatively high number of new state
creations after the end of the Cold War, in this period no new state has managed
to emerge when there existed a competing claim to territorial integrity by its par-
ent state. It remains questionable whether Kosovo is an exception to this rule and
whether parallels could be drawn to Bangladesh which, arguably, remains the only
successful unilateral secession in the UN Charter era.
There exist doubts of whether Kosovo meets the statehood criteria but entities
that did not satisfy them have become states before. There are also doubts regarding
the legality of the state creation but recognition was not collectively withheld. Views
on the legality of its creation dier and there is no universally accepted interpreta-
tion on whether there exists a collective duty to withhold recognition. Kosovo is thus
a situation in which the declaratory theory of recognition faces its limits.
Is Kosovo a state? If so, would it be a state without the recognitions which have
been granted? If recognition is always declaratory, why should be Kosovo considered
a state now, if it was not after the Declaration of Independence in 1991? The FRYs
claim to territorial integrity existed then and Serbias claim to territorial integrity
exists now. The government which declared independence in 1991 was not the ef-
fective government of Kosovo. The government which declared independence in
2008 was not an independent government of Kosovo. Similar legal considerations
to Kosovos status of a state under international law therefore existed in 1991 as exist
now. Notably, however, after the declaration of independence in 1991, recognition
was granted only by Albania, while after the 2008 Declaration of Independence rec-
ognition has been granted by seventy two states.
The most probable answer is that in the case of Kosovo an informally practised
collective recognition aimed to have the eects of a collective state creation. The
problem, however, is that the new state creation is not acknowledged by the entire
international community. To put it dierently, if recognition has constitutive eects,
are seventy two recognitions enough for a state creation? Whose and how many rec-
ognitions are in such circumstances necessary for an entity to be considered a state?
On the other hand, how many and whose withholdings of recognition are necessary
that an entity is not considered a state?
The argument that Kosovos statehood has not been consolidated might have
some merit,235 all the more so because Kosovos statehood does not seem to be dis-
puted only on the basis of the absence of the consent of the parent state and lack of
universally-granted recognition. It is also obvious that Kosovo does not satisfy all of
the statehood criteria and that it was created not as a fully sovereign but rather as
a protected state. The recognition texts of a number of the recognising states seem
to acknowledge the legal situation, which leads to serious doubts regarding Kosovos
statehood. One interpretation could therefore be that the informally practised col-
lective recognition did not attempt to create a fully sovereign state but rather an in-
ternationally protected state. It is questionable whether such a state can be deemed
to have full international personality. But such a conclusion is somewhat risky as the
recognising states nevertheless refer to recognition of Kosovo as a state and not as a
non-fully sovereign entity with an international personality sui generis. Further, even
protected states may still be considered states.
It is not possible to answer the question of whether the attempt at informal state
creation through recognition has successfully created a state. At the same time it
cannot be ignored that for many states Kosovo is a state (albeit with signicant re-
straints on its independence). After Kosovo declared independence in 1991 and after
it was put under international territorial administration in 1999, there was no doubt
that Kosovo was not a state. Yet, after a signicant number of recognitions, following
the Declaration of Independence in 2008, it is at least debatable whether Kosovo is
a state. The view that it is a state needs to be seriously considered. The shift in per-
ception of Kosovos legal status owes predominantly to recognition and to broader
international involvement in the Declaration of Independence.
HELEN QUANE
1 Introduction
Kosovos Declaration of Independence1 is often viewed as the nal phase in a process
that began with the violent break up of the former Yugoslavia. Opinion is divided,
however, on its legal signicance. For some states, Kosovo establishes a dangerous
precedent especially for frozen conicts in other parts of the globe. In particular, the
unilateral decision to declare Kosovo independent and its subsequent recognition by
72 states2 is seen as undermining the principles of state sovereignty and territorial
integrity in international law and potentially encouraging secessionist movements
elsewhere.3 For other states, Kosovo establishes no wider precedent because of its
unique character stemming from a range of factors including the war and ethnic
cleansing in the territory in 1998-1999, the extended period of international admin-
istration and the ongoing role envisaged for the international community post-in-
dependence.4 Viewed simultaneously as a negative precedent and a sui generis case,
it may be some time before the international community arrives at a consensus on
the issue. While the International Court of Justice has ruled that the Declaration is
not prohibited by international law,5 it is doubtful whether this Advisory Opinion in
itself will forge a consensus.6 Instead, attention has shifted back to the political arena
with the General Assembly welcoming the proposed dialogue between the parties
which is to be facilitated by the European Union.7
The present chapter explores the signicance of the Kosovo case-study from the
particular perspective of the right to self-determination and minority protection.
In doing so, it avoids the tendency to focus exclusively on the Declaration of Inde-
pendence and the international response to it. While these events are undoubtedly
important and merit detailed analysis, arguably they represent but one phase in the
Kosovo case-study. It is submitted that there are three distinct though inter-related
phases in the international communitys response to Kosovo and each one has its
own signicance in terms of the development of international law on self-determi-
nation and minority protection. Broadly speaking, the rst phase comprises the pe-
riod up to but not including the adoption of UN Security Council Resolution 1244 on
10 June 1999. The distinctive feature of this phase is the international communitys
emphasis on halting the repression and humanitarian crisis in Kosovo while pro-
moting a settlement that would ensure meaningful self-administration8 for Kosovo
within the Federal Republic of Yugoslavia (FRY). The second phase begins with the
mandate for the international administration of Kosovo, encompasses the develop-
ment of the Kosovo Provisional Institutions of Self-Government and concludes with
the failure of the parties to reach agreement on the status of the territory during
talks brokered by Martti Ahtisaari, the UN Secretary-Generals Special Envoy for
the Future Status of Kosovo. The international communitys approach to autonomy
for Kosovo and to the territorial integrity of the FRY during this period distinguishes
it from the approach adopted during the previous phase. The third phase begins with
the Comprehensive Proposal for the Kosovo Status Settlement circulated by Martti
Ahtisaari in February 2007 and continues to the present. The distinguishing fea-
tures of this phase are the increasing support among some though not all sections of
the international community for an independent Kosovo, the willingness of several
states to address explicitly the issue of self-determination both at the level of general
principle and in the specic context of Kosovo, and the ICJs Advisory Opinion that
the Declaration of Independence did not violate international law. Although each of
these three phases is distinct, there is a clear inter-relation between them and they
may be viewed as part of a continuum in terms of Kosovos potential contribution to
the development of self-determination and minority protection in international law.
One also has to acknowledge that Kosovo cannot be viewed in isolation. In as-
sessing its legal signicance, it must be placed in its wider context. Over the past
ten years, there have been far-reaching developments concerning the right to self-
determination and minority protection at the global level. It is now possible to refer
to a legal right to internal self-determination where previously it was a rather under-
developed and uncertain component of the self-determination principle in interna-
tional law.9 More radically, there has been some departure from the purely territorial
concept of a people that has prevailed in international law with the recognition that
indigenous peoples have a right to self-determination,10 thereby opening up a host of
complex issues not least about how one can reconcile competing self-determination
claims within states. Further, the general consensus among states that indigenous
peoples have a right to internal though not external self-determination11 also departs
from the right to self-determination as traditionally conceived as it limits the range
of options available to the people concerned. Related to this, are interesting though
still tentative developments concerning the interplay between self-determination
and minority protection that call into question the dichotomy between a people
and a minority and their respective rights. All these developments have a certain
resonance in the Kosovo case-study. Consequently, in assessing its legal signicance
one has to do so against the backdrop of these developments including the extent
to which the state practice on Kosovo is consistent with these developments and/or
attempts to extend them in new directions so that it can be regarded as contribut-
ing to the evolution of the right to self-determination and minority protection in
international law.
to independence for Kosovo is signicant for several reasons.15 In terms of the right
to external self-determination, it rearms that this right cannot be invoked simply
on the grounds of being a distinct and territorially cohesive ethnic group that wishes
to secede from an existing state. This is consistent with the territorial concept of a
people that traditionally has been adopted in international law and which denes a
people as the entire population of a state or colony. It is also signicant in terms of
gauging international support for the existence of a remedial right to external self-
determination.16 The continuing adherence to the principle of territorial integrity
even in the face of a level of repression that prompted sections of the international
community to intervene militarily in the FRY17 as well as the absence of any discus-
sion of remedial self-determination within the international community tends to
call into question the existence of such a right at least at this point in time.18
Throughout this period, the EU, e.g. remained, rmly opposed to independence. See
Cardi European Council: Declaration on Kosovo, June . The International Con-
tact Group comprising the United States, the Russian Federation, the United Kingdom,
Italy, France and Germany also refused to support independence. See, e.g. Statement on
Kosovo adopted by members of the Contact Group on July , para. . Reecting
the international consensus at the time, the UN Secretary-General urged the Kosovo
Albanian leadership to negotiate a, peaceful and mutually acceptable settlement short
of independence. See Report of the Secretary-General prepared pursuant to Resolution
() of the Security Council, UN Doc. S// ( June ), para. (empha-
sis added). See also, debates within the Security Council, UN Doc. S/PV. ( Octo-
ber ) (Japan) and within the General Assembly, UN Doc. A//PV. ( December
), , , (Albania, China, India).
See, generally, James Crawford, The Creation of States in International Law, nd Edi-
tion (Oxford: Clarendon Press, ), -; Alain Pellet, Legal Opinion on Certain
Questions of International Law Raised by the Reference, in Self-Determination in Inter-
national Law: Quebec and Lessons Learned, ed. Anne F. Bayefsky (The Hague/London/
Boston: Kluwer Law International, ), -; and Yash Ghai, Public Participation
and Minorities (London: Minority Rights Group International, ), . On the exist-
ence of a right to remedial self-determination in the specic context of Kosovo, see
Marc Weller, Negotiating the Final Status of Kosovo, Chaillot Paper No. (),
-; and Jurgen Friedrich, UNMIK in Kosovo: Struggling with Uncertainty, Max
Planck Yearbook of United Nations Law (): -.
NATO air strikes against the FRY began on March and were justied on the
grounds of halting the violence, supporting the completion of negotiations on a politi-
cal settlement for Kosovo and thereby avoiding a humanitarian catastrophe: see Letter
dated January from the Secretary General of NATO to the President of the FRY,
UN Doc. S// ( February ). The air strikes were controversial and some
questioned their legality. See, e.g. Communique issued by the Rio Group, March
, UN Doc. S// ( March ).
International practice seems to have evolved on this point: see, further, the text accom-
panying notes - and - below.
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 185
Admittedly, the international community did not preclude any negotiated out-
come provided it was acceptable to both parties.19 This is hardly surprising and en-
tirely in keeping with conventional interpretations of self-determination whereby
the entire population of a state has the right to change its international status, for
example, by agreeing to break up into separate states. If it had been possible to reach
a negotiated settlement, even one that recognized Kosovo independence, then by
virtue of its consensual nature it would have been no dierent to the break up of
Czechoslovakia and could have been accommodated within the existing framework
of the right to external self-determination under international law. Consequently,
in terms of the external dimension to self-determination, state practice during this
rst phase would appear to have simply conrmed the existing contours of the right.
In terms of the internal dimension to self-determination, the picture is more
complex. The international communitys repeated calls for a negotiated settlement
based on a substantial measure of autonomy for Kosovo20 might be interpreted as
recognition of a form of internal self-determination for the population of Kosovo
particularly when viewed in the light of developments then taking place at the global
level. At this time, there was a growing consensus that autonomy could be regarded
as a form of self-determination at least within the specic context of self-determina-
tion for indigenous peoples.21 However, even this rather modest proposal for a fairly
self-contained category of peoples remained controversial and it was to be almost
another ten years before agreement could be reached on the issue by the interna-
tional community. On balance it is doubtful whether, at this point in time, the in-
ternational communitys support for autonomy for Kosovo can be equated with rec-
ognition of a limited right to internal self-determination for the Kosovo Albanians.
A review of state practice at this time suggests that, rather than reecting any
a priori right of the Kosovo Albanians, there was a pragmatic, functional basis to
international support for autonomy. As the UN Secretary General observed, it was
necessary to provide the people of Kosovo with the degree of autonomy that is con-
sistent with their need to live their lives free from terror and violence. What form
such autonomy will take will depend not only on the wishes of the Kosovars, but also
on the actions of the Yugoslav authorities.22 This functional approach to autonomy
can also be gleaned from the numerous references to OSCE standards in the calls for
a negotiated settlement.23 An examination of the OSCE documents reveals that au-
tonomy was regarded as one possible means of protecting minorities and was viewed
Compare, e.g. Rambouillet Accords, Chapter I, Article VII, para. , with the Framework
Convention for the Protection of National Minorities, , Articles -, -, , ,
.
Compare, e.g. Rambouillet Accords, Chapter I, Article VII, para. (a)(iii) and (b) with
the Framework Convention for the Protection of National Minorities, , Arts. -,
().
Rambouillet Accords, Chapter I, Article VII, para. (a)(vi).
Notably, to end the repression in Kosovo, stop the NATO bombing of Belgrade and
restore the role of the UN in resolving the crisis.
See preambular paras. -.
See operative paras. -, , concerning the establishment of an international civil and
security presence in Kosovo. For the purposes of this chapter, attention focuses on the
international civil presence established to provide an interim administration in Kosovo.
See operative para. (a). See also, preambular para. .
See operative para. (e).
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 189
ers gradually being devolved to them by the SRSG in line with Resolution 1244s
commitment to self-government for Kosovo. While the international community
initially took the view that the PISG should meet certain conditions before status
negotiation could begin (Standards before Status)48 it subsequently abandoned that
approach when it became evident that ongoing uncertainty about Kosovos status
was fuelling political instability and impeding economic development in the re-
gion.49 Adopting a Standards with Status approach,50 the status negotiations began
under the auspices of the international community but reached a stalemate with
neither party prepared to concede on the vital issue of sovereignty over the terri-
tory. Each of these developments and the associated state practice is signicant in
assessing the extent to which this phase contributed to expanding the right to self-
determination and minority protection in international law.
As the UN Human Rights Committee has observed, internal self-determina-
tion includes the right of a people, to choose the form of their constitution and
government.51 Viewed in this light, one can see that Resolution 1244 impacts on the
right to internal self-determination in at least two ways. If one adopts the traditional
territorial concept of a people, then it is clear that it impacts on the right of the en-
tire population of the FRY to determine their own internal system of government.
At the very least, the Resolution precludes them from establishing a unitary system
of government or indeed the opportunity of governing over the entire territory of
the state. Admittedly, the Resolution does at one point welcome the FRYs agree-
ment to the international presence in Kosovo which might suggest a consensual
basis to the deployment of the international presence that would be consistent with
the traditional interpretation of internal self-determination.52 However, it seems that
the international presence was not dependent on the consent of the FRY. No Status
Agreement was concluded prior to the deployment of the international civil pres-
ence and suggestions that one should be concluded were rejected by the SRSG on
the ground that UNMIKs mandate was based on Chapter VII of the Charter rather
than on the FRYs consent.53 This unilateral action by the Security Council suggests
that limits can be imposed on the right to self-determination where it is necessary in
the interests of international peace and security.
See, e.g. discussions within the Security Council on this issue, UN Docs. S/PV. (
April ), ( July ), ( September ), ( December ),
( February ), ( April ), ( July ), ( August ),
( September ), ( October ), ( December ), (
December ), and ( April ).
See, e.g. debates within the Security Council, UN Docs. S/PV. ( February ),
( May ), and ( October ).
See, e.g. UN Doc. S/PV. ( October ).
General Comment No. : The right to participate in public aairs, voting rights and the
right of equal access to public service (Article ): UN Doc. CCPR/C//Rev./Add. (
July ).
Operative para. .
See UN Doc. S/PV. ( August ).
190 III. Kosovo and Self-Determination and Minority Rights
Resolution 1244 is also signicant in terms of its possible contribution to the de-
velopment of a right to internal self-determination for the people of Kosovo54 par-
ticularly when it is viewed in the light of the relevant state practice and global trends.
While its endorsement of a substantial measure of autonomy for Kosovo may be
seen as a continuation of the international communitys policy during the previous
phase, there are some important dierences. It is notable, for example, that there is
a shift in language from supporting meaningful self-administration55 to support-
ing self-government56 in Kosovo. It is the rst time that the term was used in any
of the Security Council resolutions on Kosovo. Given the caution displayed in the
wording of the various UN Resolutions on Kosovo57 and the association of the term
self-government with self-determination in the UN Charter58 and in the Declara-
tion on the Rights of Indigenous Peoples,59 it is questionable whether one can dis-
miss this change purely as one of semantics. More importantly, there seems to have
been some willingness to recognize a right to self-determination for the people of
Kosovo.60 Even Serbia seems to have implicitly recognized such a right albeit one
limited in scope. Referring to Kosovos right to substantial self-government, it ar-
gued against recognizing Kosovo independence as it would, transform the right to
See also, Andreas Zimmermann and Carsten Stahn, Yugoslav Territory, United Na-
tions Trusteeship or Sovereign State? Reections on the Current and Future Legal Sta-
tus of Kosovo, Nordic Journal of International Law (): -, and Friedrich,
note , , albeit for dierent reasons to those canvassed here. For a dierent view,
see, e.g. Alice Lacourt, The Approach of the UK, Chatham House International Law
Discussion Group Meeting, April , available from www.chathamhouse.org/
events/-/type/past/year/. Last accessed October .
See Security Council Resolutions , UN Doc. S/RES/ ( March ), operative
para.; , UN Doc. S/RES/ ( September ), preambular para. ; and ,
UN Doc. S/RES/ ( October ), preambular para. .
See Security Council Resolution , UN Doc. S/RES/ ( June ), operative
para. (a).
See, e.g. the debates concerning the UN General Assembly Resolution on the Situation
of Human Rights in Kosovo, UN Doc. A//PV. ( December ), (Albania).
See, e.g. Article of the UN Charter and the discussion of this provision in Helen
Quane, The UN and the Evolving Right to Self-Determination, International and
Comparative Law Quarterly (): -, -. Indeed, Afghanistan subse-
quently referred to Article in its recognition of an independent Kosovo. See, State-
ment on the Recognition of Independence of Kosovo, February , available from
www.Kosovothanksyou.com. Last accessed October . The analogy between Ko-
sovo and Trust Territories and by implication their right to self-determination is also
evident in the comparison drawn at one point between Kosovo, East Timor and West-
ern Sahara although this provoked sharp criticism from the Russian Federation: see UN
Docs. S/PV. ( April ), and S/PV. ( October ).
See Article of the Declaration.
See, e.g. the references to self-determination in the debates in the Security Council, UN
Docs. S/PV. ( November ), (Albania); S/PV. ( December ), (Ma-
laysia); S/PV. ( June ), (Pakistan); and S/PV. ( May ), (Switzerland).
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 191
identity of the group and/or their fundamental rights and freedoms.65 The interna-
tional communitys approach to Kosovo during this second phase can be seen to
echo these developments.66 To the extent that there was support for some form of
self-determination for the people of Kosovo, it seems to have been attributed at least
in part to the level of repression they had experienced in the 1990s as well as the on-
going legacy of that repression. While this may be seen to uphold the idea of a reme-
dial right to self-determination canvassed in sections of the academic literature,67 it
departs from it in one material respect. This functional approach does not envisage
any automatic right to external self-determination for the repressed group. Instead
the emphasis during this phase was on autonomy for Kosovo and facilitating ne-
gotiations between the parties with a view to reaching an agreement on its future
status. While some states have recently taken the view that this was not incompat-
ible with the recognition of a remedial right to external self-determination for the
Kosovo Albanians,68 it is signicant that no reference was made to such a right either
by these states or others at the time. On balance, it seems that while the people of
Kosovo might have had a right to self-government it did not extend automatically to
a right to determine unilaterally the status of the territory during this second phase.
In this regard, the state practice suggests a more graduated approach to self-de-
termination. It occupies a middle ground between absolute adherence to the prin-
ciple of territorial integrity and an automatic right to secession whenever the state
oppresses a distinct ethnic, linguistic or religious group within its territory. For this
reason, it may attract more state support and have greater prospects of being re-
ected in international law than the claim to remedial self-determination has had
to date.69 There are also strong policy considerations in favour of such an approach,
notably, its ability to operate as an ongoing incentive for state compliance with in-
ternational human rights standards while its underlying rationale enables a distinc-
tion to be drawn between protecting the legitimate interests of minority groups
and encouraging ethno-nationalist secessionist claims. By focussing on the eec-
tive protection of the group concerned through internal political structures rather
than automatically sanctioning the break up of the state, it can also go some way
to reducing the risks of fragmentation and instability at the international level. At
the same time, one has to consider the time element in assessing the utility of this
See, e.g. Report of the Working Group Established in Accordance with Commission
on Human Rights Resolution /, UN Docs. E/CN.// () and CCPR/C/
GEO// () (Georgia) concerning Indigenous Peoples and other ethnic groups
respectively.
See, e.g. UN Doc. S/PV. ( February ), and the Statement of the Contact
Group on Kosovo, January , available from www.securitycouncilreport.org/atf/
cf/BBFCFB-D-EC-CD-CFEFFFFD/KosStatementin
LondonbytheContactGroupJan.pdf. Last ac-
cessed October .
See note above.
See notes - below.
See note below.
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 193
approach. It is signicant that while autonomy might have been the original goal of
many Kosovo Albanians, as time went by and the level of repression worsened, this
shifted to the goal of complete independence for Kosovo.70 Concerns about the risks
of encouraging secessionist claims by recognizing even a limited right to internal
self-determination, especially in the light of the subsequent Declaration of Indepen-
dence, suggest that states will proceed cautiously. Nevertheless, state practice during
this phase suggests a useful pathway for developing a more nuanced approach to
self-determination in contrast to the traditional zero-sum approach that has pre-
vailed to date and which has done little to facility the prevention or resolution of
internal conicts.
In terms of a right to external self-determination for the people of Kosovo, it is
possible to discern at least three approaches to this issue in the state practice during
this period. Several states were willing to recognize explicitly a right to indepen-
dence for the people of Kosovo.71 Signicantly, even for these states, there was no
question of this right automatically trumping the right to self-determination of the
rest of the population of the state. As one state observed, independence for Kosovo
could not be imposed on Serbia.72 For these states, the implementation of the right
required negotiations between the parties. This is consistent with current trends
where the emphasis is on good faith negotiations to ensure the eective implemen-
tation of concurrent self-determination rights.73 It is submitted that there are strong
policy considerations in favour of embedding such an approach in international law
and abandoning the traditional approach to self-determination. By asserting that
the will of the people is paramount, the latter has done much to encourage abso-
lute approaches to self-determination and little to facilitate compromise in resolving
conicts arising from competing self-determination claims.
The vast majority of states, however, made no reference to the right to self-deter-
mination during the debates on Kosovos future status. Instead, the tendency was to
refer to the need for a political settlement that was acceptable to or that reected
the wishes of the population of Kosovo.74 It is questionable whether these references
can be taken as implicit recognition of a right to external self-determination for the
people of Kosovo. Detailed analysis of these references reveals that they reect two
distinct approaches, each of which limit the potential precedent value of the Kosovo
See, e.g. OSCE, Monthly Report on the Situation in Kosovo pursuant to the requirements
set out in the UN Security Council Resolutions and , UN Doc. S// (
February ).
See UN Docs. S/PV. ( November ), (Albania), S/PV. ( December
), (Malaysia), S/PV. ( June ), (Pakistan), and S/PV. ( May ),
(Switzerland).
See, e.g. UN Doc. S/PV. ( May ), (Switzerland).
See, e.g. Article of the UN Declaration on the Rights of Indigenous Peoples interpreted
in the context of preambular paras. -.
See, e.g. the views expressed by the UK, US, Contact Group, France, Argentina, Den-
mark and the Russian Federation: UN Docs. S/PV. ( February ), S/PV.
( September ), S/PV. ( December ), and S/PV. ( June ).
194 III. Kosovo and Self-Determination and Minority Rights
situation at least during this particular period. The rst approach is epitomised by
the Russian Federation which, while stressing the need for a solution acceptable to
the people of Kosovo, also stressed the need to respect the territorial integrity of
Serbia without precluding any negotiated outcome.75 This emphasis on a consensual
basis to any settlement while adhering to the principle of territorial integrity as a
default position reects the traditional approach to self-determination. According to
this approach, the entire population of the state can agree to the break up of the state
but in the absence of such an agreement the territorial integrity of the state is main-
tained. Consequently, the Russian Federations approach simply rearms the right
to external self-determination as it has traditionally existed in international law. The
second approach is epitomised by the United States which, while stressing its sup-
port for a negotiated settlement, seemed willing to countenance independence for
Kosovo in the event of negotiations failing.76 This change of policy was justied on
the ground that the Kosovo situation was sui generis due to the extended period
of international administration, the events surrounding the SFRYs disintegration,
and the ethnic cleansing and humanitarian crisis of 1998/1999.77 It also reected the
widespread perception that the ongoing uncertainty about Kosovos status was un-
sustainable and was fuelling instability in the region. Viewed in context, this partic-
ular state practice appears more as an ad hoc response to the exigencies of a specic
situation rather than any attempt to expand the right to external self-determination
beyond its current connes.
In terms of minority protection, several trends are discernible. During this phase,
minority protection focussed exclusively on the Serbian and other non-Albanian
communities in Kosovo in contrast with the previous phase where the emphasis was
on protecting Kosovo Albanians within the FRY.78 Clearly, this shift in focus was
necessitated by the changed circumstances on the ground. As the majority commu-
nity in Kosovo, ethnic Albanians were now in control of the Provisional Institutions
of Self-Government and no longer in need of the type of minority guarantees that
See UN Doc. S/PV. ( February ). See also, the views expressed by China and
Argentina: UN Docs. S/PV. ( February ), S/PV. ( September ), and
S/PV. ( December ).
See, e.g. UN Docs. S/PV. ( February ), S/PV. ( September ), and S/
PV. ( December ).
See, e.g. the views of the UK, France, Slovakia, US, and the EU: UN Docs. S/PV. (
February ), S/PV. ( September ), and S/PV. ( December ).
The sui generis character of Kosovo was rejected by Serbia and Montenegro, the Russian
Federation and the Ukraine. See, UN Docs. S/PV. ( February ), S/PV. (
September ), and S/PV. ( December ).
See, e.g. UN Docs. S/PV. ( May ), S/PV. ( June ), S/PV. ( July
), S/PV. ( July ), S/PV. ( January ), S/PV. ( April ),
S/PV. ( August ), S/PV. ( February ), S/PV. ( June ), S/
PV. ( September ), S/PV. ( December ), and Guiding Principles of
the Contact Group for a Settlement of the Status of Kosovo, November . Available
from www.unosek.org/docref/ContactGroup-TenGuidingprinci-
plesforAhtisaari.pdf. Last accessed October .
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 195
could be found in the Rambouillet Accords. Even so, this development still has some
signicance beyond Kosovo especially when viewed in the wider global context. To
the extent that the self-governing institutions could be viewed as a form of internal
self-determination for the Kosovo Albanians, they suggest that there can be some
movement between the concepts of a people and a minority so that a group formerly
classied as a minority could become a people at least for certain self-determina-
tion purposes. Indeed, if Kosovo had remained part of Serbia, the Kosovo Albanians
could have been simultaneously a people with a right to internal self-determination
in Kosovo and a minority entitled to minority protection within the wider Serbian
State. This erosion of the traditional dichotomy between a people and a minority
is also evident in the Concluding Observations of some of the UN Human Rights
Treaty Monitoring Bodies where reference is made simultaneously to the right to
self-determination and to minority rights in dealing with the plight of indigenous
peoples.79 Admittedly, these developments are still tentative but arguably they are
an inevitable consequence of any recognition that groups within states have a right
to some form of internal self-determination. As such a right evolves in international
law there will be a clear need to revisit the traditional distinction between a people
and a minority and the scope of their respective rights.80 In this regard, Kosovo is a
useful precedent in helping to reinforce the need for such a review.
One can also see some changes in the nature and scope of the rights aorded to
communities during this particular phase. This is evident from the Constitutional
Framework for Provisional Self-Government adopted in May 2001. Chapter 4 of this
document outlines the rights of communities and their members. Once again, the
content of these rights reect some of the highest international standards in the
sphere of minority protection. However, unlike the Rambouillet Accords, they allow
more discretion in their implementation particularly in the area of public funding for
minority activities.81 In this respect, the Constitutional Framework is more in keep-
ing with the approach usually adopted in international minority rights instruments.
There is also a subtle shift in emphasis in terms of the nature of the rights protected.
In contrast with the clear armation of collective rights in the Rambouillet Accords
where the rights of communities are recognized as separate and distinct from those
of their members, the Constitutional Framework simply refers to the rights of com-
munities and their members.82 The implication is that the rights, identical in their
See, e.g. the Concluding Observations and Recommendations of the Human Rights
Committee: UN Docs. GAOR Supplement No. , , (Canada, Mexico),
GAOR Supplement No. , , (Norway, Australia), GAOR Supplement No. ,
(Sweden), GAOR Supplement No. , (Finland), GAOR Supplement No. ,
, , (Canada, Norway, United States), GAOR Supplement No. , (Chile),
CCPR/C/BRA/CO/, para. (Brazil), and CCPR/C/PAN/CO/, (Panama).
This dichotomy is also being challenged in the literature: see, e.g. Friedrich, note , ,
and Peter Radan, The Break-up of Yugoslavia and International Law (London and New
York: Routledge, ), .
See Chapter .
Para. ..
196 III. Kosovo and Self-Determination and Minority Rights
content, can be exercised concurrently. This means that an individual is not depen-
dent on the group for the enjoyment of their rights. In the present context, this is
signicant as it can reduce the risk of fuelling centrifugal tendencies associated with
collective rights. It is also more in line with the relevant European standards in this
area83 and their emphasis on protecting the rights of persons belonging to a minority
rather than the minority as a group. This shift in emphasis is not surprising given
the increasing recognition that Kosovos future, and indeed that of Serbia, lay within
the European Union84 and that any political settlement should reect common Eu-
ropean standards. At a more general level, it also suggests that minority protection
in Europe will continue to be seen within the framework of individual rather than
collective rights even in situations of intense inter-communal conict.
What emerges during this period is that more conventional approaches to mi-
nority protection were counterbalanced by signicant developments concerning the
right to self-determination. Undoubtedly, the most important was the existence of
some support for a right to internal self-determination for the people of Kosovo
particularly when set against the backdrop of global developments in this area. It
suggests that international law may be moving towards a more gradated approach to
self-determination, one that recognizes that there can be objective justication for
recognizing a limited form of self-determination for particular groups within states.
Of course, there will be risks associated with such an approach notably that it could
encourage secessionist claims. Nevertheless, with the passage of time, it is possible
that this concept of a more limited form of self-determination will gain as much cur-
rency as that which existed during the decolonization period and this could go some
way to tempering unrealistic expectations.
At the same time, one has to recognize that Kosovo both supports and under-
mines these global developments. Viewed solely within the framework of this second
phase, it supports them by suggesting a limited right to self-determination for the
people of Kosovo while rejecting any unilateral right of secession. However, Kosovos
Declaration of Independence in the third and nal phase may simply reinforce state
concerns about the risks associated with this approach and impede its development
in international law in respect of groups other than indigenous peoples. Clearly, the
manner in which one analyses state practice during this third phase will have im-
portant implications not only for the right to external self-determination but also for
global developments concerning the right to internal self-determination.
4 Phase III: The Ahtisaari Plan, the Declaration of Independence and the
International Response
With deadlock in the negotiations and Kosovos existing status unsustainable,
the Secretary Generals Special Envoy adopted what became known as the Ahti-
This was recognized explicitly in Part IV of the Standards for Kosovo document.
See UN Doc. S/PV. ( February ). See also UN Docs. S/PV. ( December
), (UK), and S/PV. ( February ).
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 197
saari Plan.85 Its endorsement of independence for Kosovo, albeit subject to certain
conditions,86 marked the beginning of the third phase in the international com-
munitys engagement in Kosovo. The Plan was accepted by Kosovo but rejected by
Serbia.87 Following other unsuccessful attempts to reach a settlement,88 the Declara-
tion of Independence was adopted on 17 February 2008.89 Drawing heavily on the
Ahtisaari Plan, the Declaration contained a series of unilateral and legally binding
commitments concerning Kosovos international status, structure of government,
protection of minority communities and the maintenance of an international pres-
ence post-independence.90 This, combined with the entry into force of a new Con-
stitution in June 2008,91 necessitated a fundamental reorganization of the structure
and functions of UNMIK.92 These actions have deeply divided the international
community. To date, 72 States have recognized Kosovo independence93 with the re-
mainder either condemning it94 or staying silent on the issue. With the international
See Comprehensive Proposal for the Kosovo Status Settlement, UN Doc. S///
Add. ( February ).
Ibid. especially Articles ., ., ., , ., -.
See Report of the EU/US/Russia Troika on Kosovo, December . Available from
www.ico.kos.org/pdf/ReportoftheEU-US-RussiaTroikaonKo-
sovo.pdf. Last accessed October . The international community was similarly
divided. For example, while the Russian Federation rejected the Plan, NATO, the EU,
Peru, France, Ghana, Panama and the UK supported it: see UN Doc. S/PV. ( May
).
The EU/US/Russia Troika on Kosovo attempted to facilitate a negotiated settlement be-
tween September and December . See Statement of Troika Meeting with Belgrade
and Pristina, New York, September , Report of the EU/US/Russia Troika on Ko-
sovo, December , available from www.ico-kos.org/?id=. Last accessed October
.
For a discussion of the Declaration, see, Colin Warbrick, Kosovo: the Declaration of
Independence, International and Comparative Law Quarterly (): .
See in particular, preambular para. , operative paras. -, , .
Available from www.assembly-kosova.org/?cid=,,. Last accessed October .
See UN Docs. S/PV. ( June ); S/PV. ( July ); and S/PV. (
November ).
The UK, France, US, Turkey, Albania, Afghanistan, Costa Rica, Australia, Senegal,
Latvia, Germany, Estonia, Italy, Denmark, Luxembourg, Peru, Belgium, Poland, Swit-
zerland, Austria, Ireland, Sweden, Netherlands, Iceland, Slovenia, Finland, Japan, Can-
ada, Monaco, Hungary, Croatia, Bulgaria, Liechenstein, South Korea, Norway, Marshall
Islands, Nauru, Burkina Faso, Lithuania, San Marino, Czech Republic, Liberia, Sierra
Leone, Colombia, Belize, Samoa, Portugal, Montenegro, Macedonia, UAE, Malaysia,
Micronesia, Panama, the Maldives and Honduras.
See, e.g. UN Doc. S/PV. ( June ), (Russian Federation, Serbia). Others ex-
pressed concerns about the unilateral declaration of independence. See, e.g. UN Docs.
S/PV. ( November ), (South Africa); and A//PV. ( October ), (Co-
moros).
198 III. Kosovo and Self-Determination and Minority Rights
ture of both Serbia and Kosovo lies within Europe, it is possible that pressure will be
brought to bear on the parties to agree, at least nominally, to a nal status solution.
Indeed, General Assembly Resolution 64/298 may lend some support to this view. At
the very least, it suggests that there is still some prospect of a negotiated settlement.
If this prospect ever comes to fruition, then it will be possible to accommodate the
Kosovo precedent within the existing framework of international law whereby the
entire population of the state has the right to external self-determination and can
consent to the break up of the territory into separate states.
The third approach is the recognition of Kosovo as an independent state by over
one third of the worlds states. Admittedly, the fact that many of these states have
stressed the sui generis character of the Kosovo situation might be seen to limit
its signicance in terms of any development of the right to self-determination.101
On closer analysis, this is not necessarily the case. Comments about the sui generis
nature of Kosovo related only to the question of independence for the territory. As
such, they cannot be seen to limit the precedent value of Kosovo in terms of any
development of the right to internal self-determination particularly during the pre-
vious phase. Indeed, the fact that just under two-thirds of states have refrained from
recognizing Kosovo may go some way to addressing concerns that recognition of a
right to internal self-determination for groups within states will lead automatically
to recognition of a right to external self-determination for these groups.
Nevertheless, comments about the sui generis nature of Kosovo might be seen
to undermine its signicance in terms of the right to external self-determination.
Again, this would not be an entirely accurate reection of the relevant state practice.
This is because there were several variations in how the states viewed this issue.
For many states, Kosovo was unique because of the prolonged period of interna-
tional administration, the implications of the disintegration of the SFRY, the ethnic
cleansing and the humanitarian crisis.102 Others referred to the abolition of Kosovos
law and under Resolution 1244.106 Issues that had not preoccupied the international
community in the past, such as the identity of the authors of the Declaration, ac-
quired a heightened importance which was reected in the Written Statements.107
In the present context, however, what is signicant is what these Written Statements
have to say about the right to self-determination.
Of the 36 states that submitted Written Statements to the Court, the overwhelm-
ing majority made some reference to the right to self-determination, usually in terms
of its application to Kosovo but also at the level of general principle.108 A review
of the Written Statements submitted by these states suggests several distinct ap-
proaches to the right. The rst asserts that there is no right to independence outside
the colonial context.109 This implies a continuing adherence to the traditional in-
terpretation of self-determination whereby only colonial peoples (and peoples or-
ganised as states) have a right to external self-determination in international law. It
leaves open the question of internal self-determination and whether options short
of independence could be contemplated for groups within independent states. The
Written Statements suggest two main approaches to this question. The rst is that
groups within states exercise the right to self-determination in conjunction with the
entire population of the state.110 Again, this adheres to the traditional interpretation
of the right whereby the entire population of a state or colony has a right to inter-
nal as well as external self-determination. According to the second approach, there
is a right to some form of internal self-determination for groups within states.111
Given the number and range of states concerned this suggests an important shift in
thinking about the right to internal self-determination in international law. While
there is a general consensus that indigenous peoples have a limited right to internal
self-determination,112 these Written Statements represent the rst substantial body
See, e.g. Written Statements of United Kingdom, United States, France, Germany, Ja-
pan, Russian Federation and Serbia (April ).
See, e.g. Written Statements of Austria, Estonia, Germany and the United Kingdom
(April ).
Two-thirds of states commented on self-determination (Bolivia, Serbia, Romania, the
Slovak Republic, Cyprus, Iran, Estonia, Finland, Denmark, Slovenia, Latvia, Germany,
Netherlands, Poland, Russian Federation, Spain, Brazil, Switzerland, Ireland, Albania,
Argentina, Azerbaijan, the United Kingdom and the Maldives).
See Written Statement of the United Kingdom, April , and Written Statement of
Bolivia, July , and Serbia, July .
See Written Statement of Romania, April and Written Statement of Serbia, July
.
See Written Statements of Estonia, Finland, Germany, Netherlands, Poland and the Slo-
vak Republic (April ). It is implicit in the Written Statements of Cyprus, April
, and Iran, April , and in the Written Statements of those states that linked
remedial self-determination to a denial of internal self-determination for groups within
states (note below). It is also implicit in the Written Statements of Russia, April
, and Brazil, April , where there is some recognition that Resolution
embodies a right to internal self-determination for the Kosovo Albanians.
See, e.g. the UN Declaration on the Rights of Indigenous Peoples, Articles , , .
202 III. Kosovo and Self-Determination and Minority Rights
of state practice to explicitly recognize such a right outside the indigenous context.
Although it would be premature to regard these statements as reecting customary
international law, one cannot deny their potential signicance in terms of its future
development.
For several States, this right to internal self-determination was linked to a reme-
dial right to external self-determination.113 There was a clear functional basis to this
approach with one state observing that the absence of a right to external self-deter-
mination would render internal self-determination meaningless in practice since
there would be no remedy for a group which is not granted the self-determination
that may be due to it under international law.114 There was also a consensus that this
remedial right to self-determination was an ultima ratio.115 Consequently, for these
states there was no question of groups within states having an automatic right to ex-
ternal self-determination even in the event of serious repression. Instead, there was
a general consensus that several conditions of a substantive and procedural nature
must be satised prior to the exercise of a remedial right to external self-determina-
tion. While there were some slight variations in the formulation of these conditions,
there was general agreement on the need for a systematic and serious denial of inter-
nal self-determination for the group concerned, the existence of gross human rights
violations either as an integral part of this denial of internal self-determination or
supplementary to it, as well as the absence of any viable alternative remedy.116 Other
states were explicit in their rejection of such a right and cited the dearth of relevant
state practice to question its existence in international law.117 Given the widely diver-
gent views expressed, it is dicult to argue that such a right currently exists in inter-
national law or even that there are any prospects of it emerging in the near future. At
the same time, the number and identity of the states that supported a remedial right
to self-determination might suggest that one cannot exclude the possibility of such a
right developing under regional customary international law. 118
In terms of the application of the right in Kosovo, states adopted a variety of posi-
tions. Some regarded Resolution 1244 as embodying a form of internal self-determi-
nation for the Kosovo Albanians.119 This provides further support for the tentative
conclusions outlined in respect of the international practice during the previous
phase.120 Others went further and asserted a right to external self-determination for
the people of Kosovo.121 For most, this was due to the repression the Kosovo Alba-
nians experienced during the 1990s as well as the denial of any prospect of internal
self-determination within the FRY/Serbia.122 On closer examination, it seems that
there were several variations on this position. The rst was simply that the right to
See Written Statement of Latvia, April . It is also implicit in the Written State-
ment of the Maldives, April .
See Written Statement of Finland, April .
See Written Statement of Estonia, April . The Maldives and Slovenia also clas-
sied Kosovo as a sui generis case: see Written Statement of Slovenia April and
Written Statement of the Maldives, April .
See Written Statement of Finland, April , and Written Statement of the Nether-
lands, April .
See Written Statement of Estonia, April and Written Statement of the Maldives,
April .
See Written Statements of Argentina, Cyprus, Iran, Serbia, Romania, Russia (April
), and Written Statement of Bolivia, July and Written Statement of Spain,
July .
See Written Statement of France, April .
See Written Statement of Romania, April , and Written Statement of Russia,
April .
In respect of the latter, see, e.g. Written Statement of Austria, April .
See note above, para. .
Ibid. paras. -.
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 205
that general international law contained no applicable prohibition134 and that as the
authors of the Declaration were not acting as a Provisional Institution of Self-Gov-
ernment they were not bound by Resolution 1244.135 Given the manner in which the
Court interpreted the question, it took the view that any examination of whether
Kosovo had a right to declare independence by virtue of the self-determination prin-
ciple was beyond its scope. Instead, the Court simply noted that radically dierent
views had been expressed during the course of the proceedings on the scope of ex-
ternal self-determination and remedial secession.136 The Courts reasoning on this
and other issues is problematic.137 On this point, it may be criticised for its failure to
respond to the argument that the Declaration violated international law because it
was contrary to the right of self-determination of the population of Serbia taken as
a whole.138 At the very least, this required a more in-depth analysis of the safeguard
clause in General Assembly Resolution 2625 (XXV) than appears in the Advisory
Opinion, particularly when one bears in mind that at the time of its drafting the pro-
vision was formulated in the specic context of the Implementation of the principle
[of self-determination] by a state with respect to peoples within its jurisdiction.139
The clear implication from this and subsequent state practice140 is that groups within
states should exercise self-determination with due respect for the principle of ter-
ritorial integrity unless one takes the position that there is a remedial right to self-
determination in international law. It follows that the issue of whether the people of
Kosovo had a remedial right to self-determination was not beyond the scope of the
General Assemblys question but was quite possibly central to it.
In contrast to the Courts approach, there was some discussion of the right to
self-determination in the Separate Opinions of Judges Canado Trinidade and Yusuf
and in the Dissenting Opinion of Judge Koroma. For Judge Koroma, the principle of
territorial integrity always took priority over the right to self-determination which
Ibid. paras. -.
Ibid. paras. -.
Ibid. paras. -.
See, e.g. the criticism of the Court for its adjustment of the question (Judge Koroma,
Dissenting Opinion, Kosovo Opinion, para. , and Vice-President Tomka, Declaration,
ibid. para. ) and for its failure to address the question of self-determination (Judge
Simma, Declaration, ibid. para. , and Judge Sepulveda-Amor, Separate Opinion, ibid.
para. ).
See Written Statement of Cyprus, April .
See Report of the Special Committee on Principles of International Law Concerning
Friendly Relations and Co-operation among States: GAOR, Session, Supplement No.
(A/), (emphasis added).
See, e.g. the UN Declaration on the Rights of Indigenous Peoples, Article which
provides that Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any action which would dismember or
impair, totally or in part, the territorial integrity of sovereign and independent States
(emphasis added).
206 III. Kosovo and Self-Determination and Minority Rights
Reviewing the state practice on Kosovo, one is struck by the references to the need
to balance state sovereignty and territorial integrity with other interests such as self-
determination, human security and the general interests of humanity.149 Reference
was made, for example, to the need to attach equal weight to Kosovos claim to
self-determination and Serbias claim to maintain its territorial integrity.150 Indeed,
one state went so far as to assert that in recent decades, the right to self-determina-
tion as a human right has been given precedence over the principle of territorial
integrity.151 These comments suggest that the traditional, rather absolute adherence
to the principles of state sovereignty and territorial integrity may need to be revisited
in the light of other international values.152 Arguably in these and similar comments
one can nd the seeds of a new normative approach to external self-determination.
At the level of general principle, one can argue that a balance needs to be struck
between claims to self-determination and claims to preserving territorial integrity.
On the basis of general state practice and state practice during all three phases of the
international communitys engagement in Kosovo, it is clear that in most instances
that balance will be struck in favour of territorial integrity. Hence, the starting point
in any reconciliation of the two sets of claims is that prima facie priority will be
given to preserving territorial integrity. Clearly, there are sound policy arguments
underpinning this position notably that it helps prevent fragmentation and instabil-
ity within the international community. However, it can be argued that the principle
of territorial integrity should not automatically and in all cases trump self-determi-
nation claims. It is submitted that where certain substantive and procedural criteria
are met, self-determination claims should take priority over the territorial integrity
principle. At this rather general level of abstraction, Kosovo could be regarded as
a precedent to the extent that it contributes to the development of a new norm of
universal application.
In the practical application of this general principle, one can appreciate the sui
generis nature of Kosovo. Arguably, there were several factors of a substantive and
procedural nature in the Kosovo situation that weakened the traditional adherence
to the territorial integrity principle at least among certain sections of the interna-
tional community. The treatment of the Kosovo Albanians during the 1990s was
clearly the most important of these substantive factors.153 Within the present norma-
tive framework, it should be noted that this treatment is not seen as activating any
automatic remedial right to external self-determination.154 Instead, it is seen as one
factor, albeit an important one, in weakening the international communitys com-
mitment to the territorial integrity principle. In practical terms, this precludes any
unilateral right of secession. From a policy perspective, this should operate as a pow-
erful incentive for states to comply with their human rights obligations,155 avoid the
fragmentation of states and the associated risks to international peace and stability,
and open up the potential for a negotiated settlement. Arguably, the latter was also
an important factor in the Kosovo situation. Once the conict in Kosovo reached
the point of threatening international peace and security in the late 1990s there was
a consensus that the international community needed to be involved in any negotia-
tions on its status.156 Admittedly, in the absence of Chapter VII actions, states may
be hesitant about international involvement in internal disputes if it is seen as the
rst step in a slippery slope to sanctioning the break up of their territory. However,
there are several features to the Kosovo case that may go some way to addressing
their concerns. First, there was universal support for a negotiated settlement and
attempts by the Kosovo authorities to resolve the matter unilaterally have not been
endorsed by the overwhelming majority of states. Second, even among states that
have recognized Kosovo, there is some suggestion that recognition was due partly to
the failure of Serbia to engage in good faith negotiations.157
Consequently, in this third phase, it is possible to identify a tentative framework
for the future development of the right to external self-determination. At the level of
general principle, Kosovo may demonstrate that while the international community
in most instances will adhere to the territorial integrity principle it will not do so in
all cases and there may be exceptional or sui generis circumstances where the prin-
ciple must give way to that of self-determination. In this respect, one can argue that
The fact that the international community had to establish an interim administration
for the territory serves to underline the severity of the treatment and its ongoing eects.
On the signicance of Kosovo in terms of a right to remedial self-determination, see
further, Weller, note above, -, and Friedrich, note above, -. Unlike the
approaches adopted by both Weller and Friedrich, the normative framework outlined in
the present chapter emphasizes that there is no automaticity in the sense that repres-
sion does not give rise automatically to a unilateral right to external self-determination
or secession.
It would mean that the territorial integrity of a state would be preserved where, e.g. a
new government genuinely attempts to redress past abuses.
See, e.g. Statement by the Contact Group, London, January , paras. -, UN Doc.
S// ( January ).
See, e.g. the UKs position that Serbias actions in adopting a new Constitution that
unilaterally asserted control over Kosovo made successful negotiations impossible as it
eectively tied the hands of the Serbian negotiators to the point where they could not
even agree on the EUs status neutral proposal. According to the UK, this represented
the last chance for a negotiated settlement and it was one that was rejected by Serbia,
UN Doc. A//PV. ( October ).
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 209
Kosovo may establish a precedent although not necessarily a negative one for con-
icts elsewhere. This is because where territorial integrity gives way to self-determi-
nation, a set of substantive and procedural requirements must be met. There is no
exhaustive list of such requirements and in this respect the unique combination of
factors in Kosovo characterises it as a sui generis case. However, at a basic minimum,
the substantive criteria would include a severe denial of internal self-determination
as well as grave human rights violations. Once this is established, procedural re-
quirements would include negotiations between the parties conducted in good faith
within a reasonable timescale and quite probably with the active involvement of the
international community.158
d The Significance of International Practice during this Third Phase for the
Development of Minority Protection
In terms of minority protection, international practice during this nal phase rein-
forces the tendency to bring minority guarantees more into line with current inter-
national standards especially European standards. In addition to greater exibility
in implementation, minority guarantees are formulated purely within an individual
rights framework.159 Equally important is the signicance of these guarantees at
the global level. Reproducing the provisions on minority protection outlined in the
Ahtisaari Plan, the Declaration of Independence, in a fairly unusual move, arms
irrevocably that Kosovo is legally bound to comply with these provisions and that
all states are entitled to rely upon this Declaration.160 These internationally bind-
ing commitments have gone some way to addressing international concerns about
minority protection and to facilitating Kosovos entry into the international commu-
nity. This is clear from the recognition statements to date, many of which stressed
the importance of the minority guarantees.161 Indeed, some went so far as to suggest
The existence of these procedural requirements also distinguish the approach outlined
in the present chapter from the concept of remedial self-determination outlined, e.g. by
Weller and Friedrich, note above.
See, e.g. Article of the Ahtisaari Plan concerning the Rights of Communities and
Their Members which stipulates that: Inhabitants belonging to the same national or
ethnic, linguistic or religious group traditionally present on the territory of Kosovo
(hereinafter referred to as Communities) shall have specic rights (emphasis added).
For a discussion of these provisions, see, Rudiger Wolfrum, Kosovo: Some Thoughts
on its Future Status, in Multiculturalism and International Law, eds. Sienho Yee and
Jacques-Yvan Morin (Leiden, Boston: Martinus Nijho Publishers, ), -. Ar-
ticle of the Ahtisaari Plan was reproduced in Chapter III of the Kosovo Constitution.
See operative para. .
Norway noted in its recognition statement that the minority guarantees were binding
under international law: Press Release, March , available from www.kosovoth-
anksyou.com (last accessed October ). On the importance of the minority guar-
antees in the recognition statements, see further, e.g. Press Release Estonia recognizes
Republic of Kosovo, February , available from www.vm.ee/?q=en/node/ (last
accessed October ), Statement by the President of the Swiss Confederation,
210 III. Kosovo and Self-Determination and Minority Rights
5 Conclusion
Attempts to classify Kosovo either as a dangerous precedent or as a sui generis situ-
ation do not sit easily with the relevant state practice. Arguably, they are a reection
of the international communitys current preoccupation with Kosovos Declaration
of independence and its implications for the principle of territorial integrity. They
do not reect the complex and evolving nature of the international communitys
engagement with the territory and its signicance not only for the right to external
self-determination but also for the right to internal self-determination and minority
protection. The full signicance of this state practice only becomes apparent when
analysed during each of the distinct though inter-related phases in the international
response to Kosovo and within the wider framework of global developments con-
cerning self-determination and minority protection.
Kosovo has several important implications for the right to internal self-determi-
nation. At the very least, it suggests that limits can be imposed on this right in the
interests of peace and security. This much is evident from the drafting of Security
Council Resolution 1244. By establishing an international administration in Kosovo
under Chapter VII of the UN Charter, the Resolution limited the right of the entire
population of the FRY to determine their own internal structures of government. Far
more tentative, though equally signicant, is the support for some form of internal
self-determination for the people of Kosovo. In this respect, it echoes developments
at the global level concerning a right to internal self-determination for indigenous
peoples and the limited recognition of a similar right for other groups within states.
While the emergence of a legal right to internal self-determination for indigenous
peoples is at a far more advanced stage than for other groups, international practice
during the second and third phases of the international response to Kosovo may
contribute to the evolution of such a right for these other groups in the future.
There seems to be a common justicatory basis to these developments with rec-
ognition of some form of internal self-determination for groups within states being
based on the belief that it is necessary in order to protect the identity and/or funda-
mental rights and freedoms of these groups. While this is reminiscent of the con-
cept of a remedial right to self-determination, it departs from it in one fundamen-
tal respect. It does not envisage any automatic right to external self-determination.
Instead, it occupies a middle ground between absolute adherence to the territorial
integrity principle and the automatic break up of the state. As such, it leaves the way
open for a state to mend its ways and address the legitimate concerns of all sections
of its population while avoiding the risks of fragmentation and instability associated
with secession. Admittedly, Kosovos Declaration of Independence may be seen to
undermine its signicance in this respect. However, the fact that the vast majority of
states have not recognized Kosovos independence tends to reinforce the point that
recognition of a limited right to internal self-determination does not automatically
entail recognition of a more extensive right to external self-determination.
In terms of the right to external self-determination, it is far more dicult to draw
any denitive conclusions about Kosovos signicance. So far, there have been at
least four dierent approaches to Kosovos Declaration of Independence. Most in
their own way tend to reinforce the traditional approach to external self-determina-
tion. The rst regards the Declaration as a violation of international law thereby pre-
cluding any recognition of a legal right to external self-determination for the people
of Kosovo. The second stresses the need for continued negotiations and a consensual
basis to any nal settlement in line with the traditional approach to external self-
determination whereby the entire population of a state can agree, for example, to the
break up of that state. The third stresses the sui generis nature of Kosovo suggesting
212 III. Kosovo and Self-Determination and Minority Rights
ELIZABETH CHADWICK
1 Introduction
The Unilateral Declaration of Independence (UDI),1 issued on 17 February 2008 by
the Albanian authorities in the former Serb province of Kosovo,2 continues to gen-
erate great interest, not least because it represents a new generation of exercises by
peoples in self-determination.3 Kosovos unilateral move to secede territorially from
Serbia is quite remarkable because, in order to avoid wider system chaos, the major-
ity of international political and legal eorts in the post-1945 era have been devoted
to conning lawful exercises in self-determination to peoples inhabiting former
colonies or other non-self-governing territories.4 As Kosovo was a long-standing
province of southern Serbia, it did not qualify, even though the 1974 Yugoslav Con-
stitution granted the province the status of a highly-autonomous federal entity, with
representation in the federal institutions.5 When Kosovos 2008 UDI is viewed along-
side the continuing protest it has provoked from Serbia,6 it becomes clear that the
UDI by no means constituted a friendly exercise in secessionist self-determination.
On the other hand, Serbias self-restraint since that time, in not resorting to armed
force in response to this particular UDI, implies that Kosovos secession has so far,
at least - been accomplished peacefully.7
Kosovos recent bid for independence may constitute a highly controversial exer-
cise in self-determination, but the fact that its majority population decided to take
this drastic step does not make the UDI exercise historically unusual. Instead, the
action merely underscores another fact that of a recurring pattern in human be-
haviour which does not change. Whether or not the UDI ultimately attracts the
necessary degree of international legitimacy for Kosovo to attain statehood, the
secession provides support for a somewhat dierent proposition: that questions of
revolution, self-determination, and independence cannot be treated as having sim-
ple right or wrong answers, as to do so would only conate solutions with causes.
Inasmuch as self-determination holds a unique position in human aairs, and ap-
peals to its rhetoric convey a sense of aspiration, a more subtle calculus in analysis
is called for one which acknowledges the burdens and benets of dierentiation
as opposed to integration. Accordingly, should domestic mechanisms for managing
societal change not exist, entire regions can be destabilised by self-determination.
Such destabilisation occurs largely because appeals to self-determination facili-
tate the generation of gyroscopic-style forces, which are capable of resisting wid-
er, more centralising power. The term self-determination thus implies a desire to
promote the autonomous self outside of the control of others. Moreover, exercises
in self-determination by a people are as varied as the groups asserting the right,
and often, the term is used merely to communicate the desire of a people to rec-
tify or re-adjust certain social relationships between themselves and broader group-
ings. Accordingly, when the Serb nationalist leader Slobodan Miloevi engineered
amendments to Serbias Constitution in 1989 to revoke Kosovos local autonomy and
the minority rights of the provinces Albanian majority,8 the latter countered with a
quest for self-rule which ultimately would involve the formation of a shadow Koso-
vo government, an armed conict between Serb forces and the Kosovo Liberation
Army, forceful external intervention by NATO,9 and the temporary takeover of the
province pursuant to action adopted by the Security Council under Chapter VII of
the UN Charter,10 and implemented by organisations as varied as the OSCE, the EC,
and numerous NGOs.
What also has made the Kosovo UDI so extraordinary an event is its context, in
that it occurred within a political environment created by the Constitutional Frame-
work envisioned in UN Security Council Resolution 1244 (1999). Coming after the
international use of force just highlighted, Resolution 1244 temporarily suspended
the exercise of Serbian sovereignty over Kosovo, and replaced it with an interim
international presence, pending negotiations towards a nal settlement on substan-
tial self-government for Kosovo.11 The temporary nature of this international pres-
ence, to manage and protect Kosovo under the Constitutional Framework, no doubt
prompted the 2008 UDI,12 which simultaneously threatened to destabilise the entire
Balkan region all over again after the dissolution wars of the 1990s in the former ter-
ritory of Yugoslavia.13 To help resolve the issue, the UN General Assembly at Serbias
request sought an advisory opinion from the International Court of Justice (ICJ) as
to the legality of the UDI in international law.14 The ICJ handed down its opinion
on 22 July 2010 as to the Accordance with International Law of the Unilateral Dec-
laration of Independence in Respect of Kosovo,15 and found that the UDI was not
prohibited by international law.
The conclusion was based on a majority of the Court nding that no general pro-
hibition exists in positive international law against declarations of independence,
nor did the majority nd any such prohibition in the international arrangements
provided specically for Kosovo. These conclusions were narrowly conned, how-
ever, and expressly side-stepped the twin parallel issues of entitlements to self-deter-
mination and rights of revolution.16 The ICJ majority thus implicitly acknowledged
the limits of law when ordering such human events as self-determination, particu-
For the period -, see Patrick Brogan, World Conicts (London: Bloomsbury,
), Appendices, -.
See, e.g. Western State Terrorism, ed. Alexander George (Cambridge: Polity Press, );
Quincy Wright, Subversive Intervention, American Journal of International Law
(): .
See, e.g. UN Secretary General, Presenting Recommendations for Global Counter-Ter-
rorism Strategy to the General Assembly, UN Doc. SG/SM/, GA/, ( May
). Contrast Jude McCulloch and Sharon Pickering, Suppressing the Financing of
Terrorism: Proliferating State Crime, Eroding Censure and Extending Neo-Colonial-
ism, British Journal of Criminology (): .
See Background, etc., Draft Comprehensive Convention on International Terrorism,
accessed at Inventory of International Nonproliferation Organizations and Regimes,
Center for Nonproliferation Studies). Last updated May . http://cns.miis.edu/
inventory/pdfs/intlterr.pdf. Mahmoud Hmoud, Negotiating the Draft Comprehensive
Convention on International Terrorism: Major Bones of Contention, Journal of Inter-
national Criminal Justice (): .
The reference was permitted by UN Charter Articles and (). The UN Security
Council remains actively seized of the matter, making inapplicable both Charter Article
, and GA Resolution (V) of November . See Certain Expenses of the UN
() ICJ ( July).
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 217
As a result, overt shows of state support for one or other (r)evolutionary model
have become much more rare today, which in turn has produced a post-Cold War
(and post-9/11) UN seemingly less interested in preventing international disputes in
the rst place, than in resolving them peacefully or otherwise once they have
occurred. For example, when NATO launched air strikes against Serbia to force it
to halt its armed oensive against Kosovo, the UN General Secretary noted that,
however tragic it was when diplomacy failed, there were times when, the use of
force may be legitimate in the pursuit of peace.22 As for the recent ICJ Advisory
Opinion on Kosovos 2008 bid for independence, there is little doubt that the manner
in which the Court framed and determined the issues it deemed capable of adjudica-
tion will prove to be of great interest and controversy for some time to come, but it
must also be hoped that the ICJs opinion will prove to be persuasive far beyond the
more sterile analyses and criticisms which no doubt will greet it, such that the opin-
ion will ultimately assist in developing more eective international controls over
state behaviour in many contexts.
Inasmuch as this discussion is intended to contribute a few thoughts regarding
the underlying dynamics of exercises by peoples for their self-determination, and to
consider how those exercises are regarded today, an inclusive approach is adopted
to the relevance of self-determination in the case of Kosovo. The specic objective
is to examine and situate the peacefulness of the latters UDI within the wider fac-
tors which give rise to demands for system change. Specically, three extra-legal
dimensions of international life are utilised to illustrate the ways in which self-deter-
mination plays a role akin to a canary-in-the-mine for detecting certain emerging
themes in international relations. Secondly, the traditional pre-conditions to entitle-
ments of self-determination are outlined, in order to situate the ICJs recent opinion
on Kosovos UDI within the self-determination canon. Finally, the legal distinctions
between war and peace are discussed, in order to illustrate how friendly or peace-
ful exercises in self-determination can so easily degenerate into a no-holds-barred
armed conict which is the most dangerous scenario for all involved.
The United Nations Today (New York: United Nations Department of Public Education,
), . Accessed September . www.unic.org.ar/mat-didactico/UN_TODAY_
BOOK.pdf.
218 III. Kosovo and Self-Determination and Minority Rights
arching Charter purpose to base future friendly relations on, respect for the prin-
ciples of equal rights and self-determination of peoples.23 This conditioning eect
makes clear that inter-state friendly relations above and beyond what is required
for inter-state peace are unlikely to arise merely from non-interference. Instead, the
persistent appearance of international tensions often reects variations in approach
to domestic state governance, as is now discussed in the context of the politics of
self-determination.
cal contexts are more likely to throw up obstructions, particularly once the crucial
importance of legitimate rights entitlements is considered. This is so for many rea-
sons. In terms of the political dimension of self-determination, the maintenance of
international peace is intended above all to stabilise inter-state co-existence, one key
to which is the principle of non-interference. Specically, non-interference recog-
nises the hierarchical nature of internal state arrangements for determining such
local concerns as the distribution of rights entitlements, e.g., to equality before the
law, property ownership, the su rage, and so on. On the other hand, the principle of
non-interference is an obligation between states alone, which leaves unregulated by
the UN Charter or international law a more fundamental and long-standing prin-
ciple in human society: that of an inherent, natural right of the governed to revolt
against unjust government.29
Moreover, domestic power struggles and revolutionary politics have long been
the engines of radical change within states, but once a new power conguration be-
comes eective, a subject population will be expected to acquiesce and obey, wheth-
er or not their allegiance is also transferred.30 In that forceful seizures of control and
authority alone do not generate social harmony, a governing regime needs also to
remain mindful of the advantages of projecting both moral and persuasive authority
in order to be deemed just, particularly as any underlying basis for adverse and dis-
criminatory status dierentiations within multi-cultural states can as easily spark
resistance and/or violence as not.31 This point helps to introduce a second dimension
of international life: the economic. A prime catalyst for internal division in a society
is one or other form of economic inequality, as can be seen in states throughout the
world. In the post-1945 era alone, the search for economic redress has ranged from
an early attraction to Communism in the Third World, through to the global threat
of extremist violence today. Even more worrying are the marginalising eects of
poverty in generating inter-ethnic resentment and social alienation which provide a
recruitment ground for those who are more interested in stirring community strife
than not.32
It is also of note that the bi-polar rivalry of the Cold War did in fact ensure a
measure of stability in certain liberationist struggles, which helped to transform
E.g. Locke considered the right of revolution to be inherent in the social contract. John
Locke, Two Treatises of Government (rst published London: Awnsham Churchill,
), while for Emmerich de Vattels The Law of Nations (), just revolution inu-
enced just war theory.
Analogously, occupation law requires obedience, not allegiance. See Geneva Conven-
tion IV of , relative to the protection of civilian persons in time of war, and Hague
Convention IV of , respecting the laws and customs of war on land, Annexed Regu-
lations, Section III.
Martin Griths, Self-Determination, International Society and World Order, Mac-
quarie Law Journal (): , at text accompanying note .
Mark Dueld, Global Civil War: The Non-Insured, International Containment and
Post-Interventionary Society, Journal of Refugee Studies (): , at section enti-
tled, The Strategic Nature of Development.
220 III. Kosovo and Self-Determination and Minority Rights
which is a stance not universally accepted throughout the West,40 while the Russian
Federation has long stood rm alongside its ally Serbia, putting in doubt any even-
tual state seat for Kosovo at the UN.41 For this reason, the Kosovo UDI confronted
the international community with a spectacular choice of action in 2008.
As a matter of choice, therefore, it appears that attention in the UN was focused
instead on the UDI itself, which helped to transform the referral of the General As-
semblys legal question to the ICJ into the time-buying distraction it really was.42
The decision to request legal advice from the ICJ as a preliminary matter makes
clear not only that many areas of international law remain uncertain, but further, it
illustrates the enduring usefulness of an analytic approach devised by Trainin in the
aftermath of World War 2, as the Cold War began. After rst remarking that ques-
tions on law can be answered only after the existence of that law is rst conrmed,
Trainin noted that attention should [then] be directed to a clarication of what
that law represents, what constitutes its economic base, and the interests and wishes
of what class or group within that class are reected in that law.43 In terms of the
question referred to the ICJ the accordance with international law of Kosovos UDI
this structured approach would require rst a consideration of what internation-
al law there is on declarations of independence in general, after which the specic
context of Kosovos interim international administration would necessitate inquiry.
Assuming that it had been possible to locate any international law applicable to
the facts and context of Kosovos UDI, the Court would then have needed to proceed
to a clarication of what that law represented, what constituted its economic base,
and what class or group interests were reected in it. Remarkably, this is, gener-
ally speaking, precisely what the ICJ proceeded to do when it rendered its Advisory
Opinion on 22 July 2010. The Court rst decided unanimously that it did in fact have
jurisdiction over a legal question.44 In terms of the Courts discretion as to whether it
should provide an opinion, however, the panel was divided, deciding by nine votes to
ve that it would be more preferable than not to comply with the request.45 As for the
The UN General Assembly vote for referral to the ICJ was states in favour, against
(Albania, Marshall Islands, Federated States of Micronesia, Nauru, Palau, and U.S.),
and abstentions. See, Backing Request by Serbia, GA Seeks ICJ Ruling, UN Doc.
GA/ ( October ).
Regions and territories: Kosovo. Last updated July . news.bbc.co.uk. UN mem-
bership requires recommendation by the Security Council, and a two-thirds majority of
the General Assembly. UN Charter Articles (), (), and ().
See, e.g. William Michael Reisman, The Cult of Custom in the Late Twentieth Cen-
tury, California Western International Law Journal (): .
I. P. Trainin, Questions of Guerrilla Warfare in the Law of War, American Journal of
International Law (): .
Contrast the contentious proceedings in Case Concerning Legality of Use of Force (Ser-
bia and Montenegro v. United Kingdom), Preliminary Objections () ICJ ( Decem-
ber): (no jurisdiction to entertain the application led April ).
Judges Buergenthal (US), Greenwood (UK), and Abraham (Fr.) voted in favour, while
Judge Skotnikov (Russian Federation), along with Vice-President Tomka (Slovakia), and
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 223
merits of the central legal issues, the Court then proceeded to adopt a bifurcated and
highly-systematic approach: rst, the compatibility of the UDI with general interna-
tional law was considered, after which the more positive legal relevance of Security
Council Resolution 1244 was examined. The Court held by a majority of ten votes to
four that it is of the opinion that the declaration of independence of Kosovo adopted
on 17 February 2008 did not violate international law.46
The ICJ found no general prohibition in positive international law on declarations
of independence, and remarked instead that there had been numerous occasions in
earlier centuries when declarations of independence were issued, while during the
second half of the twentieth century, the right of self-determination had prompted
the emergence of many new states.47 In noting that the scope of the principle of
territorial integrity is conned to the sphere of relations between States,48 the ma-
jority found no evidence of consistent state practice or opinio juris for or against
declarations of independence in general, and it noted that any condemnations by the
UN Security Council in the past of declarations of independence had not stemmed
from their unilateral character, but instead, from the violations of other interna-
tional norms which preceded them. The Court concluded that the declaration of
independence of 17 February 2008 did not violate general international law.49 As for
the second stage of its analysis, the ICJ drew a distinction between general interna-
tional law, and Security Council resolutions, noting that the latter are voted on, and
can bind all member states. The Court noted that Security Council Resolution 1244
and the Constitutional Framework for Kosovo were intended as temporary and sta-
bilising humanitarian measures to facilitate the reconstruction of basic public order
pending the development of meaningful self-government in Kosovo.
On the other hand, Resolution 1244 did not provide a timetable for termination of
the international administration. Moreover, the Court found no general or specic
prohibition in Resolution 1244 against a UDI, and it noted that the Secretary Gen-
erals Special Representative had remained silent after notication of what the Alba-
nian authorities had done a signicant point, as the Special Representative was un-
der an international duty to prevent ultra vires acts of the Provisional Institutions
of Self-Government designed to take eect within the legal order for the supervision
of which he was responsible.50 This conclusion then allowed the Court to nd that
the UDI had not been issued by the Provisional Institutions of Self-Government,
that the UDI did not take eect within the Provisional Institutional legal order, and
therefore that the UDI did not violate the Constitutional Framework. Accordingly,
the ICJ concluded, the authors of the UDI were not bound by the framework of pow-
Judges Koroma (Sierra Leone), Bennouna (Morocco), and Keith (New Zealand), dissent-
ed.
Vice-President Tomka, and Judges Koroma, Bennouna, and Skotnikov dissented, while
Judge Keith joined the majority.
Kosovo Opinion, note above, para. .
Ibid. para. .
Ibid. para. .
Ibid. para. .
224 III. Kosovo and Self-Determination and Minority Rights
ers and responsibilities established to govern the conduct of the Provisional Institu-
tions of Self-Government.51
In view of the long-standing links between Russia and Serbia over many centuries,
it was hardly surprising that Judge Skotnikov of the Russian Federation was the only
dissenting judge on the panel to originate from a permanent member state of the
Security Council,52 and his dissent provided a avour of the opposition. In his dis-
senting opinion, Judge Skotnikov wrote that he felt it was inappropriate for the Court
to render its legal opinion on political action adopted by the Security Council,53 as to
do so over-stepped the proper connes of the UN institutional framework. Whilst
considering Kosovos UDI to be unprecedented,54 he argued that the political pro-
cess in Kosovo had yet to run its course and receive endorsement by the Security
Council. He found there was sucient international law to prohibit the action by the
Kosovo Albanian leadership, in the form of Resolution 1244, as otherwise the Secu-
rity Council would have created a giant loophole.55 He concluded that the majoritys
interpretation of general international law was misleading and inammatory,56
particularly as, declarations of independence may become relevant in terms of gen-
eral international law only when considered together with an underlying claim for
statehood and independence.57
What is made crystal clear by the majority and dissenting opinions is that the
narrow legal approach adopted by the Court would likely be viewed as both safe,
and unsatisfactory. On the other hand, nding no prohibition in international law of
Kosovos bid for independence does not mean necessarily that a positive entitlement
exists, any more than it means that rights of revolution or lawful self-determining
parameters are discoverable for use by non-colonial, remedial, and/or territorial-
ly-dened peoples.58 There are of course many reasons why a positive entitlement
to self-determination beyond the colonial context has yet to be sourced concretely
in international law, particularly if Trainins structured approach is followed to its
logical conclusion, in the sense of clarifying the law, what that law represents, what
constitutes its economic base, and the interests and wishes of the relevant class or
group. In other words, while a principle of self-determination is conrmed in the
UN Charter,59 its economic basis, and the special interests reected in it are indeter-
Ibid. para. .
Judge Hanqin (China) did not participate.
Kosovo Opinion, note above; Judge Skotnikov, Dissenting Opinion, ibid. para. .
Ibid. para. .
Ibid. para. .
Ibid. para. .
Emphasis added. Ibid. para. , regarding which latter the Court had refused to com-
ment.
Contrast Jurgen Friedrich, UNMIK in Kosovo: Struggling with Uncertainty, Max
Planck Yearbook of United Nations Law (): -.
Articles () and , UN Charter, respectively. See also Charter, Articles and ; the
Atlantic Charter of August , reprinted in League of Nations Treaty Series :
, and in American Journal of International Law (Supplement No. ): .
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 225
minate inasmuch as it is possible to argue, as it was argued early in the UN era, that
the principle merely re-arms the sovereign equality of states.60
Nonetheless, it also remains the case that events cause the law to evolve, and once
the anti-colonial agenda took hold, the UN could only retard secessionist sentiments
by situating self-determination squarely within the colonial context, regarding
which General Assembly Resolution 1514 of 1960,61 at least, proved central in helping
to reduce wider system disruption. Be that as it may, the substantive content which
has slowly been poured into the principle of self-determination until today reects
far broader interests than those of states, and potentially veries the greater strength
of human over states rights, while the principle of self-determination remains useful
for indicating emerging themes in international relations at many levels. Trainins
general structure for questions about international law is thus helpful to illuminate
a further point: it is rarely the case that a people promotes, as an original motiva-
tion, the alteration of their states boundaries through complete territorial secession,
due to the many known diculties involved in such a drastic act.62 Instead, what is
sought more often than not is more a moral victory, in the sense of prioritising cer-
tain non-legal rationalities and values, e.g., those found in culture, tradition, and/or
rights claims to control historic lands.63
In the case of Kosovo, for example, the status equality the province had sought
alongside the other Yugoslav republics was denied even under the Yugoslav Con-
stitution of 1974. However, it was only once Serbia had revoked its minority rights
and autonomy in 1989, dissolved its assembly in 1990, and sent armed police units
in to suppress the resulting agitation that Kosovos shadow government arose and
tasked its Liberation Army to defend the provinces majority inhabitants in a violent
armed struggle with Serbia neither group could have wanted, particularly once war
crimes began to proliferate on all sides, as well as gross violations of human rights.
This sequence of political events again makes it somewhat curious that the General
Assemblys central point of enquiry was the compatibility of the UDI with interna-
tional law. Such a simple question for such an egregious local situation thus begs the
question of what international human rights actually mean, as well as the question
whether rightful boundaries exist in the UN era between non-interference and gross
rights infringements. In turn, it may simply have been the case that certain states
hoped to entice the ICJ to act merely as a judicial referee between competing models
of state governance.
It is equally arguable that the measure of inuence wielded by those General As-
sembly states more inclined to support Kosovo was sucient to signal to those states
opposed to the UDI that, if not entirely out-leveraged in political terms, they were
suciently counter-balanced, to deter the latter from forceful intervention, pending
the Courts decision.64 In that the maintenance of international peace is, after all, a
primary function of the Security Council,65 it could equally have been the case that
stalemate in that organ made General Assemblys powers under Charter Articles 14
and 96(1) viable as a means to circumvent Article 12,66 and thereby produce a resolu-
tion of some description. It is thus fortunate that the ICJ did not waste its collective
time in searching for international consensus regarding self-determination, per se,
particularly as the UDI was neither accomplished, nor referred to the ICJ, under the
express self-determination banner. In turn, the Courts refusal to even discuss that
issue serves as an indirect reminder that, in certain circumstances, the more time-
less notion of a right to be free of oppression cannot be conned to articial legal
parameters, as is now discussed.
See Backing Request, note above, (delegates backed the measure out of respect for
international law).
Article (), UN Charter.
And, provide a backdoor route into GA Res. A (V), UN Doc. A/RES/ ( Novem-
ber ).
E.g. the principle of self-determination was proclaimed in the French Revolution, and
was developed over the nineteenth and twentieth centuries. See, e.g. Vladimir Ilyich
Lenin, The Right of Nations to Self-Determination, reprinted in Lenins Collected
Works (Moscow: Progress Publishers, ) volume , -. Accessed September
. www.marxists.org/archive/lenin/works//self-det/index.htm. Philip Marshall
Brown, Self-Determination in Central Europe, American Journal of International Law
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 227
Graham Pascoe and Peter Pepper, Getting It Right: the Real History of the Falklands/
Malvinas: A Reply to the Argentine Seminar of December . Accessed Septem-
ber . www.falklandshistory.org/gettingitright.pdf.
As with early twentieth century Communism. See, e.g. Lenin, note above.
Detter de Lupis, note above, -; Shaw, note above, -. See also GA Res.
(XX), UN Doc. A/RES/ ( December ), GA Res. (XXV), UN Doc.
A/RES/ ( October ), and GA Res. (XXVIII), UN Doc. A/RES/ (
December ).
E.g. the European Convention on Human Rights , Protocol , and the Treaty of
Rome (consolidated version), Articles - and .
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 229
sue was provided in the context of non-intervention, when in 1977 international hu-
manitarian laws of armed conict were adapted to apply in full to a new and classic
trilogy of liberation struggles those against colonialism, foreign occupation and/or
racist regimes.95 This extension constituted a practical recognition of the scale and
intensity of liberationist armed struggles, which helped those struggles to trump
strong counter-arguments that to recognise them would only aord unwarranted
recognition to rebels and terrorists.96
The adaptation of humanitarian laws to the realities of modern armed conicts
had a further negative consequence, in that the predictability of future liberationist
outbreaks became less certain. In other words, once the international focus shifted
pragmatically from prevention to managing a new generation of liberation causes,
the competing frameworks of abstract theory and ideology which had already made
self-determination less safe for governments permitted post- or non-colonial peo-
ples increasingly to be the visible face of armed conicts for self-determination. This
shift in focus made it doubly imperative for states to negotiate on terms of mutuality
with their peoples, and preferably in a relationship of trust, condence, and mutual
respect,97 but the case of Kosovo points in contrast to the enduring importance of
building international support, and underlines perhaps the most fundamental point
of all: that law, in certain circumstances, can be as unacceptable to states as it is
to criminal individuals. Moreover, resort to laws alone cannot ever make self-de-
termination safe for governments, particularly as compliance obligations at many
levels are weakened by a patchwork of state self-regulation.98
This implies, in turn, that modern human rights regimes may have helped to
strengthen related principles of autonomy in relation to individuals and groups,
but that post-1945 rights entitlements exert countervailing pressures on individual
states. Once collective responses evaporate against threats to the territorial integrity
and political independence of certain member states, e.g., those which do not con-
duct themselves in compliance with the spirit and letter of the Charter and General
Assembly Resolution 2625, a further proposition matures: that a people holds rights
of self-defence against gross state oppression once that oppression rises to the level
of a constructive armed attack.99 For example, Friedrich, among others, argues that
Resolution 2625 provides strong support for the transformation of internal rights en-
titlements into external rights in such circumstances, and with specic reference to
Kosovo, he posits that this transformation process occurred once Serbia attempted
to ethnically-cleanse Kosovo of its majority Albanian population in 1998 1999,100
i.e. prior to international involvement by NATO, UNMIK, and others.
Accordingly, just as the principle of self-determination can never be made en-
tirely safe for governments, no putative law can ever provide the nal word to
condition or restrict the inherent right of a people to revolt against oppression and
unjust government. On the contrary, the indeterminate content of self-determina-
tion simply invites new challenges to arise against the existing order.101 Once the
geo-political opportunities of a post-9/11 anti-terrorist era bent on micro-managing
international nance (ostensibly to block the ow of funding to terrorists) are con-
sidered, what becomes increasingly clear is the constant need to generate new forms
of governance, and the resources to support them, which are often garnered most
easily in fragile societies. The two decades of a more uid, post-Cold War world
have already ensured a ready access to funds and weaponry by many new national
and international actors. What today is new is that emerging from within certain
insurrectionist groups is a willingness to diversify their warfare models to provide
forms of local welfare, such that the resulting competition for hearts and minds is
irrevocably altering, once again, the self-determination game, as is now discussed.
Non-violence is the only path which has peace as its logical conclusion. Non-violence is
both a means and an end. Amongst a people who have not eschewed violence and who
encourage the capacity for violence as a means of persuasion, there is never any real peace.
There is only war and waiting for war.102
The UN Charter was drafted to restrain, if not entirely to prevent, the use of aggres-
sive armed force between sovereign states.103 By 2004, a High-Level Panel was able
to report to the UN Secretary-General that, in relation to decisions to use military
force, we believe that the Charter of the United Nations, properly understood and
applied, is equal to the task.104 In turn, war still occurs, so Common Article 2 of the
Geneva Conventions of 1949 species in the pertinent part that the four 1949 Geneva
Conventions shall apply to all cases of declared war or of any other armed conict
which may arise between two or more of the High Contracting Parties, and to all
cases of partial or total occupation of state territory whether or not resisted. The
phrase, properly understood and applied, as employed by the High-Level Panel in
2004, thus reects both the fact of war, and the high degree of exibility retained
by states in the UN era when the time arrives to utilise military force, as when de-
fending themselves against an armed attack in accordance with the UN Charters
article 51.
Article 51 does not conne the right of self-defence to responses against state
armed attacks alone,105 even though prior to 9/11, there was certainly a doctrinal ten-
dency to do so.106 Specically, this tendency in legal doctrine has for some time helped
to facilitate the social construction of many post-1945 non-international armed
War in the Gulf, Greenpeace Campaign Report (London: Greenpeace, ). See also
Gregor Noll, The Miracle of Generative Violence? Rene Girard and the Use of Force in
International Law, Leiden Journal of International Law () (): .
Article (), UN Charter. See also GA Res. (XXIX), UN Doc. A/RES/ ( De-
cember ), Article .
Report of the Secretary Generals High-Level Panel on Th reats, Challenges and Change,
A More Secure World: Our Shared Responsibility, UN Doc. A// ( December
), .
The Chatham House Principles of International Law on the Use of Force in Self-De-
fence, International and Comparative Law Quarterly (): -.
See, e.g. Michael Bothe, Terrorism and the Legality of Pre-Emptive Force, European
Journal of International Law (): -.
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 235
conicts,107 which has made their regulation, politically and legally contentious,108
despite the fact that an armed conict is a core concept in international law. More-
over, the characterisation of an armed conict should never be a matter that is
conclusively and exclusively determined by the state concerned.109 Accordingly, the
post-9/11 euphemistic terminology used by certain states to characterise a war on
terror is not only misleading, but has also served to muddy the central distinction
between war and peace, particularly as regards internal conicts, which are the
most problematic to identify.110
Secondly, the automatic extension in 1977 of international humanitarian legal
provisions to some liberationist struggles may have simultaneously tightened the
scope for exibility in contexts of military necessity and proportionality,111 but there
is as yet nothing which extends to peoples an analogous right of self-defence or to
source a right to request assistance against state aggression: as noted above, aggres-
sion, strictly speaking, can only be perpetrated by states against states.112 Similarly,
state rights of self-defence may be used to justify the use of force against non-state
entities, but the obverse position is not generally accepted.113 Not only has such one-
sidedness in legal entitlement led many states to combine their military and law en-
forcement activities for use against terrorists, insurgents, violent extremists, etc.,114
but the melding of specialised (wartime) terminology within that of general peace-
time has also provided a foundation for disregarding the legal implications of rules
of international humanitarian law, as is now briey outlined.
armed conict is left undened in Geneva law,122 but the ICRC has made it clear that
the law of war applies from the rst acts of hostilities or un-resisted occupation.123
Such automatic applicability is exceedingly controversial, as to require a state threat-
ened with internal enemies to implement any level of international rules at the rst
acts of hostilities, etc., is to expect that state to acknowledge for international con-
sumption that it is faced with a situation beyond police control. Nonetheless, should
isolated incidents of domestic unrest increase in intensity and duration, Common
Article 3 to the four 1949 Conventions should be applied instantly, and as a mini-
mum. Common Article 3 provides that in a non-international armed conict, each
party must guarantee certain basic human rights on a non-discriminatory basis.
However, the principle of non-interference applies to civil war, and human rights
are left to states to manage, so the absence in Common Article 3 of any provision for
external scrutiny by neutral Protecting Powers means that the articles central hu-
manitarian purpose can be easily outed. With such deciencies in mind, Common
Articles 2 and 3 were supplemented in 1977 in Geneva Additional Protocols 1 and 2
additional to the 1949 Geneva Conventions.
i Protocol 1
In Protocol 1 Article 1(4), international armed conicts are extended to include
armed conicts in which peoples are ghting against colonial domination and alien
occupation and against racist regimes in the exercise of their right of self-determina-
tion, as enshrined in the UN Charter and in GA Resolution 2625. These categories
are illuminated in the Commentary to the 1977 Protocols in pertinent part as fol-
lows:
The expression colonial domination certainly covers the most frequently occurring case
in recent years The expression alien occupation covers cases of partial or total occu-
pation of a territory which has not yet been fully formed as a state. Finally, the expression
racist regimes covers cases of regimes founded on racist criteria. The rst two situations
imply the existence of distinct peoples. The third implies, if not the existence of two com-
pletely distinct peoples, at least a rift within a people which ensures hegemony of one
section in accordance with racist ideas.124
Obviously, and as noted earlier, the inclusion of certain liberationist wars within
the rules of humanitarian law applicable to international armed conicts caused
concern in certain states, as the scope of GA Resolution 2625 regarding self-determi-
Cf. International Committee of the Red Cross, Opinion Paper, How is the term Armed
Conict dened in international law? ( March ). Accessed September .
www.icrc.org/web/eng/siteeng.nsf/htmlall/armed-con ict-article-/ le/Opin-
ion-paper-armed-conict.pdf.
Frederic de Mulinen, Handbook on the Law of War for Armed Forces (Geneva: Interna-
tional Committee of the Red Cross, ), .
The Commentary, note above, .
238 III. Kosovo and Self-Determination and Minority Rights
nation categories is rather broader than colonial domination, alien occupation and
racist regimes. Resolution 2625 species in pertinent part that:
The Resolution devotes its special condemnation to colonialism, and states are ex-
horted to bring a speedy end to it, having regard to the freely expressed will of
the peoples concerned. Not to do so constitutes a violation of the principle, as well
as a denial of fundamental human rights, and is contrary to the Charter. The ap-
plicability of humanitarian laws to liberation conicts is rather more specic, and
the ICRCs position on Article 1(4) of the Protocol is stated in The Commentary as
follows:
[I]t cannot necessarily be deduced from the text that the scope of Article 1 is limited to
cases of decolonisation and occupation still in existence Theoretically at least, the no-
tion of Party to the conict, within the meaning of the Protocol, is fairly wide, involving
not only resistance movements representing a pre-existing subject of international law
and governments in exile, but also those ghting for conicts of self-determination or
national liberation.126
tional character of the conict, nor does it establish that character,127 in which case
recourse might be had to Additional Protocol 2.
ii Protocol 2
Protocol 2 additional to the four 1949 Geneva Conventions is relevant to non-inter-
national armed conicts, and Article 1(1) makes the application of the two Protocols
mutually exclusive. The price of tighter state self-regulation, beyond that in Com-
mon Article 3, is a narrow scope of application. For example, Article 1(1) excludes the
applicability of Protocol 2 should dissident armed forces or other organised armed
groups not be under responsible command, nor in control of part of state territory
so as to enable them to carry out sustained and concerted military operations and
to implement this Protocol. Further, the armed group must be engaged in conict
against the state, and not against other violent non-state actors within the territory,
the latter situation remaining one to which Common Article 3 might continue to
apply. These requirements make for a very strict set of pre-conditions, failing which
only Common Article 3 may (or may not) be applicable to liberationist forces which,
inter alia, operate clandestinely over a trans-boundary environment, are not consid-
ered a de facto authority within a state, are not engaged in conict against govern-
ment forces, and/or are not able to implement this Protocol.128
More limiting still, Article 1(2) sets upper and lower limits for a non-international
armed conict. Conict at or above the upper limit of Protocol 2 brings Common
Article 2 of the four 1949 Conventions into play. The lower limit excludes situations
of internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not being armed conicts,129 which
assists a state to downgrade its international obligations when facing certain forms
of violent civil disorder, to ignore minimal humanitarian rules, to disregard human
rights norms, and to re-impose order as it, and it alone, sees t. The strict criteria in
Article 1(1) are thus reinforced by Article 1(2), yet it is the broad scope left in Article
1(2) for state discretion in auto-interpretation that is of concern, as the characterisa-
tion that a government attributes to internal disorder permits state control over the
propaganda machine. Even the ICRC explanation of Article 1(2) is less than clear: in
regard to open struggle, the Protocol might apply; regarding lesser acts of violence,
Emphasis added. The Commentary, note above, , citing Draft Additional Protocols
to the Geneva Conventions, Commentaries (Geneva: International Committee of the
Red Cross, ), .
The Commentary, note above, -. See, e.g. Konstantin Obradovic, Interna-
tional humanitarian law and the Kosovo crisis, International Review of the Red Cross
(): , who notes that, events as from March caused the situation in
Kosovo to escalate into an internal armed conict, at least in my opinion. This could in
fact be a matter of dispute our media kept talking about terrorism.
For a discussion of this additional test, see Anthony Cullen, The Denition of Non-
International Armed Conict in the Rome Statute: An Analysis of the Threshold of Ap-
plication Contained in Article ()(f), Journal of Conict and Security Law () ():
.
240 III. Kosovo and Self-Determination and Minority Rights
e.g., those ranging from the spontaneous generation of acts of revolt to a struggle
between more or less organised groups and the authorities in power, it may not.130
As for mere internal tensions, the Commentary lists such situations as large-
scale arrests, and large numbers of political prisoners. In relation to the latter, the
ICRC appears to indulge in its own euphemism, as follows:
It should be noted that there is no legal denition of so-called political prisoners. They
may be referred to in very dierent ways depending on national legislation, for example,
persons detained for security reasons, persons detained by order of the executive, etc.131
National legislation can of course prompt social violence, just as national legislation
is often the principal obstacle to achieving rights of self-determination. In turn, the
high threshold of Protocol 2 may have been a price worth paying to ensure state
agreement to institute better rules for certain civil wars,132 but the ICRC expanded
its approach, in light of modern armed conicts more recently as follows:
Regarding this evolving viewpoint, the Kosovo Liberation Army which arose in the
mid-1990s was initially characterised both at the UN and by the ICRC as a domestic
terrorist group ghting against Serbian police forces.134 However, by the start of
the NATO bombing campaign in March 1999,135 there no longer seemed much doubt
The Commentary, note above, , quoting the International Committee of the Red
Cross submission to the Conference of Government Experts in (citation omitted).
Ibid. , note .
Implementation is distinct from ratication. The Socialist Federal Republic of Yugosla-
via ratied the Conventions in , and the two Additional Geneva Proto-
cols in . Slovenia, Croatia, and Bosnia-Herzegovina purported to succeed to all the
Geneva instruments in . See International Review of the Red Cross (May-June
): and , and Table III. States Party to the Protocols International Review
of the Red Cross (January-February ): , -, respectively. See also Special
Issue: The Kosovo Crisis and International Humanitarian Law, International Review of
the Red Cross (March ).
Emphasis in the original. International Committee of the Red Cross, Opinion Paper,
note above.
Sonja Boelaert-Suominen, The ICTY and the Kosovo Conict, International Review of
the Red Cross (): . See also Letters dated March and March , note
above.
See, e.g. Fifth Annual Report of the ICTY, UN Doc. A//, S// ( August
), , para. , noting the March conrmation that, the territorial and tem-
poral jurisdiction of the [Yugoslav] Tribunal covered any serious violations of inter-
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 241
that an armed conict between Serb military forces and the KLA was being waged.136
When called upon to adjudicate the matter, the Trial Chamber at the International
Criminal Tribunal for the former Territory of Yugoslavia found sucient evidence to
determine, in Case No. IT-02-54-T, that the KLA [had been] an organised military
force, with an ocial joint command structure, headquarters, designated zones of
operation, and the ability to procure, transport, and distribute arms,137 and that the
KLA acted under the direction of an organised civil authority.138 Somewhat more
controversially, the Trial Chamber also concluded that the KLA was, at times in
1998 and 1999, in sucient control of certain territory in Kosovo to conduct sus-
tained and concerted military actions.139
These conclusions imply although the Trial Panel did not so state explicitly
that the obligations of Protocol 2, rather than Common Article 3, attached during
the relevant time period to the internal armed conict between Serb forces and the
KLA. Had the tribunal not so held, however, matters would have been left either to
the minimal provisions of Common Article 3, or failing that, to what has increas-
ingly become the mixed situation of a combination of police and military action,
such that few if any protections are available. In other words, a situation of just war
is potentially the most dangerous for all concerned, as is now discussed.
b Just war
Due to the mass atrocities perpetrated in recent conicts, e.g., in the former terri-
tory of Yugoslavia, Rwanda, and elsewhere, widespread eorts have been made to
strengthen the notion of international crimes, such that individual criminal respon-
sibility could attach to those perpetrating particularly heinous acts as an accepted
universal norm. The 1998 Statute of Rome for an International Criminal Court, in
particular, constituted a huge step forward in providing a more comprehensive and
inclusive approach to certain crimes deemed to be of concern as a matter of course
to the international community, whether or not those crimes were perpetrated dur-
ing times of war or of peace. For example, two categories of criminal act over which
the new Court has jurisdiction genocide and crimes against humanity require
no nexus to an armed conict. In turn, the mere fact that gross and/or mass atroci-
ties occur outside of an armed conict has helped to reinforce an agenda designed
to sidestep the many diculties of categorisation, in preference for a system which
national humanitarian law taking place in Kosovo. See also Public Statement by the
International Committee of the Red Cross on the situation in Kosovo, International
Review of the Red Cross (): (civilians the main targets, and not collateral
damage).
See Case No. IT---T, Prosecutor v Milosevic, Decision on Motion for Judgement of
Acquittal Under Rule bis., ( June ), (denial of partial defence that no armed
conict existed before March ).
Ibid. para. .
Ibid. para. .
Ibid. para. .
242 III. Kosovo and Self-Determination and Minority Rights
The remit of the ILA Committee by no means was intended to address fundamental
state duties to respect humanitarian rules, and at this point, little insight was af-
forded into the on-going debates which surround the denomination of the dierent
forms of violence utilised in dierent contexts. Instead, the two preliminary criteria
reect a simple, pragmatic approach to a factual situation. The Use of Force Com-
mittee submitted its nal report to the ILA Annual Conference, held between 15 - 20
August 2010 in The Hague.142 The nal report expands greatly on the detail of recent
armed and domestic conicts, in order better to distinguish between their den-
ing characteristics. The nal report does not deviate from the original two criteria
highlighted above, but after consideration of literally hundreds of post-1945 violent
situations, the Committee was able to conclude that the international community
embraces a common understanding of armed conict.143 In turn, evidence in sup-
See Mary Ellen OConnell, Dening Armed Conict, Journal of Conict & Security
Law (): .
International Law Association, Initial Report, note above.
International Law Association Use of Force Committee, Final Report (Draft) on the
Meaning of Armed Conict in International Law, submitted at the International Law
Association Annual Conference, The Hague, - August , -. Accessed
September . www.ila-hq.org.
Ibid. .
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 243
port of this common understanding was provided negatively, by means of the fol-
lowing consequences to third states of an armed conict occurring elsewhere:
In addition [to laws of armed conict], states that provide asylum to persons eeing the
violence of armed conict will have the duty to do so; treaty obligations may be implicat-
ed; the law of neutrality may be triggered; arms control agreements are aected, and UN
forces engaged in armed con ict will have rights and duties not applicable in operations
outside of armed conict. These are just some of the areas of international law that are
aected by the outbreak of armed conict.144
Perhaps most importantly states may only claim belligerent rights during an armed con-
ict. To claim such rights outside of an armed conict risks violating fundamental human
rights that prevail in non-armed conict.148
It is of huge signicance that the Use of Force Committee points essentially to the
same criteria as those utilised in the ICRCs eorts to promote humanitarian re-
straint, and the Committees conclusions have serious implications for the overall
distribution of power in the UN era. This is so for many reasons, not least of which
is that, while states place themselves under international obligations to act lawfully
in relation to each other, it has been thought imperative to the good working of the
UN system that each state retains its sovereign exibilities to maintain good order
within its own domestic borders. The problem which has arisen in recent years in
particular is that certain states have assumed the right if not the duty to impose
particular modalities of good order on other states, and when doing so, not to make
Ibid.
Ibid. -.
Ibid.
Ibid. .
Ibid. .
244 III. Kosovo and Self-Determination and Minority Rights
much if any reference to international law. In contrast, the nal Committee Report
disagrees with this recent tendency, particularly when the purpose of extra-terri-
torial enforcement activity is solely to buttress the enforcing states own national
security. This then reinforces the point made by Professor Brownlie, that UN organs
should disregard a strict approach to the UN Charters Article 2(7) when interna-
tional principles are in issue.149
On the other hand, it may seem odd today that the characterisation of so recur-
ring a human event as war should still cause uncertainty in government, military,
and legal circles, but it is equally easy, relatively speaking, to understand why this
should be the case. International society is not ready perhaps for current attempts
to centralise more control over individual states, and certain domestic situations
may in fact require a forceful cooling down by government coercion. However, it is
equally important to recall that government over-reaction can become the problem
rather than the solution, and that further breakdowns in lawful limits to armed force
endanger all states, particularly when the growth in support is factored-in of theo-
ries of corrective or remedial self-determination. This point brings matters around
to the legal vacuum present in many non-international armed conicts, particularly
as the details of humanitarian law obligations depend on such behavioural norms as
responsible organisation, compliance with military discipline, proportionate means
and methods of warfare, and so on, the formal obligations of which are mitigated
somewhat by sliding scales of special battleeld notions of necessity and propor-
tionality.150
Most crucially, the main drawback of humanitarian rules is that once implement-
ed, there is no further potential to derogate from them. This means that a conict
in which those rules are not recognised as relevant is covered only by universal and/
or regional human rights instruments,151 which, if accepted by the relevant state,
permit derogation, e.g. during emergency situations threatening the life of the na-
tion, for all but the strongest rights such as the right to life. For situations moving in
and out of armed conict over a period of time, or which are even less clear-cut, the
legal situation becomes highly opaque. Accordingly, recent arguments in support
of converging minimal humanitarian and human rights norms should be treated
with high suspicion, if not outright alarm, as the commingling of the benets of the
two discrete areas of law is more conducive to omitting their restraints, and hence,
to disregarding law altogether. As even minimal humanitarian provisions remain
Laing, note above. See also Shaw, note above, : international law treats civil
wars as purely internal matters, with the possible exception of self-determination con-
icts.
See Wol Heintshel von Heinegg, The Current State of International Prize Law, in In-
ternational Economic Law and Armed Conict, ed. Harry H.G. Post (London: Martinus
Nijho Publishers, ), , -.
See, e.g. Preamble to Additional Protocol : international instruments relating to hu-
man rights oer a basic protection to the human person.
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 245
stronger than those found in derogable human rights laws,152 it is thus to the great
credit of Kosovo that the overwhelming majority of its elected representatives chose
to embrace an as-yet unmolested separate future under the full glare of international
attention, stewardship, and administration.
On the other hand, terms such as peace or war alone communicate as little
in terms of law as does self-determination, yet the high-level determination at
The Hague War Crimes Tribunal, that humanitarian laws were clearly applicable
to Kosovos armed struggle against a racist [Serbian] regime,153 continues to prove
persuasive. When the time arrived for the Kosovo Albanian authorities to issue their
UDI, and to embark on a territorial secession which by no means has resulted from
a friendly and/or consensual transition to self-governing independence, Serbia was
blocked by international action (and the recent ICJ Advisory Opinion) from further
unlawful uses of force, gross violations of human rights, and war crimes in its former
province. What can be concluded is that the resulting international stalemate may
prove to protect both Serbia and Kosovo from each other far more than either could
have done alone. Moreover, Serbia has lost and re-acquired its own independence
more than once in its long history,154 and for it to insist at this point in time on the
perpetuation of a nal rump of its former twentieth century territorial integrity is to
conate not only a desired map with the territory, but also, history with the future.
4 Conclusion
Geo-political concerns during the post-1945 era have mandated certain constraints
on the exercise by peoples of their self-determination, and demands for self-determi-
nation which do not result from peaceful, friendly, or tolerable consensus continue
to pose deep questions for the international community. The early connement
of the principle to decolonisation certainly proved useful, but its time has nearly
passed. Shows of temporal pragmatism and state solidarity are today challenged in
new directions, such as in the growing importance of non-discriminatory human
rights guarantees to self-determination, which underscores a point made by Shaw:
international law has sometimes to modify its reactions to the consequences of
For a broad discussion of this issue, see Antonopoulos, note above. See also William
Abresch, A Human Rights Law of Internal Armed Conict: The European Court of
Human Rights in Chechnya, European Journal of International Law (): .
See quotation accompanying note above. Cf. Report of the World Conference to
Combat Racism and Racial Discrimination (New York: United Nations, ), Pro-
gramme of Action, Pt. A (Measures at the national level) Article (ii).
Useful historical overviews are provided in Barbara Jelavich, History of the Balkans:
Eighteenth and Nineteenth Centuries (Cambridge: Cambridge University Press, )
Volume I; The Other Balkan Wars: A Carnegie Endowment Inquiry in Retrospect
(Washington DC: Carnegie Endowment for International Peace, , rst published
).
246 III. Kosovo and Self-Determination and Minority Rights
successful violations of its rules to take into account the exigencies of reality.155 As
noted in the Commentary:
The principle [of self-determination], which was proclaimed by the French Revolution,
and was subsequently often denied, has from the outset constantly come up against the
legal order; this did not prevent it from being applied with increasing frequency and from
growing in strength [as] a guiding principle in politics and a rule of exception in inter-
national law.156
done, perhaps it is only via such a peace dividend that wider political, economic, and
social/cultural progress can be incorporated into international law.159
As a nal point, a majority in Kosovo has voted for independence, which was an
accomplishment perhaps not made under the express banner of self-determination.
However, questions such as whether or not the UDI was in fact legal in interna-
tional law, whether or not Kosovo had any pre-existing entitlement to self-deter-
mination, and/or whether or not the Kosovo UDI has set a dangerous precedent
for other struggling groups, are issues which can easily become moot in time if
aorded enough time. At the end of the day, the Kosovars themselves hold the ulti-
mate trump card: they possess collectively the inherent human rights of resistance
to, and revolt against, forms of governance they do not want. As noted by John Stu-
art Mill,
A man who has nothing which he cares about more than he does about his personal safety
is a miserable creature who has no chance of being free 160
In turn, interpretive legal gaps too often in practice indicate only that theoretical
bridges are necessitated in order to conceal certain international realities, yet inter-
national law would mean little if the non-prohibition of Kosovos UDI in interna-
tional law found by the ICJ does not inject a bit more concrete reality into the cur-
rent situation. Whilst there is little doubt that the former Serb province of Kosovo
was never a pre-existing state administrative unit or similar,161 or that Serbia will
never consent to Kosovos complete territorial separation, the General Assembly is
only to be commended for locating a means of peaceful delay with its referral to
the ICJ for the latters legal advices a delay which aorded additional time for fur-
ther diplomatic overtures regarding the appropriateness of international transitional
arrangements for Kosovo, and which have helped to disincline certain states from
chauvinistic forms of outside interference. In conclusion, whether right or wrong,
Kosovos transit to a future status has at least so far been accomplished peace-
fully.
STEPHEN TIERNEY
1 Introduction
In this chapter it will be argued that in order to understand the willingness of many
states to recognise Kosovo as a new state, an act that ies in the face of the post-war
consensus on the illegality of secession1, we need to return to the 1998-99 Kosovo
crisis and address the dynamics that informed foreign intervention at that time. We
will argue that this intervention was motivated as much by a self-determination im-
perative whereby foreign powers sought a detailed realignment of the Yugoslav
constitution as by humanitarian concerns.
Much of the literature on foreign intervention in the Federal Republic of Yugosla-
via (the FRY)2 at the time of the 1998-99 Kosovo3 crisis addressed both the nature of
the intervention and its length in fairly narrow terms. In respect of the latter issue,
the intervention was generally taken to have begun with NATOs aerial bombard-
ment which commenced upon 24 March 1999 (with the bombardment, if not the in-
tervention, ending on 10 June 1999); while in terms of the nature of the intervention,
debate about the legality and/or the justiability of NATOs bombing campaign has
largely revolved around its construction as a purported instance of humanitarian
intervention, thereby conning the debate concerning both the nature and the legit-
imacy of western activity within the by now well-established discourse on humani-
tarian law. The sides of this debate aligned roughly as follows: on the one hand there
were those who have sought to justify the air assault by arguing that it was essential
to prevent a humanitarian catastrophe in terms of refugee movements resulting
from a campaign of ethnic cleansing orchestrated by the FRY security forces.4 On
the other hand there were two main (and over-lapping) arguments which consid-
ered the intervention to be unjustiable on humanitarian grounds. These suggested
either that humanitarian intervention without Security Council authorisation is il-
legal under international law;5 or that any legitimacy claimed for the intervention,
whether moral of legal, was undermined by the fact that the western powers were
motivated by strategic rather than humanitarian concerns.6
This chapter will argue that the intervention should not be addressed in such a
temporally and substantively limited way, and that its legality in fact ought to be
addressed beyond the exclusive connes of the humanitarian intervention narra-
tive, an approach that will help us come to terms with the international response to
Kosovos Declaration of Independence on 17 February 2008. On a temporal level, it
seems that, given the intensity of the international involvement in FRYs aairs from
March 1998 onwards, any intervention, whether humanitarian or otherwise, should
properly be considered to have taken place over this year-long period, and not simply
when NATOs bombing began. Although the bombing campaign clearly represented
a dierent order of intervention, the period from March 1998 saw an intense process
of coercive diplomacy which included, from August 1998 onwards, threats that force
would be used.7 Secondly, in substantive terms, it would appear that the agenda of
the Western powers throughout this period was not exclusively, or even perhaps
primarily, driven by humanitarian concerns. That is not to say that there was not a
humanitarian problem certainly from the summer of 1998 onwards, over 200,000
Kosovars were displaced from their homes, and between January and March 1999
this problem intensied8 but it is equally clear that the diplomatic endeavours of
the various international organisations went beyond attempts either to bring about
an end to the military conict between the FRY and the Kosovo Liberation Army
(KLA), or to alleviate humanitarian problems. The international community in fact
sought to broker an overall political settlement, and to this end in both October
1998 and March 1999 (the latter occasion being the Rambouillet forum) the Western
powers attempted to impose a model of autonomy for Kosovo which was drafted by
them, and which, if accepted by Belgrade, would have amounted to nothing less than
an externally imposed re-working of the constitutions of Serbia and the FRY. Finally
it is also important to reconsider what is meant by the term intervention itself.
Certainly it may involve the use or threat of force, but it should also be broad enough
to include the use of coercive diplomacy, including but not exhausted by the use
of economic and nancial sanctions. It is important to recognise that intervention
can take dierent forms and that diplomacy of this kind when exercised by power-
ful states or international actors can impact upon state the reality of sovereignty.
Martin Loughlin discusses sovereignty as having both a legal and political dimen-
sion. These he denes, respectively, as competence representing legal authority,
and capacity representing political power.9 While coercive diplomacy may not af-
Going back further, in many ways the long intervention has its origins in the dis-
solution of the Yugoslav state in the early s. The Dayton Accord, the continuing
presence of the UN in Bosnia-Herzegovina, and the ongoing work of the International
Criminal Tribunal for the former Yugoslavia are all examples of sustained intervention
in the former-Yugoslav lands by the international community. Below we will discuss
how the fall-out of Yugoslavias collapse, in particular the Bosnian war, helped shape
the approach taken by international actors from -. It seems that NATOs bombing
campaign in Kosovo requires to be set within this broader context.
UNHCR gures cited by IIC Report, note above, .
Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, ), .
252 III. Kosovo and Self-Determination and Minority Rights
fect a states legal competence to control its territory, it can certainly impinge upon
its political capacity; and to ignore this political dimension is to fall into what Neil
Walker terms sociological navet.10 For example, powerful states can control trade
terms for errant states, and organisations like NATO and the European Union can
use membership of important economic and political bodies as ways of inuencing
state behaviour.
In this chapter it is intended to explore how Kosovan autonomy became such an
important driving-force behind Western intervention, to the extent that this issue,
in addition to humanitarian problems in Kosovo, was instrumental in the NATO de-
cision-making process which resulted in the bombing campaign of March 1999 and
a factor that helps explain how Kosovo has moved to the verge of statehood today
with the complicity of the Western powers.11 The pressure exerted upon the FRY to
reach an autonomy settlement with Kosovo begs the question: why should the inter-
nal constitutional arrangements of the FRY have been a source of such international
concern? In a sense the intervention in Kosovo, with its strong autonomy dimension,
recalls Hurst Hannums argument set out in 1990 that the, right of autonomy, was
emerging as, a new principle of international law in the interstices of contempo-
rary denitions of sovereignty, self-determination, and the human rights of indi-
viduals and groups.12 This chapter will address the Wests intervention from this
perspective since, at the very least, both humanitarian and autonomy concerns com-
bined in driving the international agenda.13 It has even been suggested that NATOs
intervention represents a nexus between the principle of self-determination and the
developing law of humanitarian intervention in terms of their nature and content.14
Whether or not we can go as far as this is not clear, but it does seem that the au-
tonomy dimension in the Wests approach to Kosovo ought to be treated seriously.
Neil Walker, Sovereignty and Dierentiated Integration in the European Union, Euro-
pean Law Journal (): -.
On February the EU presidency announced that member states were free to
decide individually whether to recognise Kosovos independence. Most have done so.
Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation
of Conicting Rights (Philadelphia, PA: University of Pennsylvania Press, ), . Ref-
erences to autonomy in this chapter are very case specic and allude to particular
models of self-government which were advanced specically for Kosovo; as such the
word is used as, a relative term which describes the extent or degree of independence of
a particular entity, rather than dening a particular level of independence which can be
designated as reaching the status of autonomy. Hurst Hannum and Richard B. Lillich,
The Concept of Autonomy in International Law, American Journal of International
Law (): -.
It perhaps also reects the fact that in recent years there has developed within Europe,
particularly in light of the collapse of Yugoslavia, Czechoslovakia and the USSR, a grow-
ing emphasis upon autonomy for national minorities as a political and legal priority, a
point returned to in the conclusion below.
Dajena Kumbaro, The Kosovo Crisis in an International Law Perspective: Self-Determi-
nation, Territorial Integrity and the NATO Intervention, Final Report (NATO Oce of
Information and Press, ), .
Chapter 8, Stephen Tierney The Long Intervention in Kosovo: a Self-Determination Imperative? 253
In Part 2, the story of Western involvement from March 1998 to the end of that
year will be re-traced in order to illustrate just how pervasive was the determination
of the international community, not only to end the military conict and ameliorate
humanitarian suering, but to secure a political resolution to the perceived problem
of Kosovos constitutional status. In Part 3 it will be suggested that recent Yugo-
slav history, and in particular the lingering international role in the former-Yugoslav
lands by the late 1990s, helps explain why, in the case of Kosovo, the internation-
al community reacted in the way that it did, when similar pressure has not been
brought to bear on other states throughout the world which deny autonomy to their
internal minorities. Among the factors which seem to have motivated the Western
powers were: rst, the recent memory of the UNs failure to stop the internecine
wars which characterised the SFRYs dissolution (particularly the war in Bosnia),
and the way in which the European Communitys approach to state recognition in
the wake of that dissolution had left Kosovo as perhaps the most prominent loser in
this recognition process; and secondly, a concern on the part of the international
community with the way in which Kosovan autonomy, previously entrenched in the
SFRY constitution of 1974, had been emasculated from 1989 onwards by both Serbia
and the FRY in a process which served to deny Kosovo Albanians both the minority
rights and the right of internal self-determination which the European Community
arbitration process in the early 1990s had sought to guarantee.15
Below both Kosovos status as an autonomous province of Serbia and the work of the
arbitration process will be discussed.
254 III. Kosovo and Self-Determination and Minority Rights
An initial meeting of the Foreign Ministers of Contact Group states was held in Lon-
don. Oce of the High Representative, Statement of the London Contact Group Meet-
ing, March . The Contact Group had in fact been established in April as the
Contact Group for Bosnia and Herzegovina. See The Kosovo Conict and International
Law: An Analytical Documentation -, Cambridge International Document Se-
ries, ed. Heike Kreiger (Cambridge: Cambridge University Press, ), volume II, .
An example of this was the eort undertaken by the Contact Group to secure Security
Council backing for its initiatives. As early as March the Contact Group requested
the Security Council to impose an arms embargo on the FRY which was eventually
secured through SC Res. , UN Doc. S/RES/ ( March ). Another example
is the way in which the Contact Group referred frequently to SC Res. , UN Doc. S/
RES/ ( March ) and SC Res. , UN Doc. S/RES/ ( September )
in both framing its eorts to resolve the crisis and in claiming legitimacy for its role as
mediator.
For example the Statement of March proposed a new diplomatic mission by former
Spanish Prime Minister Felipe Gonzalez.
Chapter 8, Stephen Tierney The Long Intervention in Kosovo: a Self-Determination Imperative? 255
term solution would require that this issue be addressed. The remainder of this sec-
tion of the chapter will discuss how the issue of autonomy for Kosovo remained high
on the international agenda through to the autumn of 1998 in terms of both the at-
tempts to secure a diplomatic settlement in the spring and summer of 1998, and the
agreements secured in October 1998 (which in the end were not fully implemented).
erendum, the dispute between FRY and the western powers crystallised to a large
extent around the issue of self-determination. On the one hand, the Contact Group,
in arguing for greater internal autonomy for Kosovo, was suggesting implicitly if
not explicitly that the people of Kosovo had a right to internal self-determination,
and that this right was not being properly accommodated by the state; while, on the
other hand, Belgrade considered that Kosovars did not constitute a separate people
and that the relevant self-determining units were either the people of the FRY or
the people of Serbia (both of which entities incorporated Kosovo). Working on the
assumption that Serbians were the relevant people for the purposes of internal self-
determination, the Yugoslav authorities could point to the April referendum as a
clear expression of public faith in the Serbian authorities to reject external interfer-
ence. Furthermore, throughout the crisis, the federal government could rely upon
another important feature of the right to self-determination under international law:
namely, the way in which references to it in international instruments are so often
juxtaposed with concomitant commitments to the territorial integrity of the state
a fact which at the very least precluded any prospect of independence for Kosovo
without the FRYs consent (such a commitment to the FRYs territorial integrity was
included in the Contact Groups March statement, and was thereafter repeated fre-
quently by international organisations).
This linkage between the principles of territorial integrity and self-determination
highlights the legal and practical diculties which any international body or group
of states face in attempting to pressurise a state into agreeing to autonomy for an
internal minority when the state resists such pressure and is able to demonstrate
strong popular opposition to any external involvement in such a process of constitu-
tional accommodation. At a deeper level, it also demonstrates the tension or paradox
within the principle of self-determination which can, through its commitment to
territorial integrity, to some extent seemingly belie the commitment to self-govern-
ment for all peoples which it claims to assert.23 In this context, the republic-wide
referendum held by Serbia echoed that earlier referendum held in Bosnia in 1992
referred to above on the recommendation of the Badinter Commission.24 Just as the
principle of self-determination was used to defend the result of this referendum, and
hence Bosnias territorial integrity, in the face of secessionism by Bosnian Serbs, so
too could Serbia rely on the referendum of April 1998 as legitimising its opposition
Martti Koskenniemi addresses the issue from another perspective that of laws cred-
ibility. If self-determination is open to reinterpretation so as to accord a right to state-
hood in response to new generations of group rights claims this may expose internation-
al laws inherent vulnerability since it could lead to the meaning of self-determination as
a legal principle being too readily open to processes of re-conguration which in the end
could undermine the very concept of statehood itself. Martti Koskenniemi, Theory,
Implications for the Practitioner, in Theory and International Law: an Introduction,
eds. P. Allott et. al. (London: British Institute of International and Comparative Law,
), .
Arbitration Commission of the Peace Conference on Yugoslavia, International Legal
Materials (): , Opinion No. , para. .
Chapter 8, Stephen Tierney The Long Intervention in Kosovo: a Self-Determination Imperative? 257
to secessionist Kosovars.25 Throughout the crisis, the UN Security Council was also
aware of this diculty, and in its subsequent endorsements of greater autonomy for
Kosovo it too conrmed the commitment of all Member States to the sovereignty
and territorial integrity of the Federal Republic of Yugoslavia.26 It is no surprise,
therefore, that the hard and fast linkage between the principle of self-determination
and that of territorial integrity comes under criticism. For example, Hurst Hannum
is one commentator who, in the Kosovo context, has recently suggested that in an in-
ternational quest for greater autonomy for an oppressed group, the oppressor states
right to territorial integrity should not be treated as an absolute consideration: Why
should we assume that the frontiers that existed at the dawn of a new millennium
should be maintained forever. Arent other values preserving cultural identity,
increasing meaningful and eective participation equally important?27 In many
ways the Kosovo crisis even going back to the 1990s already raised questions for the
discipline of international law in highlighting so starkly the paradoxes and inconsis-
tencies which attend the right of self-determination, questions that would only come
to a head as the nal status of the territory became an imperative concern.28
Admittedly the situation was, from another perspective, in fact, very dierent given that
Bosnia and Herzegovina prior to its recognition had promised autonomy for Bosnian
Serbs which the FRY and Serbia were denying to Kosovo. Nonetheless the Bosnian ex-
perience does call into question the decision of the states of the European Community
to recognise only former Yugoslav republics as states through the application of the
principle of uti possidetis juris to republican borders (this will be discussed further
below). See also J. Laponce, National Self-Determination and Referendums: the Case
for Territorial Revisionism, Nationalism and Ethnic Politics (): -. The use of
referendums both in Serbia and in Bosnia highlight how these devices can exacerbate
problematic situations by polarising rather than reconciling divergent positions within
a territory. Margaret Moore, Normative Justications for Liberal Nationalism: Justice,
Democracy and National Identity, Nations and Nationalism (): -. Michael
Lusztig and Colin Knox, Good things and small packages: lessons from Canada for the
Northern Irish Constitutional Settlement, Nations and Nationalism (): -.
It supported the Contact Groups attempts to secure a peaceful resolution of the conict
which would include an enhanced status for Kosovo, involving a substantially greater
degree of autonomy and meaningful self-administration. SC Res. , UN Doc. S/
RES/ ( March ), para. ; SC Res. , UN Doc. S/RES/ ( September
), preamble; and SC Res. , UN Doc. S/RES/ ( October ), preamble.
Hurst Hannum, Territorial Autonomy: Permanent Solution or Step Toward Secession?
(ZEF Bonn: Centre for Development Research, ), .
P. Hilpold, The Kosovo Case and International Law: Looking for Applicable Theories,
Chinese Journal of International Law (): -.
258 III. Kosovo and Self-Determination and Minority Rights
This is evident in the use of sanctions which began with the Contact Group call-
ing for an arms embargo in March 1998, and which also led to the imposition of
economic sanctions as the Contact Group attempted to encourage an agreement
on Kosovos status. This approach was set out by the Contact Group at its meeting
of 9 March as follows: Unless the FRY takes steps to resolve the serious political
and human rights issues in Kosovo, there is no prospect of any improvement in its
international standing. On the other hand, concrete progress to resolve the serious
political and human rights issues in Kosovo will improve the international position
of the FRY and prospects for normalisation of its international relationships and
full rehabilitation in international institutions.29 In this regard President Miloevi
was given an ultimatum, to take rapid and eective steps to stop the violence and
engage in a commitment to nd a political solution to the issue of Kosovo through
dialogue.30
Since the Dayton Agreement concluded on 14 December 1995, and largely in con-
sequence of the unsatisfactory situation in Kosovo, an outer wall of United States-
led sanctions against the FRY had remained in place which prevented the FRYs ad-
mission to the World Bank and the IMF; and now pressure mounted to extend these
restrictions. Initially in April 1998, as tension grew, the Contact Group imposed a
freeze on FRY assets held abroad.31 Tying these sanctions to its wider agenda, the
Group conrmed that, on the one hand, the freeze would be lifted immediately if
Belgrade took the necessary steps, as outlined by the Group, to engage in political
dialogue with the Kosovo Albanian leadership; but that, on the other hand, a fail-
ure to engage in dialogue would result in further sanctions aimed at halting new
investment in the FRY.32 In other words, sanctions were being used to pressurise
Belgrade into an autonomy agreement. Throughout the spring of 1998 it was repeat-
edly evident that sanctions were being employed as both threat and inducement in
an attempt to broker a political deal. For example, since negotiations had not begun
by 9 May 1998, on that date the Contact Group indicated that it would impose the
investment ban on the FRY;33 however, two weeks later, on 23 May, with talks having
begun between Miloevi and Rugova on 15 May, the Group eased sanctions and
decided not to put this ban into eect.34
The Contact Groups strategy on the use of sanctions was endorsed by other ac-
tors. For example, the UN Security Council followed the Contact Group lead, not
only by imposing an arms embargo, but also by endorsing its attempt to produce a
political settlement.35 Hence both Security Council Resolutions 1160 and 1199 had
three main aims: the two short-term goals of conict control and alleviation of the
growing humanitarian crisis; and thirdly, the more ambitious objective of securing a
political resolution to the dispute. In this context, the Security Council called upon
the authorities in Belgrade and the leadership of the Kosovar Albanian community,
urgently to enter without preconditions into a meaningful dialogue on political
status issues.36 Furthermore, it set out its intention to review the situation on the
basis of reports by the Secretary-General who would assess whether the Govern-
ment of the FRY was co-operating with the UNs demand that it begin a substantive
dialogue,37 which should include the participation of an outside representative or
representatives (notably of course also a Contact Group demand).38 The Security
Councils call for talks on autonomy again raises the issue of self-determination in
relation to Kosovo. In a report written for NATO, Dajena Kumbaro argued that the
call in SC Res. 1160 for a meaningful dialogue on political status issues, and its, sup-
port for an enhanced status for Kosovo which would include a substantially greater
degree of autonomy and meaningful self-administration,39 is recognition of Kosovos
The Group undertook to consider later in May whether to continue with the freeze on
the FRY funds held abroad as well as with the other sanctions still in place Serbian
Sanctions put on Hold, Reuters, May . The Contact Group was now faced with a
situation in which it had relaxed sanctions against the FRY only to see the Kosovo Alba-
nians suspend the talks scheduled for June in the face of the advancement by Serbian/
FRY forces on civilian population centres, a scenario which prompted Albanias Foreign
Minister Pascal Milo to comment: Unfortunately the Contact Group of countries has
given Milosevic much more carrot than stick. Big Powers plan Kosovo Meeting Next
Week, Reuters, June . It was widely suspected that Belgrade was in fact using the
talks as a smoke-screen to continue its military campaign in Kosovo whilst at the same
time beneting from an easing of sanctions.
It would also in due course endorse the October Agreements which were eventually
brokered by the Group in the autumn of (see below).
SC Res. , UN Doc. S/RES/ ( March ), para. .
Ibid. para. (a).
Ibid. para. . Reiterating that the FRY could either improve or weaken its international
standing by the action it took, the Resolution armed that: concrete progress to re-
solve the serious political and human rights issues in Kosovo will improve the interna-
tional position of the Federal Republic of Yugoslavia and prospects for normalisation of
its international relationships and full participation in international institutions, (para
), but also armed that, failure to make constructive progress towards the peaceful
resolution of the situation in Kosovo will lead to the consideration of additional meas-
ures. para. .
SC Res , UN Doc. S/RES/ ( March ), para. .
260 III. Kosovo and Self-Determination and Minority Rights
to draw up a new peace plan which was to involve a much more detailed level of in-
ternational pressure, including an elaborate plan for a constitutional solution to the
perceived problem of Kosovos status. For example, a Contact Group statement of 12
June 1998 set out further demands,45 and by 9 July the group had prepared an outline
peace agreement based on a plan of autonomy for Kosovo. This plan would have
entailed substantial self-government for Kosovo but continued to rule out indepen-
dence as an option.46 Throughout the summer this plan was the basis of increasingly
urgent and proactive international demands for a detailed constitutional solution;
but, once again, as had occurred in May, moves towards political dialogue were soon
undone by events on the ground, and by the end of July ghting had intensied as a
result of a massive Serbian/FRY oensive against the KLA, which led ultimately to
the collapse of this initiative.47
This oensive reminded the Security Council of the need to force the political
pace, and, in yet another display of the international co-operation which prevailed at
this time, the Security Council endorsed the Contact Groups June initiative by way
of Res. 1199 (1998).48 One particular catalyst for this further Security Council reso-
lution was the Secretary-Generals report to the Security Council of 4 September,
which contained a dramatic depiction of the declining humanitarian and security
situation resulting from the ongoing summer oensive against the KLA. The pros-
pect of new talks had further diminished from the already unpromising position
concern that in light of this failure, mounting violence in Kosovo might overwhelm
political eorts to prevent further escalation of the crisis. UN Doc. S// ( June
). See also: UN Doc. S// ( July ), para. ; and Information on the Situa-
tion in Kosovo and on Measures taken by the Organisation for Security and Co-operation
in Europe, submitted pursuant to paragraphs and of SC Resolution (), UN
Doc. S// ( August ), paras. -.
A British Foreign Oce spokesman announced the demand by Contact Group minis-
ters of an immediate cessation of all action by the security forces against civilians, un-
impeded access for international monitors and humanitarian organisations to Kosovo,
the right of refugees to return to their homes and rapid progress towards a dialogue
with the Kosovo Albanian leadership. Contact Group Statement, June . Russia
Opposes NATO Force against Serbia, Reuters, June .
Serbian Parties Hail Kosovo Plan, US Warns of War, Reuters, July .
This led to a growing pessimism among the Contact Group powers. Despair in West
as Prospects for Peace Diminish, Reuters, July ; Kosovo Faces All-out War as
Serb Tanks Shell Rebels, Daily Telegraph (London), July . On July the OSCE
reported that it had failed to persuade the FRY government to allow a permanent OSCE
diplomatic mission to return to Kosovo or to accept the mediation of Felipe Gonzalez
without a restoration of Yugoslavias full membership of the OSCE. Milosevic Refuses
Permanent OSCE Mission, Reuters, July . By August Reuters reported that
the West was growing increasingly frustrated and that again NATO was drawing up
contingency plans. West warns Milosevic on Kosovo, Reuters, August . On
August the Albanian parliament appealed to the international community to intervene
militarily in Kosovo, Albania urges Western Military Action in Kosovo, Reuters,
August .
SC Res. , UN Doc. S/RES/ ( September ), para. .
262 III. Kosovo and Self-Determination and Minority Rights
which had prevailed in the spring of 1998,49 and, therefore, in a more urgent tone,
Security Council Resolution 1199 called upon the authorities in the FRY and the
Kosovo Albanian leadership to enter immediately into a meaningful dialogue.50 This
resolution echoed several of the Contact Groups demands originally contained in
the Groups statement of 12 June 1998, for example: that these talks should take place
without preconditions and with international involvement; that they should involve
rapid progress to a clear timetable; and that they should lead to an end to the crisis
and to a, negotiated political solution to the issue of Kosovo.51
The worsening situation towards late summer52 eventually led to the hardening
of the Wests attitude when it came to commitments undertaken by the FRY in Oc-
tober which were secured against the back-drop of a NATO ultimatum on the use
of force. This followed the issue on 24 September of an Activation Warning by the
North Atlantic Council, which made the prospect of military operations ever more
real. The NATO ultimatum was taken seriously by Belgrade and led to a cease-re
and then to a political settlement brokered by Richard Holbrooke.53 The October
process had two main elements: rst, was a two-part verication agreement whereby
the FRY undertook to reduce its forces in Kosovo to pre-conict levels, and assented
to mechanisms by which this process could be veried;54 and secondly, (and very
signicantly given the Contact Groups agenda over the previous eight months), was
the main agreement which envisaged a political settlement to the crisis, signed on
The Secretary-Generals report in August followed the collapse of the Contact Groups
July initiative to broker a settlement, and included a report from the OSCE which high-
lighted that the Republic of Serbia continued to maintain the precondition that dia-
logue should be conducted within the framework of both Serbia and the FRY and that
the territorial integrity of the FRY should rst be guaranteed. UN Doc. S// (
August ), Annex I, para. . The Secretary Generals reports were very inuential:
for example, UN Doc. S// ( June ); UN Doc. S// ( July ); UN
Doc. S// ( August ); UN Doc. S// ( September ). His reports
continued up until the air-strikes of March : UN Doc. S// ( October );
UN Doc. S// ( November ); UN Doc. S// ( December );
UN Doc. S// ( January ); UN Doc. S// ( March ).
This resolution adopted much stronger language than Security Council Resolution
() in demanding that all parties cease hostilities. SC Res. , UN Doc. S/RES/
( September ), para. . As such it a rmed that the deterioration of the situation in
Kosovo constituted a threat to peace and security in the region. SC Res. , Preamble.
SC Res. , para. . The Security Councils language was, by October , to be-
come even more imperative in Resolution () which stressed the urgent need
for such dialogue. SC Res. , S/RES/ ( October ), para. .
Notably, however, although there were a large number of displaced persons, in terms of
the ghting itself Tim Judah comments: [t]here were few casualties on either side. Tim
Judah, Kosovo: War and Revenge (New Haven and London: Yale University Press, ),
.
By this agreement the FRY agreed to comply with the demands of the Security Council.
These two agreements were signed on and October.
Chapter 8, Stephen Tierney The Long Intervention in Kosovo: a Self-Determination Imperative? 263
October 12.55 This latter agreement emerged from the paper prepared by the Contact
Group which proposed autonomy for Kosovo within the FRY. It was then promoted
by the US Ambassador to Macedonia, Christopher Hill in a process of shuttle di-
plomacy over the summer of 1998. The substance of the agreement was a guarantee
of autonomy for Kosovo for an interim three year period at the end of which the
agreement would be re-assessed.56 The Contact Group was keen to entrench this
settlement quickly and, therefore, the agreement included a public commitment by
the FRY to complete negotiations on a framework for a political settlement by 2 No-
vember ; by 9 November the detailed rules and procedure for an election were to be
agreed, and the election itself was to be held within nine months under OSCE super-
vision. Finally, the integrated nature of the international approach was further rein-
forced by the Security Council in Res. 1203 (1998) which endorsed these Agreements.
approach to the political situation in Kosovo from March 1998, were partly driven by
a sense of guilt stemming from the UNs failure to do more to prevent the Bosnian
conict. For example, British Foreign Secretary Robin Cook announced early in the
crisis that there should be no more Bosnias;58 while, as the situation deteriorated
in April 1998, US Secretary of State Madeleine Albright stated dramatically that,
we are on the road back to hell.59 On one level, the memory of Bosnia as a killing
eld is a fairly obvious motivating factor in the international approach to Kosovo
given that it represented a recent event in the same region, and one clearly marked
by international inaction. It seems, however, that the fall-out from Bosnia was sig-
nicant in another sense: namely in the legal context of Yugoslavias collapse and the
international approach to the emergence of new states; a process in which Kosovo
felt itself to be the real loser.
It is worth recalling the lead taken by the EC as Yugoslavia collapsed, and to
revisit briey the legal issues involved in particular, those surrounding the recog-
nition of new states.60 The Arbitration Commission established by the EC to adjudi-
cate on the legal implications of the Yugoslavia crisis of the early 1990s, with Robert
Badinter the President of the French Conseil Constitutionnel as chairman, declared
in its rst opinion that the SFRY was dissolving, thereby circumventing the di-
cult issue of secession.61 In light of the SFRYs collapse, the Arbitration Commission
turned its attention to the recognition of new states in a process which would see
Croatia, Slovenia, Bosnia-Herzegovina and Macedonia eventually emerge as inde-
pendent entities.62 What is interesting is that the EC, in the Guidelines it proposed
for recognition of new states, decided to include additional requirements which went
beyond the minimal standard for recognition of new states laid down in the Mon-
tevideo Convention of 1933. Article 1 of this Convention contains what is essentially
a value-neutral test of an aspiring new states viability; in short, this establishes a
duty on states not to recognise a new state unless it satises fundamental, but largely
pragmatic, requirements of statehood. In particular, the new state must be able to
demonstrate that it exercises governmental control of a clearly dened piece of terri-
tory with a clearly dened population; and hence that it has the capacity to enter into
relations with other states.63 The EC super-imposed upon the classical Montevideo
Convention test several additional criteria. For example, it required the republics
of Yugoslavia which were applying for recognition by EC member states to demon-
strate that they had a democratic mandate for independent statehood, and that they
had put in place constitutional guarantees for human rights, particularly minority
rights. Leaving to one side the question of whether recognition can be constitutive
of statehood or is in fact merely declaratory,64 as a matter of political reality, recogni-
tion by the EC had important consequences for the four republics mentioned, and
certainly hastened the process of UN membership for at least three of them. In a
sense it is also possible to view the approach taken by the EC to the recognition cri-
teria and its application as a form of intervention, since super-imposing criteria such
as democratic and human rights considerations upon the standard recognition prin-
ciples was a subtle way of directing the constitutional futures of the newly emerging
states.65 Another example of the way in which recognition was applied politically
came in respect of Macedonia where Greek concerns about the new state prevented
its full recognition for several years.
The Arbitration Commissions work remained fresh in the minds of Kosovar na-
tionalists who considered it to be unfair. Although the EC had marked new depar-
tures in recognition policy by declaring the protection of minority rights by new
states to be essential, it had also drawn a line in terms of the type of entity which
could seek statehood. Independence was only available to republics of the FRY (as
dened by the SFRY constitution of 1974) who met the recognition criteria. Apply-
ing the principle of uti possidetis juris which preserves existing boundaries, the EC
The nal status of the other two SFRY republics (Serbia and Montenegro) was not set-
tled as far as the EC was concerned until the Dayton Agreement in .
Montevideo Convention on the Rights and Duties of States of , League of Nations
Treaty Series , .
In other words the debate as to whether recognition by other states can actually create a
state or whether the question of a states existence is simply one of fact with recognition
serving only to evidence that fact.
Zoran Oklopcic, Populus Interruptus: Self-Determination, the Independence of Kos-
ovo, and the Vocabulary of Peoplehood, Leiden Journal of International Law ():
.
266 III. Kosovo and Self-Determination and Minority Rights
determined that for the purposes of its recognition policy, Yugoslavias internal re-
publican borders would be decisive.66 Kosovo, as an Autonomous Province of the
Republic of Serbia was not entitled to apply for statehood. On 15 June 1992 the EC
stated: frontiers can only be changed by peaceful means and [the EC states] remind
the inhabitants of Kosovo that their legitimate quest for autonomy should be dealt
with in the framework of the EC Peace Conference.67 As a consequence, Kosovo had
a right only of internal self-determination and its formal application for recognition,
delivered in a letter by Dr. Rugova, to the chairman of the peace conference con-
vened by the EC at the Hague, was not considered.68
Kosovos grievances were increased by the inconsistency of the Western approach
to Yugoslavias collapse. The Hague conference which met in September 1991, at the
very start of the crisis, had initially sought ways to preserve the state of Yugoslavia
intact, before in the end being forced to recognise that this was not possible.69 The
way in which the West had changed its approach in 1991 continued to fuel Kosovan
nationalist ambitions for recognition even though the West consistently ruled out
this possibility; as the Kosovars reasoned, if the Western powers had changed their
minds once they could do so again.70 This notion that Kosovos status remained to
be nalised was further encouraged in Kosovan minds by the Dayton Agreement,
where once again Western intervention in the former-Yugoslav lands continued. The
creation of two Bosnian entities was widely seen as a stop-gap measure which would
only prevent temporarily the incorporation of Serb and Croat regions of Bosnia and
Herzegovina within Serbia and Croatia respectively. Again, therefore, the fall-out
from Yugoslavias collapse seemed to be unnished, and Kosovars continued to hold
out hope for independence in part through the further intervention of the western
powers.71 Furthermore, the substance of the Dayton Agreement was in itself also a
source of grievance to Kosovar nationalists who felt that in reality it violated the uti
possidetis principle set out in the ECs recognition policy, particularly if the Bosnian
Serb entity would one day be permitted to join with the FRY. Whether or not this
was a realistic complaint, the wide autonomy accredited to the Republika Srpska sug-
gested that Bosnian Serb aggression had gained for them advantages which Kosovo,
despite its discrete constitutional identity under the old SFRY constitution, had not
received. As Tim Judah puts it: While they [Kosovo] had had an entity, which had
played its part as a federal unit in the old Yugoslavia, they were now without rights
while, in their view, the campaign of genocide led by Bosnian Serb leaders was being
rewarded.72 The nal insult was that the issue of Kosovos status was excluded from
the Dayton process; instead, the EC states recognised the FRY as a state despite the
process of constitutional centralisation carried out by Belgrade since the late 1980s,
and despite the fact that Kosovo languished within both the FRY and Serbia stripped
of constitutional autonomy (see below) a situation which seemed to contradict the
ECs commitment, enshrined in the 1991 Guidelines on recognition, to ensuring that
minority rights are guaranteed before recognition is accorded to new states. It is per-
haps not surprising that the IIC Report judged that Dayton, by giving, the FRY a free
hand in Kosovo, demoralised and weakened the non-violent movement in Kosovo,
and, led directly to a decisive surge of support among Kosovars for the path of vio-
lent resistance as the only realistic path to independence.73 It seems, therefore, that
the long intervention by the Western powers since the initial period of the SFRYs
dissolution had heightened expectations within Kosovo that international powers
would take a hand in securing constitutional protections for Kosovo; it was in this
context that Dayton proved to be such a disappointment for Kosovars, serving to
raise the stakes in their quest for autonomy.
Hungary and Albania. This distinction was important constitutionally, since, with
the status of nation came the constitutional right of self-determination;75 and, as
has been observed, so too would come recognition by the EC as the SFRY dissolved.76
The absence of republican status for Kosovo was, however, compensated for by
two factors in the 1974 constitution. First, as members of a nationality, Albanians
in Kosovo and elsewhere in the SFRY were protected by extensive rights guaran-
tees which also applied equally to Yugoslavias nations. Nationalities, for example,
enjoyed comprehensive language rights; discrimination on grounds of nationality,
race, and language was outlawed; and incitement to racial hatred and intolerance
were proscribed as unconstitutional. Secondly, Kosovo, as an Autonomous Prov-
ince of Serbia, enjoyed substantial executive, legislative and judicial autonomy; it
possessed its own constitution, and had legislative jurisdiction which extended to
defence and even foreign aairs. Although not a full republic, Kosovo also held a
seat in the Federal Parliament of the SFRY, together with a seat on the Constitutional
Court and on the Presidency.77
From the late 1980s onwards, a series of political and constitutional developments
took place within both the FRY and the Republic of Serbia by which much of the
autonomy Kosovo had enjoyed under the 1974 constitution was dismantled. Serbian
nationalism re-emerged as a force following the death of Tito in 1980, and central to
the Serbian idea of nationhood was Kosovo. It was the scene of the famous Turkish
defeat of the Serbian Army at the battle of Kosovo Polje in 1389, which was exploited
by Miloevi to emphasise the importance of Kosovo to Serbia; in a speech to a
rally in Belgrade on 19 November 1988, he declared: Every nation has a love which
eternally warms its heart. For Serbia it is Kosovo. That is why Kosovo will remain
in Serbia.78 Between 1989 and 1992, both Serbia and the SFRY embarked upon a
process of constitutional centralisation which terminated Kosovan autonomy, a pro-
cess which in turn led to the emergence of the strong separatist movement within
Kosovo.79 This process began in 1989 with constitutional changes, approved by the
Parliament of Serbia on 28 September, and eventually entrenched in the Constitu-
tion of the Republic of Serbia adopted in 1990. These changes required the approval
result in the referendum,89 the Kosovo Albanian leadership pressed on with its quest
for independence, holding presidential and parliamentary elections for the Republic
of Kosova on May 24, 1992 which resulted in the election of Ibrahim Rugova of the
LDK as President.90 This attempt by Kosovo Albanians to implement their unilateral
declaration of independence led rst, to a boycott by most Kosovo Albanians of both
Serbian and FRY elections, and secondly to the establishment of institutions by the
self-styled Republic, which now operated a separate system of public administration
running parallel to the Serbian system in a very elaborate process of civil disobedi-
ence.91 Following these developments, relations between Kosovo and both Serbian
and Federal authorities in Belgrade eectively broke down, leading ultimately by the
spring of 1998 to the armed conict which prompted the diplomatic initiatives of
this period.
It is important again to contextualise these constitutional upheavals, and the way
in which they presaged the military conict of the late 1990s, within the broader
theatre of the Wests involvement. The deterioration of relations between Belgrade
and Kosovo took place over a ten year period in which the international community
was elsewhere heavily involved in the detritus of Yugoslavias collapse. As such, those
international organisations which became involved from March 1998 onwards were
fully aware that the sense of injustice felt by Kosovo Albanians was a direct result
of both the constitutional centralisation practised by Belgrade since 1989 and the
disproportionate outcome of the Badinter process which had failed to oer Kosovo
any practical succour. Despite the lip-service oered to Kosovos right to internal
self-determination, it was clear that Belgrade, able to hide behind its territorial in-
tegrity, had in eect carte blanche to ignore the ECs plaintive demands for Kosovar
autonomy; Miloevi could rely upon the uti possidetis rule applied in 1991-2 which
did nothing to mitigate, and thereby could be seen tacitly to approve, Belgrades ear-
lier policy of constitutional centralisation.92
Therefore, in spite of its status as an Autonomous Province of the Republic of
Serbia under the 1974 Constitution, Kosovo was not eligible to apply to the Badinter
Commission for recognition; and for Kosovars, conscious of the autonomy they had
enjoyed under the 1974 Constitution, (which in their eyes accorded Kosovo de facto
republican status), and bearing in mind that Kosovo with a population which was
approximately 90 ethnic Albanian was the most ethnically homogeneous autono-
mous unit in the Federal Republic apart from Slovenia, it seemed particularly unjust
that Kosovo should be excluded from any possibility of statehood simply on account
of a formal distinction in the 1974 SFRY constitution between republics and autono-
mous provinces.93
This also brings us back to the question of self-determination. For Kumbaro who
saw in SC Res. 1160 and subsequent resolutions a recognition that Kosovars consti-
tuted a people with a right of internal self-determination, this constitutional process
constituted a denial of this right.94 From this she concludes that Kosovo Albanians
are entitled to invoke the saving clause of the General Assembly Declaration on
Friendly Relations which, she argues, recognises a right to external self-determi-
nation if a people is completely denied from (sic) meaningfully exerting the right
to self-determination internally.95 A similar argument is presented by the IIC in its
Follow Up Report of 2001 which reiterates the argument made in the Report of 2000
that Kosovo is entitled to conditional independence. This argument is based on, a
normative foundation: namely, the case for self-determination arises from the sys-
tematic abuse of the human rights of Kosovo Albanians over a long period and the
consequent withdrawal of the consent of the Kosovar Albanians to Serbian rule.96
It seems, therefore, that the Kosovo crisis highlights more than many other case
studies the inconsistencies and the lack of principle within application of the right of
self-determination as it has been applied since the end of the Second World War. As
critics have argued, when a viable, culturally dierentiated group is unable to escape
an oppressive state, particularly when other less homogeneous groups have been
able to do so due either to their successful use of force, or to an arbitrary application
of the uti possidetis principle by states exercising their power of recognition, then a
major question concerning the legitimacy of the principle of self-determination as
presently applied arises.
sponse to the Kosovo crisis involved a diplomatic eort not only to restore peace and
alleviate humanitarian problems, but also to bring about a detailed constitutional
settlement which would restore to Kosovo the extensive powers of self government
it had lost since 1989. It is dicult to conclude that considerations like those which
preoccupied the Independent Report were not also at work in motivating Western
governments as they made strenuous eorts to reach an autonomy solution for Koso-
vo. The international initiative begun in March 1998 became nothing less than an at-
tempt to impose an overall constitutional settlement which would restore Kosovos
autonomy to at least its pre-1990 position, and in doing so, perhaps undo some of the
injustice Kosovo felt with regard to the Badinter process and the unful lled assur-
ances of minority rights and internal self-determination which it had purported to
deliver. This is evident if we return to our account of events towards the end of 1998.
Although the aftermath of the October Agreements and of SC Res. 1203 initially saw
a stabilisation in the situation on the ground with a cautious welcome accorded to
it by both sides,97 things soon began to deteriorate and in particular, the November
dead-lines for electoral rules etc. were not met.98
From the beginning of 1999 ominous signs of a breakdown in the political process
began to appear; by the end of 1998 little progress had been made and by January
1999 Western patience was wearing thin particularly as occasional atrocities con-
tinued to be committed by the security forces.99 However, although the political
agreement brokered by Holbrooke fell apart, it would be wrong to say that there was
a sudden lurch towards humanitarian catastrophe; rather it was the failure of the
political deal hatched in October which seemed to set in motion the nal diplomatic
push for a solution to the crisis. NATO held an emergency meeting on January 17,100
which was followed by a Contact Group meeting of January 22, and a call to both
sides to come to peace talks soon followed. At a subsequent meeting on January 29,
the Contact Group summoned representatives from the FRY, Serbia and the Kosovo
Albanians to meet at Rambouillet by February 6, to begin negotiations with the
direct involvement of the Contact Group.101 This call, backed by a threat of NATO
military action,102 was again hedged in the language of humanitarian problems, with
the statement of 30 January issued by the NAC suggesting that NATOs strategy was
designed to avert a, humanitarian catastrophe.103 What is remarkable about this
nal attempt to broker a settlement is that, as talks got under way at Rambouillet in
France in February, both sides were presented with what amounted to a virtual fait
accompli: a detailed agreement, which included a fully detailed autonomy model for
Kosovo, and provision for an international peacekeeping force in the region, which
both sides were expected to accept. Furthermore, this was backed up by the threat
of force directed in particular at the FRY side. As a Washington spokesman put it:
If the Serbs fail to agree to the ... plan and the Kosovar Albanians do the Serbs
will be subject to air strikes.104 Tim Judahs laconic summation of the situation was:
both sides were being told: Sign or die.105After weeks of negotiation the Kosovo
Albanian side did indeed sign an agreement on 18 March and the FRYs refusal to
The OSCE reported that Chairman-in-Oce Norwegian Foreign Minister Knut Vol-
lebaek, telephoned President Miloevi on March and urged him to accept the Ram-
bouillet interim agreement and put an end to the excessive use of force by FRY and
Serbian forces in Kosovo. OSCE Press Release, Vienna, March .
Javier Solana, NATO Secretary-General announced the commencement of air opera-
tions against the FRY on March . NATO Press Release () , March . For
a discussion of the Rambouillet process and the agreement see Weller, note above.
The IIC Report notes the lack of veried data at this time, but still concludes, apart
from the shocking exception of the Recak/Racak [applying both Albanian and Serb
place names] massacre, it is reasonable to assume that the number of civilian killings
was signicantly lower than during earlier months. ICC Report, note above, .
Chapter , Article ().
Judah, note above, .
Chapter 8, Stephen Tierney The Long Intervention in Kosovo: a Self-Determination Imperative? 275
you dont agree to negotiate and accept Rambouillet as the basis of the negotiation.111
This leads Judah to conclude that the Wests motives were mixed: The humanitarian
catastrophe was a part of the reason but the other part was a modern-day version
of gun-boat diplomacy.112 Gun-boat diplomacy, it is submitted, which had as its pri-
mary aim an autonomy settlement for Kosovo.
4 Concluding Remarks
The Kosovo intervention suggests that the Badinter process has cast a long shadow
with its application of the uti possidetis principle and with recognition being ac-
corded exclusively to sub-state constitutional republics as Yugoslavia dissolved.113
This restriction has sown predictable seeds. The war in Bosnia was one, and the end-
less machinations over the nal status for Kosovo is another. As the international
community attempts to arrive at a nal status for Kosovo today the Badinter process
hangs over it. But this is not to suggest the issue is anything but complex. Even those
who advocate recognising Kosovo as an independent state are mindful of the need
to provide adequate protections for the minority rights of non-Albanians are guar-
anteed.114 But these critics of the EC approach to recognition and of its implications
for Kosovo have marshalled the principle of self-determination in forming their ar-
guments. Kumbaros contention that Kosovar Albanians as a people are entitled to
external self-determination given that the internal manifestation of this right has
been so egregiously denied by the FRY, has been noted above.115 Kumbaro nds the
legal basis for this assertion in the Declaration on Friendly Relations. A similar ap-
proach was taken by the IIC Report which makes no explicit reference to the UN
Ibid. .
Ibid. . What is also notable is that the Security Council seemed to support the Ram-
bouillet initiative; when the Contact Group issued its demand on January that
the parties meet at Rambouillet, this was supported by a Security Council Presidential
statement on the same day. UN Security Council Presidential Statement, January
. See Weller, note above, . The Contact Group statement of January had
also repeated the demands that the FRY comply with existing Security Council resolu-
tions.
For example, the contrasting fortunes of the self-condent, internationally-active, EU
Member State Slovenia and those of Kosovo remain today very stark.
Kumbaro, note above; IIC Report, note above. See also the House of Commons
Foreign Aairs Committee Report which states: Independence is out of the question
until the safety of Kosovos minorities can be guaranteed. (emphasis added), HC Foreign
Aairs Committee Fourth Report, March , para. ; and again: independence
should be ruled out until the other elements of UNSCR have been achieved in
particular a safe environment for all the people in Kosovo [i.e. Annex .]. (para.
). Ironically, this was the very same proviso attached to provisional recognition of
Croatia by Badinter Arbitration Commission, Opinion on the Recognition of the Re-
public of Croatia by the European Community and its Member States, Opinion No.,
International Legal Materials (): . See also Laponce, note above.
Kumbaro, note above, and .
276 III. Kosovo and Self-Determination and Minority Rights
IIC, note above, . This conclusion highlights a possibly emerging relationship be-
tween the recognition criteria applied in and the Friendly Relations Declaration.
If in terms of the criteria, a state should only be recognised if it respects human
rights (in particular, minority rights), this seems to bolster the arguments of those who,
in reading the Friendly Relations Declaration argue that it implies that a state might
forfeit its territorial integrity in respect of an internal people possessed of a right to
internal self-determination which it systematically denies them.
IIC, note above, -.
House of Commons Report, March , para. .
Thomas Francks nightmare world of states. Thomas Franck, The Empowered Self:
Law and Society in the Age of Individualism (Oxford: Oxford University Press, ),
chapter . Indeed the declaration of independence issued by Kosovo states; Observing
that Kosovo is a special case arising from Yugoslavias non-consensual breakup and is
not a precedent for any other situation .
IIC, note above, .
Ibid.
Chapter 8, Stephen Tierney The Long Intervention in Kosovo: a Self-Determination Imperative? 277
ment of intervention.122 This scenario begins to beg the question whether we might
see within international customary law the emergence of a limited right of seces-
sion perhaps along the lines advocated by Hurst Hannum who argues that: such a
right should be supported, but only under very narrow conditions. These conditions
might include situations where secession is the only plausible response to continu-
ing, massive, discriminatory human rights violations (arguably the case for Kurds in
Iraq and Turkey in the 1980s and Tibetans in China during the Cultural Revolution)
or where secession might be employed retroactively as a means of punishing egre-
gious violations of humanitarian law (as occurred in Kosovo).123 This idea of a right
emerging under this latter scenario, as a punitive device, seems unlikely given the
vehement opposition to Kosovos secession by a number of states124, and indeed high-
ly incommensurable with the existing principle of self-determination; in addition, it
would lead to an even greater politicisation of the law of self-determination than that
which already prevails. Instead, if a wider approach to the external application of the
self-determination principle is to emerge, the scenario oered by both Kumbaro and
the IIC would seem to oer the basis for a more principled way to proceed, and one
which more faithfully reects the spirit of the Friendly Relations Declaration.
Certainly the present position in Kosovo seems untenable as was recognised a
decade ago.125 The paradox today is that Western intervention was clearly motivated,
at least in part, by the removal of Kosovos autonomy by Belgrade, but that, with
Belgrades authority over Kosovo eectively ended, the United Nations Interim Ad-
ministration Mission in Kosovo (UNMIK) in eect performed the role of preserving
the FRYs technical territorial integrity in the face of a clear desire for independence
by Kosovar Albanians. The West, having struggled for so long to restore Kosovos
autonomy from the grip of constitutional centralisation, was left with the task of
trying to secure the FRYs territorial integrity in the face of de facto independence for
Kosovo on the ground; a position which ten years on is unsustainable.
Ultimately the reasons behind Western determination to secure autonomy for
Kosovo are complex. The most important factor seems to have been the history of
Yugoslavia over the past decade in which the West has been so heavily embroiled,
but this does not provide a complete answer. Another factor, and one with poten-
tially wider implications, is a growing sense, certainly within Europe, that national
minorities are entitled to better recognition of their rights as minorities, and per-
haps even to a right of autonomy. Various instruments have made a move in this
direction: for example, the CSCE Copenhagen Document of 1990;126 the Council
of Europe Framework Convention for the Protection of National Minorities 1995;
and the Lund Recommendations on Eective Participation by National Minorities
in Political Life, adopted in 1999.127 These initiatives which were being implemented
at the same time as Belgrade was consolidating its grip on Kosovo made the re-
moval of that provinces autonomy even more embarrassing for the European pow-
ers particularly as they were still smarting over their failures in Bosnia.128 It seems
therefore, that one of the long-term implications of the Kosovo intervention is the
consolidation of a growing European commitment to the rights of internal minori-
ties; in this context the nal solution to Kosovos status when it comes may bring
with a wider and more expansive approach, at least within Europe, to the right of
autonomy for national minorities.
GULARA GULIYEVA
1 Introduction
On 27 August 1991, the European Community (EC) established the Arbitration
Commission (known from the name of its chairman as the Badinter Commission)
to deal with the recognition of new states created as the result of dissolution of the
Socialist Federal Republic of Yugoslavia (SFRY or the former Yugoslavia). Although
not legally binding, the Badinter Commissions fteen Opinions1 have signicantly
inuenced state practice in matters such as minority rights, border change and state
secession and recognition. For example, the opinions were invoked in the contexts
of Northern Cyprus,2 Scotland,3 Quebec4 and South Africa.5 However, Kosovos Uni-
lateral Declaration of Independence in 2008 casts doubt as to whether the principles
established in the Commissions opinions remain valid, because they explicitly pre-
cluded unilateral secession of sub-state units and limited the exercise of the right to
self-determination of minorities to choice of identity. Moreover, it is the Kosovos
For interpretation of various opinions see Ruth Lapidoth, Autonomy: Potential and
Limitations, International Journal on Group Rights (): ; Dominic McGoldrick,
From Yugoslavia to Bosnia: Accommodating National Identity in National and Inter-
national Law, International Journal on Minority and Group Rights (): ; Martti
Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Prac-
tice, International and Comparative Law Quarterly (): .
Z. Nectagil, The Cyprus Question and the Turkish Position in International Law (Ox-
ford: Oxford University Press, ), -.
Catriona Drew, Independence through Devolution Scotland, Self-Determination and
the Badinter Paradox, Juridical Review (): -.
Thomas Franck et al., Territorial integrity of Quebec in the event of the attainment of
sovereignty, . Accessed September . http://www.tamilnation.org/selfdeter-
mination/countrystudies/quebec/quebec.htm; Peter Radan, The Borders of a Future
Independent Quebec: Does the Principle of Uti Possidetis Juris Apply? Australian Jour-
nal of International Law (): -.
John Dugard, Secession: Is the Case of Yugoslavia is a Precedent for Africa? African
Journal of International and Comparative Law (): -.
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 279-302.
280 III. Kosovo and Self-Determination and Minority Rights
ing on the EC.8 Subsequent reconstitution in January 1993,9 authorised the Badinter
Commission to issue opinions binding on the parties concerned.
Following Croatia and Slovenias declarations of independence in 1991, the EC
invited the six constituent republics of the SFRY, namely the Republics of Bosnia-
Herzegovina, Croatia, Macedonia, Montenegro, Slovenia and Serbia to apply for the
EC recognition by 23 December 1991. The Arbitration Commission was to consider
each of these applications. The formal mandate of the Badinter Commission was to
resolve dierences submitted by relevant authorities. Signicantly, the Declaration
on Yugoslavia failed to specify these authorities, and it was mainly Lord Carrington
who formulated questions and sought the Badinter Commissions opinion. The role
of the Badinter Commission in practice, however, was to provide legal justication
for the political decisions of the EC.10 In particular, by suggesting that only the re-
publics of the SFRY, and not autonomous units could apply for recognition, the EC
established that, former internal federal borders would become international bor-
ders upon the recognition of statehood of a seceding federal unit.11 The following
two sections briey outline the relevant principles as established by the Badinter
Commission in Opinions Nos. 1-3.
For example, the EC chose not to follow two of the Opinions of the Badinter Commis-
sion. Thus, the EC recognised Croatia before it ful lled conditions as outlined in the
Commissions opinion: Opinions on Questions Arising from the Dissolution of Yugosla-
via, January and July , International Legal Materials (): , (Opinion
No. ). Conversely, the EC deferred recognition of Macedonia while the Commission
decided that it met all the recognition criteria. Conference on Yugoslavia Arbitration
Commission Opinion No. on the Recognition of the Socialist Republic of Macedonia
by the European Community and its Member States, International Legal Materials
(): . In the case of Croatia, recognition was driven by Germany, whereas Mac-
edonia was not recognised due to the Greek objection to the use of Macedonia out of
fear that there could be territorial demands to Greece. See Carl Hodge, Botching the
Balkans: Germanys Recognition of Slovenia and Croatia, Ethics and International Af-
fairs ().
Reconstitution of the Arbitration Commission, and Rules of Procedure, January-
April , International Legal Materials (): -. For discussion see Pomer-
ance, note above, -.
Peter Radan, Post-Secession International Borders: A Critical Analysis of the Opinions
of the Badinter Arbitration Commission, Melbourne University Law Review ():
.
Ibid. .
EC, Declaration on Yugoslavia, UN Doc S/, Annex (); International Legal
Materials (): .
282 III. Kosovo and Self-Determination and Minority Rights
EC, Declaration on the Guidelines on the Recognition of New States in Eastern Europe
and in the Soviet Union, UN Doc S/, Annex (); International Legal Materi-
als (): .
For discussion of Croatia and Slovenias secession see Peter Radan, The Badinter Arbi-
tration Commission and the Partition of Yugoslavia, Nationalities Papers () ():
-.
Opinion No. of the Arbitration Commission of the Peace Conference on Yugoslavia,
November , International Legal Materials (): .
Radan, note above, .
Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , Inter-
national Legal Materials (): .
Peter Radan, Yugoslavias Internal Borders as International Borders: A Question of Ap-
propriateness, East European Quarterly : (): -.
Ibid. .
Radan, note above, ; Malcolm Shaw, Peoples, Territorialism and Boundaries, Eu-
ropean Journal of International Law (): .
Chapter 9, Gulara Guliyeva Kosovos Independence 283
national law. To conrm this nding the Commission selectively quoted an extract
from the case between Burkina Faso and Mali21 decided by the ICJ. In paragraph 20
of the judgment, the ICJ stated that:
[n]evertheless the principle is not a special rule which pertains solely to one specic sys-
tem of international law. It is a general principle, which is logically connected with the
phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose
is to prevent the independence and stability of new states being endangered by fratricidal
struggles ...22
What the Badinter Commission omitted to mention is the last part of the sentence
in which the ICJ explicitly referred to the decolonisation context of the case. As a
result, outside the decolonisation context (despite the oppressive regime they had
been under, the former republics of the SFRY did not t the denition of a colony),23
the Commission is the only authority which has relied on uti possidetis juris as a
general principle of law.
The application of the principle of uti possidetis juris as a general principle of
international law created a mixed reaction from commentators. The majority of au-
thors strongly criticised the Badinter Commission for the misapplication of inter-
national rules.24 In particular, Radan argued that the principle of uti possidetis juris
applied to border disputes which arose because it was not clear where the exact
colonial border passed. Thus, the principle had: nothing to do with situations where
borders were clear. The dispute was over a claim by one state to territory which
belonged to another.25 Besides, the principle does not preclude change of bound-
aries in the context of decolonisation.26 Accordingly, in the context of the former
Yugoslavia the principle did not apply because the issue was not the exact location of
borders, but rather whether the internal borders should be regarded as international
boundaries.27
changes to existing frontiers at the time of independence (uti possidetis juris) except
where the states concerned agree otherwise.32 Thus, eectively, the Badinter Com-
mission sealed the borders established as a result of the former Yugoslavias dissolu-
tion. If borders cannot be altered, then how can a group exercise the right to self-
determination? In balancing the right of states to territorial integrity and the right of
peoples to self-determination, the Badinter Commission reasoned as follows:
First, where there are one or more ethnic, religious or linguistic minority groups
in a state, they were to have the right to recognition of their identity under interna-
tional law. Moreover, the now peremptory norms of international law require
states to ensure respect for the rights of minorities. Consequently, the Serbian pop-
ulation in Bosnia-Herzegovina and Croatia was to be protected as a minority group
under national and international rules.33
Second, the principle of self-determination, enshrined in Articles 1 of the In-
ternational Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR), served to safeguard
human rights. Accordingly, by virtue of this right: every individual may choose to
belong to whatever ethnic, religious or language community he or she wishes. In the
Commissions view one possible consequence of the principle of self-determination
was for the members of the Serbian population in Bosnia-Herzegovina and Croatia
to be recognized under agreements between the Republics as having the nationality
of their choice, with all the rights and obligations which that entails with respect to
the states concerned.34
Both of these ndings had a mixed reception. Where minority rights are con-
cerned, the Badinter Commission expressed the view that their protection con-
stituted a peremptory norm of international law, i.e., a fundamental principle of
international law accepted by all states, which permits no derogation, such as the
prohibition of genocide or torture. Until 1992, however, the global minimum stan-
dard on the protection of minorities was article 27 of the ICCPR, which has a rather
vague wording and limited scope of protection. In fact, minority rights texts were
mainly developed in 1990-1995 and one of the impetuses for such development was
grave violation of minority rights in the former Yugoslavia. Even then there was a
general unwillingness of states to accord minorities extensive rights which would
radically deviate from general human rights norms.35 The eorts to elaborate specic
rules on minority rights culminated in the Framework Convention for the Protec-
tion of National Minorities (FCNM) the rst multilateral legally binding treaty on
the rights of minorities, which came into existence in 1995. Therefore, the Commis-
sions proposition that in January 1992 (when Opinion No. 2 was issued) minority
rights constituted a peremptory norm of international law was neither explained nor
supported by state practice.
As to the principle of self-determination, it appears that in the Commissions
view, the exercise of this right was limited to choice of identity or nationality. Before
we analyse this statement, let us rst briey overview the traditional approach to the
principle of self-determination. There is no denition of the term self-determina-
tion. The content of this principle, however, evolved signicantly since its inception.
Self-determination emerged as a political principle after World War I and during the
rst third of the twentieth century it, meant independence for states emerging from
fallen empires.36 After World War II, self-determination became a legal principle
enshrined in Articles 1(2) and 55 of the UN Charter as one of the cornerstones of
developing friendly relations between states. Furthermore, in the period of decolo-
nisation, it transformed into a legally binding right to be free from colonial domina-
tion.37 In the post-colonial context, self-determination evolved once again with an
increasing emphasis on the external and internal exercise of this right.
External self-determination empowers people to, choose their own sovereignty
and to be free from external coercion or alien domination, which might end up in
independence and creation of a sovereign state.38 Less-established, though increas-
ingly invoked, internal self-determination is the right to eective participation in
the political process within a state.39 Signicantly, outside of the colonial context,
the exercise of the right to external self-determination does not authorise a group
to secede automatically from a state, as that clashes with the principle of the territo-
rial integrity of states; rather, the realisation of such claims may take place through
autonomy and internal self-determination.40
Now let us turn to the principles established by the Badinter Commission. In
Opinion No. 2, the Commission armed that, while self-determination applied to
minorities, such as Serbs, it did not entitle them to claim statehood; instead, self-
determination in this context was reduced in content to human and minority rights,
[T]he notion of people is no longer homogeneous and should not be seen as encompass-
ing the whole population of any State. Instead of this, one must recognize that within one
State, various ethnic, religious or linguistic communities might exist. These communities
similarly would have, according to Opinion No. 2, the right to see their identity recognized
and to benet from all the human rights and fundamental freedoms recognized in inter-
national law, including, where appropriate, the right to choose their national identity.51
This approach has been, however, strongly criticised for adding, nothing to our un-
derstanding of the crucial distinction between minorities and peoples.52 Further-
more, by invoking various principles of international law without clear and con-
vincing reasoning, the Badinter Commission, only revived the fruitless search for
denitions of self, determination, peoples, and related terms that have never been
capable of providing reasoned criteria for international action.53
Empire, did Serbs manage to regain control over Kosovo in 1912, which led to the
oppression of Kosovo Albanians.
During World War I, Albania and Serbia supported opposing powers: the former
fought on the side of the Alliance,57 while the latter sided with the Entente.58 In 1915
Serbs were pushed out of Kosovo. However, by 1918 Serbs regained control over the
province and took their revenge on Albanian population. The oppression of Kosovo
Albanians was so strong that they sought to become independent. In 1921, Kosovo
Albanians requested the League of Nations approval to secede from the Kingdom
of Serbs, Croats and Slovenes (formed on 1 December 1918 and known as the King-
dom of Yugoslavia from 1929), because the government did not guarantee the rights
of Kosovo Albanians, out of whom 12000 had been killed and 22000 imprisoned
between the 1918 and 1921.59 Approval was not granted and the request resulted in
escalation of tension between the groups.
During World War II, history repeated itself: Kosovo was occupied by Albania
(and partly Nazi Germany) in 1941, with Slavs regaining control by 1944.60 Kosovo
was re-incorporated into the former Yugoslavia and the 1946 Constitution granted it
the status of a region. Both the 1953 law and the 1963 Constitution limited the scope
of Kosovos autonomy. This resulted in dissatisfaction of Kosovo Albanians with the
regime and prompted demands for secession in 1968.61 To remedy this situation, the
1974 Federal Constitution granted full autonomy to the province of Kosovo. The
status of the province resembled that of the six republics in the Yugoslav Federation,
lest for the right to secede from Yugoslavia.62
The dierence between republics and provinces was based on the doctrine of
nations and nationalities. This doctrine was used by the architects of the Yugoslav
federal system in 1943 as the basis for identifying groups entitled to have their own
republics. Thus, groups which did not have a homeland outside Yugoslavia were re-
garded as nations entitled to self-determination within a republic, while nationali-
ties, such as Kosovo Albanians, were groups which had an external kin-state; there-
fore, they could enjoy an autonomy regime only. Despite this distinction, Kosovo
was almost on an equal footing with the republics and had direct representation in
federal institutions, and its own constitution, parliament and judiciary.63
The major Alliance powers were Germany, Austria-Hungary, the Ottoman Empire, and
Bulgaria.
The key members of the Entente were the United Kingdom, France, the Russian Empire
and the USA.
Szolcsnyi, note above, .
Ibid.
Jure Vidmar, International Legal Responses to Kosovos Declaration of Independence,
Vanderbilt Journal of Transnational Law (): .
Szolcsnyi, note above, .
Andreas Zimmermann, Yugoslav Territory, United Nations Trusteeship or Sovereign
State? Reections on the Current and Future Legal Status of Kosovo, Nordic Journal of
International Law (): .
Chapter 9, Gulara Guliyeva Kosovos Independence 291
However, from the late 1980s, the Serbian authorities started systematically re-
stricting the autonomy of Kosovo. The 1988 Constitutional amendments precluded
Kosovo from exercising control over their, police force, their criminal and civil
courts, their civil defence and their economic and education policy.64 Furthermore,
the amendments signicantly limited the use of Albanian as an ocial language in
Kosovo. For these amendments to become eective, Kosovos Parliament had to ap-
prove them. To acquire such consent, Serbia deployed police forces and the federal
army, which surrounded the Kosovo parliament building until the parliament ac-
cepted the constitutional amendments on 23 March 1989.65
In response to the gradual abolition of autonomy, Kosovos Parliament exercised
an act of internal self-determination and declared the province an independent en-
tity within the Yugoslav Federation, equal to other republics. In response, the Ser-
bian authorities reacted by, dissolving both the Kosovo parliament and the ruling
government and by expelling 80,000 Kosovo Albanians from state employment.66
Control over Kosovo was entrusted to the Vice President of the Serbian Parliament.67
After Serbias abolition of Kosovos autonomy, members of the dissolved parlia-
ment drafted a constitution and held a secret referendum on the independence of
Kosovo in September 1991; not surprisingly, the majority of Kosovo Albanians sup-
ported the independence. Moreover, on 18 October 1991, Kosovo applied for EC rec-
ognition. However, Kosovos Declaration of Independence, as well as its request for
recognition, were largely ignored, because it did not have the status of a republic.68
On 24 May 1992, Kosovo held secret elections and established a parliament and a
president; because of the military presence of Serbia, newly-elected ocials and in-
stitutions failed to govern Kosovo. The 1992 Yugoslav Constitution made no refer-
ence to the formerly autonomous status of Kosovo.
In the second half of the 1990s, there were, uprisings of dierent local armed
groups under the banner of the Kosovo Liberation Army (KLA).69 KLA attacks
on both military and civilian targets in 1997 and 1998 led to intensied reaction
from the Yugoslav security forces.70 Hostilities were eventually brought to an end by
NATOs intervention. Moreover, in 1999, NATO forced Serbia to agree to grant self-
government to Kosovo. Under Resolution 124471 Yugoslavia was obliged to:
Ibid.
Ibid.
Ibid. .
Ibid.
Marc Weller, Contested Statehood: Kosovos Struggle for Independence (Oxford: Oxford
University Press, ), .
Enrico Milano, Security Council Action in the Balkans: Reviewing the Legality of Ko-
sovos Territorial Status, European Journal of International Law (): .
Ibid.
UN Security Council, Resolution (), UN Doc. S/RES/ ( June ).
292 III. Kosovo and Self-Determination and Minority Rights
[P]ut an immediate and veriable end to violence and repression in Kosovo, and begin and
complete veriable phased withdrawal from Kosovo of all military, police and paramili-
tary forces according to a rapid timetable, with which the deployment of the international
security presence in Kosovo will be synchronized.72
Ibid.
Milano, note above, -.
UN SC Res. (), note above, paras (a) and (e).
GA Res. /, UN Doc. A/RES// ( October ).
Judge Koroma, Dissenting Opinion, Accordance with International Law of the Unilat-
eral Declaration of Independence in Respect of Kosovo, ICJ para ( July).
Chapter 9, Gulara Guliyeva Kosovos Independence 293
without the latters consent. The Judge lamented that the ICJ did not built its argu-
ments on the Reference re Secession of Quebec,77 where the Supreme Court of Canada
ruled that outside of the colonial context, the right to self-determination should
be exercised within the framework of the existing state, except, possibly, where, a
people is denied any meaningful exercise of its right to self-determination within
the state of which it forms a part.78 Judge Koroma insisted that the ICJ should have
completed this picture by ruling that international law does not grant minorities an
explicit or implicit right to secede unilaterally from a State.79 Overall, in his view, the
ICJs, Opinion will serve as a guide and instruction manual for secessionist groups
the world over, and the stability of international law will be severely undermined.80
The dissenting judges criticism suggests that, the Advisory Opinion invalidated
the Badinter Commissions Opinions by establishing that a minority group may ex-
ternally self-determine. Let us consider the implications of the ICJs Advisory Opin-
ion more closely. In dealing with the legality of Kosovos secession, the ICJ focused
on assessing whether or not the Declaration of Independence was in accordance
with international law.81 This emphasis allowed the Court to exclude explicitly mat-
ters relevant to the external self-determination of minorities, such as the assessment
of the legal consequences of the Declaration, whether or not Kosovo had achieved
statehood, and the validity or legal eects of the recognition of Kosovo by those
states which had recognised it as an independent state.82 The ICJ also dierentiated
the question of the Advisory Opinion from that in the Reference re Secession of Que-
bec, where the Supreme Court of Canada was asked whether, under international
law, Quebec had the right to self-determine and unilaterally secede from Canada.83
The ICJ argued that it was not required:
[T]o take a position on whether international law conferred a positive entitlement on Ko-
sovo unilaterally to declare its independence or, a fortiori, on whether international law
generally confers an entitlement on entities situated within a State unilaterally to break
away from it.84
Nor did the Court consider it necessary to engage in debates regarding the extent of
the right of self-determination and the existence of any right of remedial secession,85
because they concern the right to separate from a state.86 In the ICJs view, to answer
the question posed by the General Assembly, all it needed is to determine whether
or not the applicable international law prohibited the declaration of independence.87
Focusing on this limited remit, the ICJ considered the lawfulness of the Declaration
of Independence under general international law and Security Council Resolution
1244. The following two sub-sections assess the ICJs reasoning.
national territorial administration in Kosovo, with the eect of superseding the legal
order in force at the time. Accordingly, resolution 1244 was an exceptional measure
established to address the crisis in the territory in 1999 through civil, political and
security presence.92 Secondly, designed for humanitarian purposes, the resolution
placed emphasis on the so-called four pillars relating to the governance of Kosovo,
namely, interim civil administration, humanitarian aairs, institution building and
reconstruction. This legal regime aimed to suspend Serbias exercise of its authority
based on continuing sovereignty over the territory of Kosovo and to support the de-
velopment of local institutions of self-government in Kosovo. Th irdly, the resolution
established only an interim regime, with no permanent institutional framework.
Based on these considerations, the ICJ concluded that Resolution 1244 aimed to es-
tablish a temporary, exceptional legal regime to stabilise Kosovo which superseded
the Serbian legal order, save to the extent that it was expressly preserved.93
Having established the object and purpose of Resolution 1244, the ICJ turned to
assess whether this instrument introduced a specic prohibition on the adoption of
a declaration of independence. In this regard, the ICJ observed that the resolution
aimed to create only an interim administration and was silent on the nal status
of Kosovo or any conditions for its achievement. Therefore, the instrument did not
preclude the adoption of the declaration of independence. Even the reference to po-
litical settlement94 in the resolution did not aect this conclusion, because the term
was ambiguous and could be subject to various interpretations. Consequently, the
Declaration of Independence did not violate Resolution 1244. The ICJ concluded that
Kosovos Declaration of Independence did not violate any applicable rule of interna-
tional law.
Ibid. .
Ibid. .
SC Res. (), UN Doc. S/RES/ ( June ), para. (c).
For criticism see of Vice-President Tomka, Declaration, Kosovo Opinion, para. ; Judge
Simma, Declaration, ibid. para. ; Judge Yusuf, Separate Opinion, ibid. para. . See also,
296 III. Kosovo and Self-Determination and Minority Rights
In particular, by narrowing the scope of the question, the ICJ omitted the dis-
cussion of the principles established by the Badinter Commission. As discussed
in parts one and two of this chapter, the Badinter Commissions interpretation of
uti possidetis juris and self-determination prevented Kosovo from becoming inde-
pendent during the dissolution of the former Yugoslavia. Unlike the Court, several
states relied on these principles in their written submissions. For example, Romania,
Argentina and Cyprus argued that Kosovos Declaration of Independence contra-
vened the principle of inviolability of borders. In their view, pursuant to the Badinter
Commissions opinions, the boundaries of the federal States within the SFRY were
transformed into the international frontiers; these could be changed only by agree-
ment between the parties involved and without the use of force.96 Conversely, the
Netherlands and Denmark submitted that Kosovos Declaration of Independence
did respect the principle of uti possidetis juris as established by the Badinter Com-
mission in its Opinion No. 2, because its international frontiers followed existing
internal boundaries.97
The ICJ did not engage in these debates by drawing an articial distinction be-
tween declaring and eecting independence.98 The distinction is not convincing
because in practice declaration of independence is an essential legal and factual ele-
ment of the process of eecting statehood.99 Arguably, the real issue was whether
Kosovos remedial secession from Serbia was lawful.100 The right to remedial se-
cession is described as a last-ditch response to discrimination or oppression by a
central government.101 Pursuant to the doctrine of remedial secession, a group may
have a valid claim to territory if a) as a previous sovereign it reclaims territory which
was unjustly taken from it; b) it has been subjected to serious and persistent viola-
tion of human rights, including a states major violations of, or unilateral revocation
of autonomy arrangements.102 Even though no primary right to secede exists, point
Elena Cirkovic, An Analysis of the ICJ Advisory Opinion on Kosovos Unilateral Decla-
ration of Independence, German Law Journal : (): -, .
Written Statement of Romania, April , paras. and ; Written Statement of
Argentina, April , para. ; Written Statement of the Republic of Cyprus, April
, paras. and .
Written Statement of the Kingdom of the Netherlands, April , para. .; Written
Statement of Denmark, April , -.
Robert Muharremi, A Note on the ICJ Advisory Opinion on Kosovo, German Law
Journal : (): -, .
Ibid. . For further criticism, see Robert Howse and Ruti Teitel, Delphic Dictum:
How Has the ICJ Contributed to the Global Rule of Law by its Ruling on Kosovo? Ger-
man Law Journal : (): -, .
Thomas Burri, The Kosovo Opinion and Secession: The Sounds of Silence and Missing
Links, German Law Journal : (): -, .
Donald Horowitz, The Cracked Foundations of the Right to Secede, Journal of Democ-
racy : (): ; Hilpold, note above, .
Secession, Stanford Encyclopedia of Philosophy. Accessed September . http://
plato.stanford.edu/entries/secession.
Chapter 9, Gulara Guliyeva Kosovos Independence 297
seems to implicitly suggest a link between territorial integrity and the existence of a gov-
ernment representing the whole people belonging to the territory without distinction as
to race, creed or colour in which that compliance is expected to result.109
Signicantly, Remedial Right Only theories provide a moral justication for secession.
Michel Seymour, Secession as a Remedial Right, Inquiry : (): .
Zimmermann, note above, .
Reference re. Secession of Quebec, note above, .
See note above.
Reference re. Secession of Quebec, note above, .
See note above.
Gaetano Pentassuglia, State Sovereignty, Minorities and Self-Determination: A Com-
prehensive Legal View, International Journal on Minority and Group Rights ():
.
Thomas Franck, Post-Modern Tribalism and the Right to Secession, in Peoples and
Minorities in International Law, eds. C. Brolmann, R. Lefeber and M. Zieck (Dordrecht:
Martinus Nijho, ), -; Zimmermann, note above, ; Geo Gilbert, Au-
tonomy and Minority Groups: A Right in International Law? Cornell International
Law Journal (): -; Jane Wright, Minority Groups, Autonomy, and Self-
Determination, Oxford Journal of Legal Studies (): .
Colin Warbrick, Kosovo: the Declaration of Independence, International and Com-
parative Law Quarterly (): .
298 III. Kosovo and Self-Determination and Minority Rights
The argument that Kosovo exercised the right to remedial secession has some
weaknesses, however. For example, it is unlikely for either a domestic case or, as
Shaw argued, an ambiguous subordinate clause in the non-legally binding Declara-
tion on Friendly Relations to prevail over the territorial integrity of states, a core
principle of international law.112 Thus, despite the fact that the government com-
mitted grave violations of Kosovo Albanians human rights, the international com-
munity endorsed the territorial integrity of the FRY.113 Furthermore, due to the fact
that under pressure from the international community Serbia restored Kosovos au-
tonomy, the Declaration of Independence in 2008 could hardly be regarded as, a
last resort for preventing oppression.114 In this regard, some commentators argued
that Kosovos right to remedial secession was the result of years of oppression, i.e.,
exercised with a signicant delay.115 Even though this argument may be convincing
in the light of Kosovos history, basing remedial secession on historical abuse which
no longer exists, leaves it unclear how far in history could the claim of abuse go?116 In
its written statement, the Netherlands suggested that the time factor did not under-
mine the right of Kosovo to external self-determination, because it has been used,
to satisfy the procedural condition for the exercise of the right to external self-de-
termination, namely the exhaustion of all eective remedies to achieve a settlement
on the status of Kosovo.117 Therefore, a delayed exercise of remedial secession could
be possible, if the time was spent on negotiations or recourse to relevant interna-
tional organisations.
Regrettably, the ICJ refused to discuss remedial secession, possibly because there
is little state practice supporting this doctrine, with the notable exception of the
creation of Bangladesh. Nor did the Court consider two signicant factors relevant
to the assessment of the success of secession: state conduct and recognition. These
criteria were conrmed by the Supreme Court of Canada in Re Secession of Quebec,
where it noted that although there is no right under the Canadian Constitution or
international law to unilateral secession:
Thus, one consideration in assessing Kosovos secession could be the conduct of the
state in ensuring meaningful exercise of autonomy, including respect for the groups
human and minority rights. Based on such assessment, states granting recognition
to a new entity could take into consideration the legality and legitimacy of secession.
Where state conduct is concerned, as the above discussion in part two high-
lighted, the former Yugoslavia had violently abolished Kosovos autonomy. Further-
more, the state grossly violated fundamental rights of Kosovo Albanians. Although
the restoration of autonomy seven years after Serbia agreed to grant autonomy to
Kosovo was an important development, the Serbian Constitution contained provi-
sions which could signicantly curtail the enjoyment of these guarantees in practice.
This view was conrmed by theEuropean Commission for Democracy through Law
(Venice Commission) in its Opinion on the Constitution of Serbia.119 Thus, Article
12 in Part I on Constitutional principles stipulated provincial autonomy and local
self-government. However, it did so in an ambiguous way:
[O]n the one hand, in the rst paragraph it provide[d] that state power is limited by the
right of citizens to provincial autonomy and local self-government, yet on the other hand
it state[d] that the right of citizens to provincial autonomy and local self-government shall
be subject to supervision of constitutionality and legality. Hence it is clear that ordinary
law can restrict the autonomy of the Provinces.120
Even though these limitations did not amount to grave violation of human rights,
taking into consideration that Kosovos autonomy had been already revoked, as well
as irreconcilable dierences between the majority and the minority, it could be pos-
sible to argue that in restoring Kosovos autonomy Serbia did not act in good faith.
Therefore, Kosovos unilateral act of external self-determination could still be re-
garded as a right of a people who were not allowed a meaningful self-government
within its state. As mentioned above, states recognising Kosovos independence
could take this state conduct into account.
This deep division within international community was also evident in the decision of
the UN General Assembly to refer the matter of legality of Kosovos secession to the
ICJ. Thus, States voted for Serbias initiative to ask for an advisory opinion of the ICJ;
countries abstained, and only voted against. Backing Request by Serbia, General
Assembly Decides to Seek International Court of Justice Ruling on Legality of Kosovos
Independence, October . Accessed October . http://www.un.org.ezproxye.
bham.ac.uk/News/Press/docs//ga.doc.htm. See also, Security Council Press
Release, UN SCOR, th meeting, UN Doc. S/, August . Accessed
October . http://www.un.org/News/Press/docs//sc.doc.htm.
In particular, some commentators argued that, because Kosovo unilaterally changed
the UN status regime, the obligation of non-recognition existed under Resolution .
For discussion see Vidmar, note above, ; Hilpold, note above, .
Helen Quane, Self-determination and Minority Protection after Kosovo, The Kosovo
Precedent: Implications for Statehood, Self-determination and Minority Rights, Con-
ference at Lancaster University, March , .
Ibid.
The Netherlands Written Statement, note above, paras. .-.; Written Statement
of the Federal Republic of Germany, April , .
Chapter 9, Gulara Guliyeva Kosovos Independence 301
rightly criticised the ICJ for its failure to, dene the scope and normative content
of the post-colonial right of self-determination, thereby contributing, inter alia, to
the prevention of the misuse of this important right by groups promoting ethnic and
tribal divisions within existing States.126 The Judge maintained that the ICJs assess-
ment of the existence of a minority groups entitlement to self-determine could have
brought clarity to the scope and legal content of this right. Overall, it is regrettable
that the ICJ missed a, unique opportunity to assess, in a specic and concrete situa-
tion, the legal conditions to be met for such a right of self-determination to material-
ize and give legitimacy to a claim of separation.127
ing their right to self-determination. In assessing Kosovos secession, the ICJ could
usefully focus on state conduct, legitimacy and legality of secession. Where state
conduct was concerned, the abolition of autonomy and gross violation of human
rights by the state could support the claim that Kosovo exercised delayed remedial
secession. Even the restoration of the provinces autonomous status did not bridge
this gap, because Serbias latest constitution contained some provisions capable of
limiting Kosovos autonomy in practice. As to legitimacy of Kosovos independence,
it could be based on Resolution 1244, while its legality could be judged on the basis
of substantive and procedural requirements. These criteria could prevent secession-
ist trends in other states, conrm Kosovos statehood, and crystallise the norms of
minority protection, including the right to internal (and in exceptional situations
external) self-determination.
In conclusion, even though conned to the framework of the FRY, the principles
established by the Badinter Commission have had some inuence outside of the
former Yugoslavia. Regrettably, the ICJs advisory opinion did not have signicant
impact on the Badinter Commissions restrictive reading of the principles uti pos-
sidetis juris and self-determination. Although retrospective re-interpretation of the
Badinter Commissions opinions is unlikely to inuence state practice, critical ap-
plication of these principles is highly desirable.
Chapter 10 The Kosovo Question and Uti Possidetis:
The Potential for a Negotiated Settlement
1 Introduction
The issue of Kosovos status in international law remains an enduring problem for
the international community. Its mixed reaction to Kosovos 2008 Declaration of
Independence and tensions within the doctrines of self-determination, recognition
and statehood appear to have rendered the Kosovo Question intractable. In cases of
secession the consent (or at least the acquiescence) of the parent State is invariably
required for the edgling entity to become a full participant in the inter-State system
(irrespective of satisfying the criteria for the creation of States in international law).1
Serbia shows no signs of recognising Kosovo and it is highly unlikely that Russia will
allow Kosovo to become a UN member, which is often seen as the birth certicate
of new States. It is unlikely that the impasse will be resolved by the ICJs Advisory
Opinion.2 In these circumstances, another means of breaking the deadlock must be
found otherwise this state of aairs will have a negative impact on the development
of both countries and will ensure that regional peace and security remains fragile.3
This chapter asks whether there are principles of international law that are not
currently being considered that could assist with the resolution of the ongoing dis-
pute between Kosovo and Serbia over Kosovos claim to statehood. To this end, it
examines the Kosovo Question through the lens of the ongoing ethnic tensions
* The authors would like to thank the late Professor Kaiyan Homi Kaikobad for his assist-
ance in the preparation of this chapter and Dr. James Summers for his comments on
draft versions of the chapter. All errors remain those of the authors.
See James Crawford, State Practice and International Law in relation to Secession,
British Yearbook of International Law (): .
See International Court of Justice: Accordance with International Law of the Unilat-
eral Declaration of Independence by the Provisional Institutions of Self-Government
of Kosovo (Advisory Opinion). Accessed August . http://www.icj-cij.org/docket/
index.php?p=&p=&code=kos&case=&k=.
It is apparent that the successor States are beginning to develop closer commercial and
social ties, see Entering the Yugosphere, The Economist, August , .
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 303-342.
304 III. Kosovo and Self-Determination and Minority Rights
between the Kosovo Albanians and the Kosovo Serbs in those areas of Northern
Kosovo where the latter group predominates. These tensions have resulted in a
governance problem for the Pristina administration which could provide a context
for discussions between the parties. Against this background, this essay considers
whether the principle of uti possidetis could oer a legal criterion to inform a process
of negotiation to break the current deadlock, which might contribute to the resolu-
tion of the Kosovo Question.
To address this possibility, this essay initially sets out the governance problem in
Northern Kosovo by undertaking a factual examination of some of the diculties
experienced in this region and how these issues might permit discussions between
Kosovo and Serbia. Consideration is then given to the principle of uti possidetis, in-
cluding its previous application in the dissolution of Yugoslavia. The essay then turns
more specically to the position of Kosovo during the time of the dissolution of
Yugoslavia and examines why uti possidetis was not considered in relation to Kosovo
at this time. It then is argued that, in the current circumstances, the presumptive na-
ture of uti possidetis could provide a starting point for Kosovo and Serbia to resolve
their dierences. To determine whether this is feasible, the application of uti possi-
detis in various contexts is discussed to see if the principles traditional presumptive
nature has been retained, or whether practice has rendered it to be prescriptive in
nature. The essay then sets out the principles that could be utilised in the application
of uti possidetis to the Kosovo/Serbia boundary before concluding as to the role that
uti possidetis might play in the resolution of this long standing problem.
a Political Processes
The lack of co-operation by Kosovo Serbs in the political process has meant that
Kosovo has not been able to conduct eective elections in the municipalities of Zu-
bin Potok, Mitrovica, Leposaviq and Zvean. The predominant Kosovo Serb popula-
tion in these municipalities boycotted the Kosovo organised November 2007 munic-
ipal elections;11 preferring instead to participate in the Serbian organised municipal
elections in May 2008.12 The result of the alternative elections was the establishment
of municipal bodies in accordance with the Serbian legislative framework.13 In some
instances, where small populations of Kosovo Albanians did vote in the Kosovo mu-
nicipal elections, parallel Kosovo-run municipal structures were established under
OSCE Mission in Kosovo, Pro le of Zubin Potok, OSCE. Accessed March . http://
www.osce.org/kosovo/.html; OSCE Mission in Kosovo, Pro le of Leposaviq,
OSCE. Accessed March . http://www.osce.org/kosovo/.html; and OSCE
Mission in Kosovo, Pro le of Zvean, OSCE. Accessed March . http://www.
osce.org/kosovo/.html.
Ibid. Pro le of Zubin Potok; ibid. Pro le of Leposaviq; ibid. Pro le of Zvean.
Secretary-General of the United Nations, Report of the Secretary-General on the Unit-
ed Nations Interim Administration Mission in Kosovo, September , UN Doc.
S// ( September ), .
Secretary-General of the United Nations, Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, January , UN Doc.
S// ( January ), .
Ibid.
Secretary-General of the United Nations, Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, June , UN Doc.
S// ( June ), ; Secretary-General of the United Nations, Report of the
Secretary-General on the United Nations Interim Administration Mission in Kosovo,
March , UN Doc. S// ( March ), .
See note above, .
See note above, Pro le of Zubin Potok; note above, Pro le of Leposaviq; note
above, Pro le of Zvean; and OSCE Mission in Kosovo, Pro le of Mitrovica, OSCE.
Accessed March . http://www.osce.org/kosovo/.html.
Ibid. Pro le of Zubin Potok; ibid. Pro le of Leposaviq; ibid. Pro le of Zvean; and
ibid. Pro le of Mitrovica.
Ibid. Pro le of Zubin Potok; ibid. Pro le of Zvean; and ibid. Pro le of Mitrovica.
306 III. Kosovo and Self-Determination and Minority Rights
the Kosovo legislative framework. This was most pronounced in Mitrovica where
Serbian run municipal bodies operate north of the Ibar River and Kosovo run mu-
nicipal bodies operate to the South of the Ibar River,14 representing the geographical
division of the ethnic groups. So as to try and unify these parallel bodies, UNMIK
exercised its administrative authority over Northern Mitrovica, eectively prevent-
ing the Kosovo-run municipal body from having any jurisdiction in this region.15
The government of Kosovo conducted further municipal elections on 15 Novem-
ber 2009.16 Prior to the elections, Belgrade refuted the validity of the Kosovo run
elections based on the lack of a conducive environment for Kosovo Serbs to vote and
the lack of support for Kosovo run elections in the mandate set out in UN Security
Council Resolution 1244(1999).17 Calls were made by Serbia for Kosovo Serbs to boy-
cott the election so as to not give grounds for the recognition of Kosovos indepen-
dence from Serbia.18 Kosovo Serbs in northern Mitrovica, Zubin Potok, Leposaviq
and Zvean did not participate in the Kosovo run elections.19
Serbia organised by-elections in Leposaviq on 29 November 200920 following the
disbanding of the Serbian run municipal assembly on 9 July 2009. This was con-
sidered necessary due to elected members changing political aliation from the
Serbian Radical Party to the newly formed Serbian Progressive Party after the as-
semblys formation.21 The Kosovo administration does not recognise the results of
these elections.22
The Kosovo administration intends to create two new municipalities in North-
ern Kosovo, Partesh and North Mitrovica, with elections scheduled in Partesh for
June 2010.23 Belgrade organised elections in late May in Northern Mitrovica which
resulted in clashes between Kosovo Albanians and Kosovo Serbs.24
b Education
The result of concurrent political processes in Northern Kosovo has meant that
Kosovo and Serbian political institutions operate in parallel. The creation of par-
allel institutions is also mirrored in other sectors, such as education.25 In March
2006, the Serbian Governments Coordination Centre for Kosovo directed teachers
to renounce Kosovo government salaries.26 This directive resulted in schools being
aligned along ethnic groupings. Kosovo Serb schools with Kosovo Serb pupils follow
the Kosovo Serb curriculum according to Serbian law27 and teachers are paid by the
Serbian Ministry of Education.28 Kosovo Albanian schools with Kosovo Albanian
students (such as in Kosovo Albanian villages in Zubin Potok) follow the Kosovo
curriculum in accordance with Kosovo law and sta are paid by the Kosovo admin-
istration.29
In the tertiary education system, Leposaviq and Mitrovica both house faculties of
the university in Mitrovica30 which follows a Serbian curriculum.31 Leposaviq houses
two faculties (pedagogical and physical) and an economics college.32 A further four
faculties of the university (technology, mining, metallurgy and geology) are located
in southern Mitrovica with the remaining 12 faculties being located in northern Mi-
trovica.33 The use of the Serbian curriculum in Kosovo undermines the eectiveness
of the Pristina administration in relation to the tertiary education sector.
c Health Care
The establishment of parallel systems has also had an impact on the health care
sector. Generally, health care systems in Kosovo are considered to be of a poor stan-
dard.34 This is in part due to a lack of infrastructure and medical equipment and
supplies.35 The situation in Northern Kosovo evidences these problems36 which are
See note above, Pro le of Zubin Potok; note above, Pro le of Leposaviq; note
above, Pro le of Zvean; note above, Pro le of Mitrovica; and Commission of
the European Communities, Kosovo under UNSCR / Progress Report,
October , SEC () , .
Ibid. Pro le of Leposaviq; and ibid. Pro le of Zvean.
See note above, Kosovo under UNSCR / Progress Report, .
See note above, Pro le of Zubin Potok; note above, Pro le of Leposaviq; note
above, Pro le of Zvean; and note above, Prole of Mitrovica.
Ibid. Pro le of Zubin Potok.
See note , Pro le of Leposaviq; and note above, Prole of Mitrovica.
Ibid. Pro le of Leposaviq.
Ibid.
See note above, Pro le of Mitrovica.
See note above, Kosovo Under UNSCR / Progress Report, .
Ibid.
See note above, Pro le of Zubin Potok; and note above, Pro le of Leposaviq.
308 III. Kosovo and Self-Determination and Minority Rights
arguably exacerbated by the operation of parallel health care systems. This is dem-
onstrated by the situation in Mitrovica.
The health centre in Southern Mitrovica provides limited health services and acts
as a hub for other health centres in the region including health care units in other
Northern Kosovo municipalities.37 In Northern Mitrovica, Serbian authorities run
an independent hospital and health centre.38 This hospital acts as the main health
centre for the Kosovo Serb community throughout Kosovo.39 Ethnic tensions mean
that Kosovo Serbs resident in Zubin Potok, who attend the hospital in Northern
Mitrovica, use an alternative route to access the hospital so as to avoid travelling
through Kosovo Albanian villages.40 This approach to health care curtails its eec-
tiveness given the limited resources available.
United Nations Interim Administration Mission in Kosovo, Press Brieng Notes, UN-
MIK, February . Accessed February ). http://ocha-gwapps.unog.ch/rw/
RWFiles.nsf/FilesByRWDocUnidFilename/EGUA-CSY-full_report.pdf/File/
full_report.pdf.
Foreign and Commonwealth Oce, Travel Advice Kosovo, FCO. Accessed Feb-
ruary . http://www.fco.gov.uk/en/travel-and-living-abroad/travel-advice-by-coun-
try/europe/kosovo.
See note above, Kosovo Under UNSCR / Progress Report, .
See note above, March Report, .
Ibid.
See note above, June Report, .
Ibid.
Ibid.
See note above, .
Ibid. and note above, .
Ibid. September Report.
See note above, March Report, .
See note above, .
Chapter 10, S. Allen and E. Guntrip The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement 311
people entering the checkpoints.75 Infrastructure at customs Gates 1 and 31 has been
re-established.76
Despite the progress made, in late 2009, Kosovos borders were not fully secured,
with the north being identied as a particular problem.77 The lack of customs opera-
tions in this area has been identied as hindering the ght against organised crime.78
Restoration of full customs operations in the Northern Kosovo municipalities is sub-
ject to agreement between Kosovo and Serbia regarding the collection of customs
and the distribution of revenues.79
e Basic Utilities
In addition to these social services, basic utilities such as electricity have also proved
dicult to establish and run protably, particularly so in the municipalities of Zubin
Potok and Leposaviq.80 The electricity supply is not constantly maintained81 due to a
series of disconnections by the Kosovo Energy Corporation on the grounds of non-
payment of bills.82
The majority Kosovo Serb population protested against the disconnections on
the basis that they were discriminatory on ethnic grounds.83 A study undertaken by
the OSCE did not nd any grounds to support the claim of ethnic discrimination.84
Payment arrangements in the form of collective agreements were oered to Kosovo
Serbs85 and electricity supplies were reconnected for those villages that agreed.86 The
collective agreements require regular payments for electricity based on consump-
tion and freeze accumulated debts owed to the Kosovo Energy Corporation.87
The Kosovo Energy Corporation oered payment arrangements to many villages,
who reluctantly signed in order to have an electricity supply.88 However, further dis-
connections were made by the Kosovo Energy Corporation in August 2009 follow-
ing the non-payment of bills.89 Reconnection of the electricity supply occurred after
residents signed contracts and made lump sum payments.90
The Kosovo Energy Corporation network continues to disconnect the electricity
supply to the northern Kosovo municipalities.91 OSCE and UNMIK have been at-
tempting to resolve the dispute between the Kosovo Energy Corporation and many
of the residents in northern Kosovo.92 Belgrade has advised Kosovo Serbs to enter
into contracts with the Kosovo Energy Corporation for the supply of electricity.93
However, some Kosovo Serbs refuse to enter into agreements with the Kosovo En-
ergy Corporation on the basis that it would imply recognition of Kosovos indepen-
dence.94 The Electric Power Industry of Serbia provided electricity during shortages
of power,95 however, this contributed to instability in the region due to the potential
implications for Kosovos independence.96 Consultations are continuing in an at-
tempt to resolve this matter.97 In the meantime, the Electric Power Industry of Ser-
bia has taken over electricity supplies in Northern Kosovo and is issuing bills to its
customers.98
f Basic Infrastructure
In addition to a lack of utilities, basic infrastructure in northern Kosovo is generally
in poor condition.99 Some larger roads, such as the Adriatic Highway are in good
condition, but local roads are in need of repair.100 Some progress is being made in
relation to the road transport system, however, the internal management within the
Department of Road Infrastructure needs to be addressed together with its capac-
ity101 before further progress can be made.
Ibid.
Ibid.
See note above, .
See note above, .
Ibid. and note above, June Report, .
Ibid. June Report.
In September , Leposaviqs electricity supply was provided by Serbia and in Zubin
Potok Serbia reinforces the power supply. See note above, Pro le of Zubin Potok; and
note above, Pro le of Leposaviq).
See note above, .
Ibid. and note above, .
Ibid. April Report.
See note above, Pro le of Zubin Potok; note above, Pro le of Leposaviq; note
above, Pro le of Zvean.
Ibid. Pro le of Zubin Potok.
See note above, Kosovo under UNSCR / Progress Report, .
Chapter 10, S. Allen and E. Guntrip The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement 313
g Identity Documentation
The Kosovo administration has attempted to implement policies to demonstrate its
ability to govern. For example, Kosovo authorities do not recognise birth certicates
issued by Serbia prior to June 1999.102 Consequently, Kosovo Serbs are applying for
Kosovo identity documents and drivers licences103 to facilitate their daily lives in
Kosovo.104 This reaction by Kosovo Serbs could also be in response to the Kosovo ad-
ministrations policy of seizing drivers licences and vehicle registration documents
issued for Kosovo by the Serbian authorities after 1999.105 This practice was ceased
in April 2009 (after two weeks)106 and UNMIK and EULEX are assisting with the
resolution of disputes regarding the conscations.107
h Ethnic Conflict
Underlying the diculties outlined above, residual ethnic tensions remain following
the recent ethnically driven conict in the region. Although this is now exhibited
in low level bursts of violence, in some cases, it is only through the intervention of
UNMIK, KFOR and EULEX that disputes are resolved. Several incidents of violence
have taken place in northern Kosovo municipalities especially against Kosovo Al-
banians returning to repair their homes.108 In November 2008, UNMIK and the
Kosovo Police had to intervene to prevent conict when a Kosovo Albanian man
returned to Northern Mitrovica to reconstruct his home that had been damaged in
the war.109 Although they managed to restore order on this occasion, it was not an
isolated instance.
Similar incidents took place during spring 2009 when Kosovo Serbs commenced
daily protests in response to further repair and construction works undertaken by
Kosovo Albanians.110 Kosovo Police, EULEX and KFOR had to intervene, in some
instances, requiring the use of tear gas to disperse the demonstrations.111 During
this time period, EULEX and KFOR were red upon by Kosovo Serbs.112 Interven-
tion by UNMIK led to a compromise by which Kosovo Serbs permitted ve Kosovo
Albanian homes to be rebuilt in return for Kosovo Serbs being allowed to construct
buildings on recently acquired land.113
Despite the brokered agreement, tensions still existed and in August 2009, Koso-
vo Serbs threw stones at Kosovo Albanian construction workers building in an area
where it had previously been agreed that construction could commence.114 Later
in the month, when Kosovo Albanians began to clear an area for work in the mu-
nicipality of Zvean, without having informed UNMIK or the Zvean municipality
itself, confrontations resulted and both Kosovo Serbs and Kosovo Albanians were
injured.115
Ibid.
See note above, .
Ibid.
Beata Huszka, The Presevo Valley of Southern Serbia alongside Kosovo: The Case for
Decentralisation and Minority Protection, Centre for European Policy Studies, Policy
Brief, No. (January ), .
Ibid. .
Southern Serbia ready to join Kosovo, B News, February , Politics sec-
tion, online. Accessed March . http://www.b.net/eng/news/politics-article.
php?yyyy=&mm=&dd=&nav_id=.
Kosovo Speakers secession statement disturbing for Serbs Serbian ocial, B
News, February , transcript available from BBC Monitoring Europe Political.
Local Albanian politician urges annexation of southern Serbia to Kosovo, FoNet.
February , available from BBC Monitoring Europe Political.
Chapter 10, S. Allen and E. Guntrip The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement 315
The concerns regarding governance in Northern Kosovo, and their ow-on ef-
fects in municipalities with ethnic Albanian populations in Serbia such as the Pre-
sevo Valley, may provide an opening for negotiations between Kosovo and Serbia.
Should this possibility arise, the use of alternative principles of international law,
such as the principle of uti possidetis, may provide the parties involved with a dier-
ent viewpoint on the dispute which could potentially result in some headway being
made towards a solution that is acceptable to both parties. To consider this prospect,
it is necessary to consider the principle of uti possidetis and its application, both in
this region and more generally, to see how it may be applied to the Kosovo Question.
See Malcolm N. Shaw, The Heritage of States: The Principle of Uti Possidetis Juris To-
day, British Yearbook of International Law (): , ; Malcolm N. Shaw, Peo-
ples, Territorialism and Boundaries, European Journal of International Law ():
; and Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of
New States, American Journal of International Law (): ; Peter Radan, Post-
Secession International Borders: A Critical Analysis of the Opinions of the Badinter
Commission, Melbourne University Law Review (): .
This position is endorsed in the Badinter Opinions, discussed in section below.
316 III. Kosovo and Self-Determination and Minority Rights
self-determination.123 It was widely assumed that only the majority population of the
SRFYs republics (and Yugoslav Muslims) were nations for this purpose.124 In con-
trast, Article 1 recognised the Serbian provinces of Kosovo and Voivodina as autono-
mous, but the Albanians and Hungarians, concentrated in those territories were
distinct nationalities. Consequently, it cannot be argued that these political units
were accorded the constitutional right of self-determination under the 1974 Consti-
tution. Instead, the Constitution recognised Kosovo and Voivodina as autonomous
entities and they were granted extensive federal powers within the SFRY.125 As a re-
sult of these hybrid powers and responsibilities, it has been claimed that Kosovo and
Voivodina achieved a quasi-republic status under the 1974 Constitution.126
The European Community (EC) Conference on Yugoslavia was convened in re-
sponse to the existential crisis unfolding in the SFRY throughout 1990-1. The Badint-
er Arbitration Committee was tasked with advising the EC Conference on the legal
issues which might arise from the SFRYs constitutional disintegration. In Opinion
No. 1, the Committee recognised that Yugoslavia was already in the process of dis-
solution. However, it sought to maintain the territorial integrity of the SFRYs con-
stituent republics for the purpose of creating new States. This was part of a wider
commitment reected in The Hague Statement and the EC Conference on Yugosla-
vias draft Convention.127
The terms nation and republic were somewhat confused in the Yugoslav con-
stitutional context. Nevertheless, the Badinter Committee equated the terms for its
purposes. Consequently, it endorsed the constitutional right of self-determination
for the SFRYs republics, in keeping with the 1974 Constitution.128 However, it chose
to limit the eects of the decision to transform constitutional entitlements into ex-
ternal self-determination by reference to the principle of uti possidetis. In Opinion
No. 2, which concerned the question of whether the ethnic Serb populations within
Croatia and Bosnia-Herzegovina possessed the right of self-determination in inter-
national law, the Badinter Committee was of the view that:
[I]nternational law as it currently stands does not spell out all the implications of the
right to self-determination. However, it is well established that, whatever the circum-
Although the Constitution did not identify the means by which this right could be ex-
ercised.
See Marc Weller, Contested Statehood: Kosovos Struggle for Independence (Oxford: Ox-
ford University Press, ), .
This was echoed in Principles and of the Serbian Constitution, which recog-
nised Kosovos sovereign rights and it was entrenched in Kosovos Constitution as
well, ibid. .
Ibid.
September and November , respectively.
See Marc Weller, The International Response to the Dissolution of the Socialist Fed-
eral Republic of Yugoslavia, American Journal of International Law (): ; and
Matthew Craven, The European Community Arbitration Commission on Yugoslavia,
British Yearbook of International Law (): .
Chapter 10, S. Allen and E. Guntrip The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement 317
stances, the right to self-determination must not involve changes to existing frontiers at
the time of independence (uti posseditis juris) except where the states concerned agree
otherwise.129
However, an early attempt to relate the principle to Kosovo can be found in Enver
Hansani, Uti Possidetis Juris: From Rome to Kosovo, Fletcher Forum World Aairs
(): . Vidmar, writing in , acknowledges that the case of Kosovo may invite
scholars to re-evaluate the potential application of uti possidetis to instances of State
dissolution. See Jure Vidmar, Montenegros Path to Independence: A Study of Self-
Determination, Statehood and Recognition, Hanse Law Review (): , .
See Colin Warbrick, Kosovo: The Declaration of Independence, International and
Comparative Law Quarterly (): ; and Jure Vidmar, International Legal Re-
ponses to Kosovos Declaration of Independence, Vanderbilt Journal of Transnational
Law (): .
Indeed, the problem of Kosovos status was, in many ways, the catalyst for the SFRYs
dissolution particularly in the light of the abrogation of its autonomous status under the
Serbian Constitution in .
February , quoted in Weller, note above, .
Ibid. .
320 III. Kosovo and Self-Determination and Minority Rights
See Alain Pellet et al., The Territorial Integrity of Quebec in the Event of the Attain-
ment of Sovereignty, para ., quoted in Radan, note above, .
The successful application of this principle in that context also rendered Montenegros
independence in un-contentious, at least from a legal perspective.
Wilde appreciates the importance of the choice of the signiers used to identify the ter-
ritorial parameters of the right of self-determination in this context. See Ralph Wilde,
International Territorial Administration: How Trusteeship and the Civilizing Mission
Never Went Away (Oxford: Oxford University Press, ), .
Radan notes that while the Badinter Committee relied upon the second, fourth and fth
paragraphs of Article of the SFRY Constitution in support of the view that the
boundaries of the SFRY republics could not be altered without their consent, the Com-
mittee ignored paragraphs one and three which provided that the territory of the SFRY
was indivisible and that the borders of the republics could not be altered without their
agreement. See Radan, note above, .
This position clearly informed Montenegros constitutional status within the FRY, one
that allowed it to accede to independence in .
Chapter 10, S. Allen and E. Guntrip The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement 321
it can be argued that the principle of uti possidetis is now directly relevant to the
Kosovo Question.
The act of transforming the administrative delimitations of the former SFRY au-
tonomous entity of Kosovo into the international boundaries of the State of Kosovo
ensures the achievement of territorial order by reference to a principle that has been
applied consistently to the SFRYs successor States and a series of other State dis-
solutions in Eastern Europe. Further, uti possidetis seems to bolster Pristinas claim
that the State of Kosovo has succeeded to the territory of the former SFRY autono-
mous entity of Kosovo. Finally, the principles application in the present context al-
lows international law to endorse the working assumption made by the international
community throughout: that Kosovo is a distinct territorial unit (regardless of the
question of its status).
But if uti possidetis is now considered to be relevant to the Kosovo Question,
what contribution could the principle make to its resolution? If it simply turns in-
ternal administrative delimitations into international boundaries and upholds the
intangibility of the resultant frontiers, the principle has very little to oer. However,
this essay argues that a revised interpretation of the principle of uti possidetis could
make a valuable contribution to resolving the Kosovo Question.
a Latin America
In Latin America, the Iberian colonial powers did not always occupy the territories
they claimed eectively. As a result, during the decolonisation of Spanish America
in the early nineteenth century, the principle of uti possidetis juris was developed to
establish the formal territorial parameters of successor States in a way that would
protect them against external territorial claims justied via the doctrine of terra
nullius.148 The genitive juris referred to the formal attribution of legal title which
could be founded on constructive or ctional rather than actual occupation of the
territory in issue.149 It quickly became a regional custom in the former Spanish ter-
ritories.150
According to Ratner, uti possidetis provides that states emerging from decolo-
nization shall presumptively inherit the colonial administrative borders that they
See the Separate Opinion of Judge Ajibola in the Territorial Dispute (Libya/Chad) Case,
ICJ , para. ( February). Portugal favoured adopted a de facto variant of uti
possidetis which focused on actual rather than notional possession.
Ibid. para. ; Frontier Dispute (Burkina Faso/Mali) Case, ICJ , para. (
December); and the Case Concerning Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras), ICJ , para ( September).
See Article of the Treaty of Confederation signed at the Congress of Lima in . See
L. D. M. Nelson, The Arbitration of Boundary Disputes in Latin America, Netherlands
International Law Review (): , .
322 III. Kosovo and Self-Determination and Minority Rights
held at the time of independence.151 Further, Shaw observes that the principle is: a
presumption of law concerning one aspect of the transmission of sovereignty from
an existing state to a new state.152 Its presumptive quality means that, unless there
is evidence to the contrary, dened units within one sovereign will come to inde-
pendence within that territorial dened unit.153 While the presumptive quality of
uti possidetis is an inherent characteristic of the principle,154 it has often been over-
looked, especially in recent years.
In certain instances, the newly independent Latin American States were prepared
to revise inherited territorial delimitations by means of treaty and/or arbitration to
promote the stability of their international boundaries. The opportunity for territo-
rial/boundary adjustment may have been sparingly used and it was certainly tempo-
rally limited. However, while the new States acknowledged the value of maintaining
the territorial status quo inherited on achieving independence, at the moment of in-
dependence (and during its immediate aftermath) they recognised that the received
delimitations could be varied by consent according to a wide range of equitable con-
siderations. Regional practice quickly reected this scope for revision.155
Numerous instances of arbitration concerning the resolution of territorial/
boundary disputes in Latin America have shown that the presumptive nature of uti
possidetis has endured in the postcolonial era.156 The capacity of all States to vary
their boundaries by treaty is well settled in international law.157 However, during the
process of decolonisation in Latin America, the application of the principle of uti
b Africa
As a result of its successful application in the Latin American context, uti possidetis
was subsequently invoked to facilitate the decolonisation of Africa during the 1960s
and 1970s. Support for the principle can be found in Article 3(3) of the Charter of the
Organisation of African Unity (OAU), in which member States pledged: respect for
the sovereignty and territorial integrity of each State and for its inalienable right to
independent existence. It has been claimed that the principle was implicitly recog-
nised by the OAUs Conference of Heads of State and Government in Cairo in 1964,
which declared that member States: solemnly pledge themselves to respect the
borders existing on their achievement of national independence.158 However, the
normative content of uti possidetis was fundamentally altered when it was applied
in Africa.159 In this context, the principle became closely tied to the meta-principle
of territorial integrity which protects an established States territorial sovereignty.160
The principle of territorial integrity, which is inextricably tied to the principle
of non-intervention, was endorsed by Article 2(4) of the UN Charter. It provides
that: All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any State,
OAU AHR/Res. (). This claim was made by the ICJ in the Burkina Faso/Mali Case,
note above, (discussed below).
See Malcolm N. Shaw, Title to Territory in Africa (Oxford: Oxford University Press,
) -; and Ratner, note above, .
GA Res. (XXV), A/RES/ ( October ).
324 III. Kosovo and Self-Determination and Minority Rights
or in any other manner inconsistent with the Purposes of the United Nations. The
principle has been subsequently reinforced by the Declaration on the Principles of
International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations (1970). It provides that: Every
State has the duty to refrain in its international relations from the threat or use of
force against the territorial integrity or political independence of any State Ac-
cording to the ICJ in the Nicaragua Case, this provision is indicative of customary
international law on this issue.161 Moreover, Principle IV of the Helsinki Final Act
(1975) states: [t]he participating States will respect the territorial integrity of each of
the participating States.162
While the distinction between the principles of uti possidetis and territorial in-
tegrity may be ne, it is an important one. As Shaw explains:
[Uti possidetis] is a transitional mechanism and process which concerns the transmission
of sovereignty from a previous sovereign authority to the new state. It is, therefore, part
of the larger principle relating to the stability of territorial relationships. It provides the
territorial delineation for the process of establishment of a new state by positing, absent
of special factors, the continuation of the pre-existing line, whatever provenance that line
previously claimed. It is limited both temporally and conceptually to this situation. Once
the new state is established, the principle of uti possidetis will give way to the principle
of territorial integrity, which provides for the international protection of the new state so
created. While it freezes the territorial situation during the movement to independence,
uti possidetis does not prescribe a territorial boundary which can never be changed. It is
not intangible in this sense.163
In essence, the principle of uti possidetis operates before the new State is established
despite it being a component of the process of independence. In contrast, from the
moment of independence, it is the principle of territorial integrity that protects the
new State at an inter-State level. It is worth noting that the scope and function of
the principle of territorial integrity was recognised by the ICJ in its Kosovo Opinion.
After setting out the abovementioned provisions of the UN Charter, the 1970 UN
Declaration and the Helsinki Final Act it held that: the scope of the principle of ter-
ritorial integrity is conned to the sphere of relations between States.164
However, despite such widespread and authoritative recognition of the limits of
the territorial integrity principle, in the African context, uti possidetis was increas-
ingly equated with it and it became known as the doctrine of the inviolability of
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Unit-
ed States/Nicaragua), (Merits) ICJ , para ( June).
CSCE Helsinki Final Act, International Legal Materials (): .
See Shaw, note above, . Jan Klabbers and Rene Lefeber also share this view. Af-
rica: Lost Between Self-determination and Uti Possidetis, in Peoples and Minorities in
International Law, eds. Catherine Brolmann et al. (Dordrecht: Martinus Nijho, ):
, .
See note above, para .
Chapter 10, S. Allen and E. Guntrip The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement 325
inherited territorial frontiers. For instance, in the Burkina Faso/Mali Case, the ICJ
noted that it had been asked to resolve the dispute by reference to the, principle of
the intangibility of frontiers inherited from colonization. It, cannot disregard the
principle of uti possidetis juris, the application of which gives rise to this respect for
the intangibility of frontiers.165 The ICJ has used these terms interchangeably ever
since.166 Further, in the Burkina Faso/Mali Case, it observed that Article 16(1) of the
OAUs Cairo Declaration, deliberately dened and stressed the principle of uti pos-
sidetis juris contained only in an implicit sense in the [OAU] Charter.167
The process of African decolonisation was driven by international laws recogni-
tion that colonised peoples possessed the right to national self-determination,168 and
that colonial powers were under an obligation to realise that right.169 It was clear
that the right would have to operate within a territorial framework and that the
balance between territorial entitlement and the right to self-determination would
be a dicult one. While paragraph 2 of the Colonial Declaration (1960) recognised
that colonised peoples possessed the right of self-determination as a matter of in-
ternational law,170 under paragraph 6, the exercise of this right could not undermine
the territorial integrity of the (colonial) national unit.171 Accordingly, the normative
tension between these two fundamental principles of international law would inevi-
tably lead to practical problems on the ground. In the circumstances, the (colonial)
territorial status quo represented a practical means of giving eect to this right.
Consequently, the principle of territorial integrity (and thus uti possidetis) was gen-
erally favoured at the expense of the right to self-determination during the process
of African decolonisation.
While the ICJ has recognised the potential conict between uti possidetis and the
exercise of the right to self-determination in this context, it suggested that:
[T]he maintenance of the territorial status quo in Africa is often seen as the wisest course,
to preserve what has been achieved by peoples who have struggled for their independ-
ence, and to avoid a disruption which would deprive the continent of the gains achieved
by much sacrice.172
The rigid interpretation of uti possidetis followed in Africa was clearly favoured by
the international community and by the withdrawing colonial powers because the
notion of territorial continuity would ostensibly promote order and thus interna-
tional stability. In addition, it was also attractive to those African political elites
which were primed to lead the newly independent States as it oered principled con-
tinuity and sought to stave o irredentist forces and internal conict.173
As the new African States agreed to equate uti possidetis with the principle of
territorial integrity at the OAU it could be argued that the principles consensual
basis was maintained. The importance of consent was recognised by the ICJ in this
context. It observed that: The essential requirement of stability in order to survive
has induced African States judiciously to consent to the respecting of colonial
frontiers 174 Further, cases where the principle of uti possidetis was not applied
could be seen as indicative of the continuing importance of consent in relation ter-
ritorial units established on independence.175 It could, therefore, be claimed that the
decision not to apply uti possidetis in exceptional cases provides cogent evidence
that the principle remained presumptive rather than dispositive in the African con-
text and that it remained distinct from the territorial integrity principle. However,
in fact, the consent of colonised peoples was not typically sought regarding the form
and shape independence in Africa. And, as a matter of international law, it was not a
requirement in the vast majority of cases.176
During the decolonisation of Africa, uti possidetis lost its presumptive quality
and it became indistinguishable from the rigid meta-principle of territorial integrity.
According to Shaw, the African conception of uti possidetis: operat[ed] as a block-
c Yugoslavia
As noted in section 2 of this essay, there was a substantial political commitment to
maintaining the territorial integrity of the SFRYs constituent republics for the pur-
pose of creating new States. This commitment was expressed in the EC Guidelines
on the Recognition of New States in Eastern Europe and the Soviet Union; the EC
Declaration on Yugoslavia and the draft Convention of the Conference on Yugosla-
via (1991). Further, it was bolstered by the international legal principle of uti posside-
tis. The Badinter Committee elaborated upon its understanding of this principle in
Opinion No. 3:
Except where otherwise agreed, the former boundaries become frontiers protected by
international law. This conclusion follows from the principle of respect for the territorial
status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though
initially applied in settling decolonisation issues in America and Africa, is today recog-
nized as a general principle, as stated by the International Court of Justice in its Judgment
of 22 December 1986 in the case between Burkina Faso and Mali (Frontier Dispute, (1986)
Law Reports 554 at 565):
Nevertheless the principle is not a special rule which pertains solely to one specic
system of international law. It is a general principle, which is logically connected with the
phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose
is to prevent the independence and stability of new states being endangered by fratricidal
struggles...178
This Opinion reinforced Opinion No. 2, which stated that: the right to self-determi-
nation must not involve changes to existing frontiers at the time of independence (uti
possidetis juris) except where the states concerned agree otherwise.179Accordingly,
the Badinter Opinions represent another stage in the transformation of uti pos-
sidetis from a presumptive principle into an inviolable one.180 It could be argued
that, by recognising that States could alter their shared international boundaries by
consent, the Badinter Opinions oered a degree of exibility regarding the territo-
rial outcomes in situations of independence. Nevertheless, the general tenor of the
Opinions endorsed the territorial status quo to such an extent that they render the
prospect of territorial revision deeply unattractive at a political level. The issue of
consent in such situations is explored further below.
may be varied by consent, it assumes that this course of action is a highly exceptional
one.
The fundamental dierence between the principle of uti possidetis and the princi-
ple of the territorial integrity lies in the respective weights given to the presumption
of continuity. With regard to the operation of the principle of uti possidetis, in the
context of Latin American decolonisation, the presumption in favour of the territo-
rial status quo was rebuttable in certain situations. However, it grew much stronger
when it was applied during the decolonisation of Africa, wherein it was construed in
such a way that it became virtually indistinguishable from the strong presumption
which underpins the territorial integrity principle. Increasing normative confusion
between the two principles has undermined the potential utility of uti possidetis.
Specically, it reduces the contribution that uti possidetis can make to resolving dif-
cult cases of dissolution and secession because it diminishes the scope for the prin-
cipled revision of inherited territorial frameworks at the moment of independence.
As with the process of African decolonisation, the ability of new States to vary
the frontiers inherited at independence by agreement in the dissolutions of the SRFY
and the USSR was restricted in favour of the territorial status quo because it was
thought to promote regional stability at a critical time. However, by advancing no-
tions of collective agreement on a regional basis these systematic approaches have
discouraged territorial adjustments at a moment when principled revision may have
actually facilitated regional stability. Accordingly, such approaches have strength-
ened the presumption in favour of the territorial status quo which has proved to
be unsustainable in the Kosovo context. By recognising the provisionality of the
territorial status quo inherited at independence this essay argues that uti possidetis
aords international actors and States the chance to negotiate signicantly better
international boundaries than those forged in the theatres of Africa, the SFRY and
the USSR.184
In general, where two countries establish a frontier between them, one of the primary
objects is to achieve stability and nality. This is impossible if the line so established can,
at any moment, and on the basis of continuously available protest, be called into question
and its rectication claimed.185
For instance, in the (former) Yugoslavian context, the common boundary between
Slovenia and Croatia was xed by reference to the Badinter Committees interpreta-
tion of uti possidetis when they acceded to independence in 1991. However, in July
2001, Slovenia and Croatia negotiated a draft Treaty concerning the Common State
Border (the Drnovsek-Racan Agreement), which sought to vary the uti possidetis line
between the two States in certain areas.186
It could be argued that, as international boundaries can be varied by the consent
of the aected States, uti possidetis is merely a stop-gap in cases where the pos-
sibility of boundary revision is being contemplated. However, ve points are worth
making in this regard. First, as noted in the previous subsection, by endorsing a rigid
interpretation of uti possidetis, international law makes it less likely that States will
seek to vary their common boundaries unless the need is particularly acute. Second,
regardless of the possible changes mooted by States in such situations, the weight
of the territorial status quo is considerable. Therefore, attention must be paid to the
potential application of uti possidetis as it acts as the measure by which any negoti-
ated changes should be judged. Third, the argument advanced in this essay that
the presumption on which uti possidetis is based is weaker than has been widely sup-
posed allows for the presumption to be rebutted where there are equitable reasons
for so doing. The exibility character of uti possidetis lends it utility as mechanism
to be used during negotiations concerning territorial adjustment/boundary revi-
sion. Fourth, cases of secession will invariably be dierent from situations where
established neighbouring States are engaged in the act of establishing an interna-
tional boundary. In the present context, it is important to remember that the State
of Kosovo has been carved out of Serbian territory without Serbias consent. This
fact is bound to aect the modalities of any negotiated settlement between the two
parties. Finally, in the light of the problems generated by the enclaves on either side
of the Kosovo-Serbia border the administrative delimitations of the former SFRY
entity of Kosovo are not capable of providing a stable international frontier of the
new State of Kosovo.
However, Croatia ultimately refused to sign the draft Treaty. A boundary dispute sub-
sequently arose between the two States. Croatia has challenged the integrity of the
boundary in a number of areas. Since , the EU has sought to negotiate an arbitra-
tion agreement between the two States to resolve this dispute within the context of
its accession programme. The two governments signed the arbitration agreement on
November . However, the agreement has yet to be ratied.
Chapter 10, S. Allen and E. Guntrip The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement 331
follow that the territorial unit for the purpose of exercising this right is the former
SFRY autonomous entity of Kosovo. However, this conclusion ignores the rights of
other societal groups that inhabit Kosovo, particularly the ethnic Serbs located in
Northern Kosovo?
As noted earlier, a minority rights regime was included in UNMIKs Constitu-
tional Framework for Provisional Self-Government (2001). It was further developed
in the Ahtisaari Plan (2007), which Kosovo endorsed as part of its Declaration of
Independence in 2008.187 However, as the rst section of this essay discussed, a mi-
nority rights regime has not been eectively implemented in Northern Kosovo. In
such circumstances, could the Kosovo Serbs access the right to self-determination?
The right to internal self-determination has gained considerable support in inter-
national law in the last two decades. This signicant development has the capacity to
ameliorate secessionist tensions in all but the most exceptional of cases.188 In cases of
external self-determination, uti possidetis is still required to perform its dual role of
preventing external territorial claims and avoiding internal conicts. However, the
ascendance of the right to internal self-determination, with its core requirement of
representative government, should lead to a re-evaluation of the interplay between
external self-determination and uti possidetis. In principle, the internal administra-
tive delimitations which could be transformed into the international boundaries of
new States should be susceptible to reappraisal in the light of the self-determina-
tions increasing focus on representative government.
There may be compelling reasons not to endorse claims to statehood made by
isolated enclaves, as in the cases of Krajina and Srpska.189 Nonetheless, in principle,
there are legitimate reasons for revising boundaries where compact ethnic popula-
tions are found on either side of a common State border, especially when that bound-
ary was previously an internal administrative delimitation of a single State. The
presumption in favour of the territorial status quo at the moment of independence
should be recognised but provisional boundaries should not be viewed as inviolable
as a matter of course. Accordingly, the normative developments in the discourse of
self-determination support the argument for softening the principle of uti possidetis
in the post-Cold War era in the interests of international stability.190
In the present context, if the creation of the State of Kosovo can be justied by
reference to a claim of remedial self-determination/secession on the part of Kosovo
Albanians then, in principle, only those broad territories inhabited by Kosovo Al-
banians should be allowed to secede (as opposed to the entire territory which was
formerly the SFRY autonomous entity of Kosovo). The logic of remedial self-deter-
mination/secession should, therefore, allow the ethnic Serb population in North-
ern Kosovo to choose to integrate with Serbia, if they so wish. For this to occur, it
would be necessary to establish that the ethnic Serbs of Northern Kosovo qualify as
a people in order for them to access the right to self-determination as a matter of
international law. On an orthodox reading of the situation, it would be dicult to
conclude that they were anything other than a national minority and that the right is
inaccessible to them. However, if the case of Kosovo has reinforced the existence of a
remedial self-determination/secession for the Kosovo Albanians, the rights of other
societal groups should also be reappraised in the light of this development.
In particular, parallels could be drawn with Quebecs attempt at secession from
the Canadian Federation. While the Canadian Supreme Court decided that Quebec
was not entitled to secede, had the Quebecois claim to remedial self-determination
been stronger, a formidable obstacle would have arisen the impact that secession
would have had on the rights of other societal groups located in Quebec (notably
the aected indigenous people, the Cree). At the time the case was heard, the Cree
did not possess a distinct right to self-determination.191 Nevertheless, the potential
impact that the secession would have had on their collective rights enabled them to
undermine the Quebecois claim signicantly at a political level.192
The absence of eective governance by the Pristina authorities in Northern Koso-
vo and the lack of a meaningful minority rights regime could enable ethnic Serbs to
make legitimate claims for territorial adjustments at certain points on the border
between Kosovo and Serbia. If, as it appears, the case for recognising the Kosovo
Albanians right to self-determination/secession is stronger than the Quebecois liti-
gated claim then the impact that the exercise of such a right would have on other
societal groups must be carefully assessed and possible solutions should be found.
It is suggested that recognition of the incompatibility of the rights of the Kosovo
Albanians and the ethnic Serbs in Northern Kosovo would strengthen the case for
territorial/boundary revisions.
Alternatively, if it is accepted that Kosovos status remains in ux and that the
territorial unit remains part of Serbia (however notional that conclusion is) then the
Kosovo Albanians claim to remedial self-determination/secession may allow them
to create a new self-determining unit (the State of Kosovo). However, at the same
time, the territorially compact ethnic Serb group in Northern Kosovo should be
entitled to remain within the wider established self-determination unit (the State
of Serbia). The former remedial act would be an act of external self-determination
while the latter would constitute an act of internal self-determination. In this re-
spect, the two forms of self-determination could interact for the benet of the af-
fected populations and in the interests of regional stability.
might be too much to bear for an international community which has been sorely
tested by events in this region. However, the same community has been prepared to
stretch the corpus of international law on two previous occasions in order to address
the problems confronted by the Kosovo Albanians. It may well be that the interna-
tional community will have to accept that an exceptional approach is once again
justied, if the ultimate aim of resolving the Kosovo Question is ever to be achieved.
Territorial revision is clearly a high-risk political strategy but it may be the best
way of resolving the seemingly intractable Kosovo Question in the longer run. It
is suggested that uti possidetis could provide a useful legal criterion to inform any
such process of revision. However, this presupposes that international law has the
capacity to inuence the outcomes of a territorial/boundary dispute driven by pow-
erful real-politik considerations. Ratner has argued that international law has a role
to play during negotiations concerning territorial/boundary disputes. He claims
that it, may represent a sort of fact on the ground that neither party can ignore.201
Moreover, he believes that it can identify a range of substantive solutions (and it can
invalidate others).202
Clearly, international law can shape the range of options available to governments
when they consider their standpoints on various issues from within. In particular,
judicial decisions play an important role in determining international law, especially
in the context of territorial/boundary disputes.203 However, Ratner draws a distinc-
tion between judicial and arbitral decisions. In his view, the latter are examples of
delegated decision-making.204 While this distinction ignores the fact that even the
ICJ does not possess plenary authority there is some justication for it since the
task of an arbitral panel often manifests a political dimension. In Ratners words,
political arbitration allows a panel the freedom to balance interests rather than ap-
ply legal rules.205 This might be over emphasizing the political nature of arbitral
decision-making rather than the political conditions in which arbitral panels oper-
ate. Arbitral panels do strive to apply legal rules; however, there is often a degree of
exibility in their decision-making that is rarely apparent, for instance, in the deci-
sions of the ICJ.
Important arbitral decisions have disregarded the uti possidetis line in favour of
more exible principles in an eort to establish a just and equitable boundary. These
cases could be used to demonstrate the potential signicance of uti possidetis in any
negotiations entered into between Kosovo and Serbia concerning the position of
their common boundary in certain areas. The next subsection focuses on two cases
that could guide Kosovo and Serbia in this respect.
Steven R. Ratner, Land Feuds and Their Solutions: Finding International Law Beyond
the Tribunal Chamber, American Journal of International Law (): .
Ibid. -.
The classical example is the Island of Palmas Case, Reports of International Arbitral
Awards (): .
Ratner, note above, .
Ibid. .
336 III. Kosovo and Self-Determination and Minority Rights
The High Contracting Parties are agreed that the only line that can be established de jure
between their respective countries is that of the Uti Possidetis of 1821. Consequently it is
for the Tribunal to determine this line. If the Tribunal nds that either Party has during
its subsequent development acquired beyond this line interests which must be taken into
consideration in establishing the nal frontier, it shall modify as it may consider suitable
the line of the Uti Possidetis of 1821 and shall x such territorial or other compensation as
it may deem equitable for one Party to pay to the other.206
This case is signicant for the present purpose for a number of reasons. Although
the parties were anxious to resolve their territorial dispute by reference to legal prin-
ciple, they were prepared to authorise the Tribunal to supersede the uti possidetis
line in areas where exceptional reasons justied such a course of action. Uti posside-
tis therefore provided the general basis for determining the frontier but the Tribunal
was licensed to apply ex aequo et bono as well as equity infra legum in appropriate
situations. The case also illustrates the presumptive nature of uti possidetis and thus
the continuing importance of maintaining the distinction between this principle
and the inviolable principle of territorial integrity, as discussed in section 4.
There are signicant dierences between the Honduras Borders Case and the
Kosovo-Serbia border problem discussed in this essay. First, in most of the cases
where the principle of uti possidetis is invoked the problem lies in identifying the
precise location of a common frontier due to a lack of cogent evidence. In contrast,
in Kosovo, the territorial parameters of the former SFRY entity are well-known and
clearly demarcated. Accordingly, in the present situation, the issue is about the vi-
ability of the administrative delimitations acquired at the moment of independence
rather than their exact whereabouts. Further, it clear is that evidential diculties
were the main cause of the territorial dispute addressed in the Honduras Borders
Case. Nevertheless, as noted above, under the Special Agreement, the Tribunal was
authorised to disregard the uti possidetis line in the interests of justice and equity
where it was appropriate to do so and the Tribunal did rely upon other sources in
certain disputed sectors. In the circumstances, it would be inaccurate to suggest
that the Honduras Borders Case is authority for the proposition that the principle of
uti possidetis can only be superseded where the uti possidetis line is unreliable for
evidential reasons.
Second, the Tribunal was required to assess the implications of developments
aecting the common frontier occurring over a period in excess of one hundred
years after independence had been achieved. In contrast, in Kosovo, arguments for
territorial adjustments/boundary revision are based on the presence of enclaves that
existed before Kosovos Declaration of Independence.208 In this context, the argu-
ment would be for the international boundary to reect the current realities at the
time of independence rather than at a later stage.
While the temporal element is materially dierent from the one apparent in the
Honduras Borders Case there are good reasons for making a wider comparison be-
tween the two cases. The decolonisation of Latin America occurred long before self-
determination had crystallised as an entitlement in international law.209 This fact
is particularly important in the context of the Kosovo Question which appears to
centre on countervailing claims of self-determination (remedial self-determination/
secession on the part of the Kosovo Albanians versus internal self-determination
on the part of ethnic Serbs of Northern Kosovo). Second, the governance problem
in Northern Kosovo and the ethnic tensions which underlie it highlight the practi-
cal implications of the Kosovo Question demonstrate the desirability of reaching a
negotiated settlement. It is suggested that a process of territorial adjustment/bound-
ary revision by reference to established legal criteria represents an appropriate way
forward in the circumstances.
By harnessing the normative essence of the Honduras Borders Case it can be ar-
gued that the general application of uti possidetis ensures that the administrative
lines which delimited the former SFRY autonomous entity of Kosovo should be pre-
sumptively constitute the international boundaries of the State of Kosovo. However,
where there are exceptional reasons, the uti possidetis line can be varied by negotia-
tion to reect the interests of the parties thereby justifying a process of bound-
ary revision/territorial adjustment in Northern Kosovo and in the Presevo Valley
in Southern Serbia. Such a settlement would involve considerable political will and
would inevitably be a highly technical and complex exercise. The present essay is not
suggesting that the common boundary should merely be drawn to reect the terri-
tory or territories currently eectively controlled by the ethnic Serbs in Northern
Kosovo or by ethnic Albanians in the Presevo Valley in Serbia. Instead it is identify-
Although the size and signicance of such enclaves increased after the SFRYs collapse
they were established long before that event.
See Franck, note above, .
338 III. Kosovo and Self-Determination and Minority Rights
ing the availability of legal criteria which can inform and guide political negotiations
directed towards settling the Kosovo Question.
What factors could inform the drawing of a common frontier between Kosovo
and Serbia? When the Tribunal in the Honduras Borders Case experienced di-
culty in establishing the uti possidetis line in certain parts of the common frontier
it relied upon evidence of actual occupation as evidenced by: an amalgam of State
interests derived from both private and public activity both of central and local gov-
ernment organs and of nationals settling or exploiting a disputed area.210 While
such an approach may be appropriate in many situations, the adoption of the test
of eective control approach would be problematic in the Kosovo-Serbia context
given the extent to which ethnic violence and programmes of involuntary displace-
ment have shaped the enclaves in question. It is not being suggested here that the
straightforward exchange of territory will produce a just and stable frontier between
the two States. Clearly a more creative and nuanced approach will be required if an
enduring international boundary is to be established. Accordingly, the concept of
equity must be revisited and it must be interpreted in a manner that is consistent
with contemporary entitlements to self-determination (while bearing in mind the
relatively modest scope for territorial adjustment permitted by uti possidetis pre-
sumptive nature). In the circumstances, analysis undertaken by the arbitral panel in
the Brcko Corridor Case may be instructive.
The Tribunal was empowered to decide this case by reference to, relevant legal
and equitable principles.215 It considered the available scope for relying upon equity
in the context of territorial disputes.216 It concluded that equitable principles neces-
sitated the rendering of an award which would give eect to considerations of fair-
ness, justice and reasonableness.217 In this regard, the Tribunal relied upon the view
expressed by Judge Arechaga in the Continental Shelf (Tunisia/Libya) Case:
the judicial application of equitable principles means that a court should render justice in
the concrete case, by means of a decision shaped by and adjusted to the relevant factual
matrix of that case. Equity is here nothing more than the taking into account of complex
historical and geographical circumstances the consideration of which does not diminish
justice but, on the contrary, enriches it.218
In addition, the Tribunal recognised the need to produce an equitable result. In this
respect, it again drew upon the ICJs reasoning in the Tunisia/Libya Case:
The equitableness of a principle must be assessed in the light of its usefulness for the
purpose of arriving at an equitable result. It is not every such principle which is in itself
equitable; it may acquire this quality by reference to the equitableness of the solution. The
principles to be indicated by the Court have to be selected according to their appropri-
ateness for reaching an equitable result. From this consideration it follows that the term
equitable principles cannot be interpreted in the abstract; it refers back to the principles
and rules which may be appropriate in order to achieve an equitable result.219
In its Award, the Tribunal identied the need to implement the Dayton Accords in
the area of nature of uti possidetis can allow for the application of equitable consid-
erations in Brcko. It sought to combine the relevant sources of international law (the
Dayton Accords and the ICJ decisions concerned with equity) to justify the tempo-
rary administration of Brcko and its surrounding area by international authorities.220
The Brcko Corridor Case shows how an arbitral panel can endeavour to resolve
a territorial/boundary dispute by using equitable principles creatively to nd a just
solution. Although this case did not involve an international boundary the nature
of the boundary in question is analogous for the purpose of applying the principle of
Article of Annex .
See note above, .
Ibid.
ICJ ( February) (Arechaga J., Separate Opinion), quoted, ibid. -.
Ibid. .
See Ratner, note above, -. In particular, the Tribunal called upon the Oce
of the High Representative for Bosnia-Herzegovina to develop measures to implement
the Accords and to strengthen local democratic institutions in the area in question.
Further, the Tribunal mandated that the various policing agencies should co-ordinate
to ensure freedom of movement through the Brcko corridor in the interests of all the
citizens of Bosnia-Herzegovina.
340 III. Kosovo and Self-Determination and Minority Rights
uti possidetis. The case, therefore, adds weight to the Honduras Borders Case, which
demonstrated that the presumptive appropriate cases.
Even formal judicial bodies, such as the ICJ, are not unmoved by the social and
political consequences that ow from territorial/boundary disputes. In the Camer-
oon/Nigeria Case, the ICJ refused to adjust the common frontier in order to reect
population shifts across it in areas where there was an established boundary.221 Nev-
ertheless, it recognised that, instead it is up to the Parties to nd a solution to any
resultant problems, with a view to respecting the rights and interests of the local
population.222 Modest adjustments determined by the court elsewhere in the land
boundary meant that small Nigerian populations were transferred to Cameroonian
sovereignty. However, the court urged the parties, to cooperate in the interests of
the population concerned, in order notably to enable it to continue to have access
to educational and health services comparable to those it currently enjoys.223 While
the ICJ declined to substantially revise the boundary in order to reect social reality
in this case it was mindful of the implications of its ruling for the aected popula-
tions and it took steps to minimise them.
The judicial model is not well-placed to determine those territorial/boundary
disputes which are essentially political in character. Arguably, forms of political ar-
bitration are better suited to achieving an equitable result in such cases. However,
arbitral panels still operate within formal legal frameworks and they require the
parties to agree to such a method of dispute resolution in the rst place. It is high-
ly unlikely that Kosovo and Serbia will allow a court or tribunal to establish their
common boundary as the position of the boundary between them is too politically
charged. It is more probable that Pristina and Belgrade would negotiate on this issue
directly (with the assistance of political mediators). Nevertheless, international law
could form part of the framework for any such negotiations and that the cases and
principles discussed in this essay could help to shape their outcome.
7 Conclusion
The principles of uti possidetis and self-determination were used by the Badinter
Committee and the EC to justify the claims to independent statehood made by the
SFRYs constituent republics in 1991-2. Kosovos claim was ignored because it was
not the beneciary of the right of self-determination according to the SFRYs 1974
Constitution. However, the violent repression of Kosovo Albanians conducted and
sponsored by Serbia during the 1990s and the subsequent NATO and UN interven-
tion has resulted in a material change of circumstances which has led to a re-evalu-
may result from such negotiations could have positive consequences for the resolu-
tion of the wider Kosovo Question.
IV.
Implications of Kosovo as a
Precedent for Other Regions
Chapter 11 Is Kosovo and Metohija Indeed a
Unique Case?
MIODRAG A. JOVANOVI*
1 Introduction
Ever since the end of the NATO military intervention in Serbia, Kosovo and Meto-
hija1 (Kosovo) has become a passionately debated topic in various international
conferences and in numerous journals dedicated to the problem areas of political
theory and philosophy, ethics, international law and international relations. The
complexity of the case has very often prompted participants in the debate to cross
the borders of their own disciplines and to resort to methods and arguments of the
neighboring academic elds. This particularly holds for international legal scholars,
who in grounding their positions routinely relied on arguments from just war theo-
ries, political theories of secession or general ethics. Koskenniemi, thus, argues that:
Kosovo has invited international lawyers to throw away dry professionalism and
imagine themselves as moral agents in a mission civilicatrice. A particularly shallow
and dangerous moralisation that forecloses political energies needed for transfor-
mation elsewhere. After admitting that he also found himself in the ambivalent
position, in holding that the military intervention was both formally illegal and
morally necessary, Koskenniemi concludes that: Kosovo has come to be a debate
about ourselves, about what we hold as normal and what exceptional, and through
that fact, about what sort of international law we practice.2
In that respect, it seems that the stakes for international legal scholars are higher
than ever, particularly after the highly controversial advisory opinion of the Inter-
national Court of Justice. In this opinion, the Court narrowly conned itself to an-
swering the question submitted to it by the UN General Assembly: Is the unilateral
declaration of independence by the Provisional Institutions of Self-Government of
* This chapter is based on the presentation that was delivered at the international con-
ference Kosovo and Metohija as a Global Problem, which took place from to
November at the Faculty of Law, University of Belgrade.
This is the ocial name of the province in the Constitution of the Republic of Serbia.
Martti Koskenniemi, The Lady Doth Protest Too Much Kosovo, and the Turn to
Ethics in International Law, Modern Law Review (): .
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 345-374.
346 IV. Implications of Kosovo as a Precedent for Other Regions
Kosovo in accordance with international law?3 While deciding, by ten votes to four,
that the declaration of independence of Kosovo adopted on 17 February 2008 did
not violate international law, the Court explicitly stated in a number of places what
it was not asked and, hence, what it was not required to address in its opinion. The
Court says that the submitted question: does not ask about the legal consequences
of that declaration. In particular, it does not ask whether or not Kosovo has achieved
statehood. Nor does it ask about the validity or legal eects of the recognition of
Kosovo by those States which have recognized it as an independent State.4 Con-
sequently: The Court is not required by the question it has been asked to take a
position on whether international law conferred a positive entitlement on Kosovo
unilaterally to declare its independence or, a fortiori, on whether international law
generally confers an entitlement on entities situated within a State unilaterally to
break away from it. Moreover: it is entirely possible for a particular act such as a
unilateral declaration of independence not to be in violation of international law
without necessarily constituting the exercise of a right conferred by it. The Court has
been asked for an opinion on the rst point, not the second.5 Finally, the Court spe-
cically underlines that the questions, as to whether Kosovo has the right to separate
statehood in accordance with international law on self-determination or as a form
of remedial secession, go beyond the scope of the question posed by the General
Assembly.6
For the moment, almost a month and half after the issuance of the Opinion, it
seems that this vague stance of the Court did not manage to change much in the
political attitudes toward the Kosovo case. Staunch supporters of both Serbian terri-
torial integrity and Kosovo independence stayed entrenched in their prior positions.
Hence, the former camp remained faithful to the claim that the Kosovo indepen-
dence might create a dangerous precedent for a number of similar cases, whereas
the latter camp continued advancing the thesis that the Kosovo case necessitated a
unique, or sui generis, legal solution, and that, being unique, it could not aect any
other case around the globe. For instance, German foreign Minister, Westerwelle,
during his visit to Greek Cyprus, immediately after the Courts ruling, stated that
this opinion does not apply to Cyprus or other countries. The decision has nothing
to do with any other cases in the world, because, this is a very specic case and
it is a unique decision concerning a specic historic situation.7 In a similar fash-
ion, Kosovos representative in the post-Opinion discussion before the UN Security
UN Doc. A//L. .
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, (Advisory Opinion), ICJ para. ( July ).
Ibid. para. .
Ibid. para. .
Germany assuages Greek Cypriot fears over Kosovo Ruling, Accessed September
. http://www.todayszaman.com/tz-web/news---germany-assuages-greek-
cypriot-fears-over-kosovo-ruling.html.
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 347
Council, stressed that Kosovos independence has not set any precedent, and that
it is, a special case.8
The purpose of this contribution is to scrutinize the unique case thesis, by in-
vestigating the factual and legal arguments given in its favor. The reason for this
endeavor lies in the obvious fact that, depending on the sustainability of this thesis,
legal and political implications for some actual or future cases might signicantly
dier. While concentrating on the sustainability of the unique case thesis, I will not
embark upon the detailed analysis of all the plausible implications of the adoption
or rejection of such a thesis. Such an analysis would obviously require a separate
investigation.
Kosovo case were the principles and the framework for talks set up by the Contact
Group. There, it is stated that the Kosovo case is unique, so it cannot serve as a
precedent for any other situation.11
Finally, the unique case thesis was tacitly expressed in certain declarations of
recognition of Kosovo. Illustrative in that respect is the following statement of the
then US Secretary of State, Condoleezza Rice: The unusual combination of factors
found in the Kosovo situation including the context of Yugoslavias breakup, the
history of ethnic cleansing and crimes against civilians in Kosovo, and the extended
period of UN administration are not found elsewhere and therefore make Kosovo
a special case. Kosovo cannot be seen as a precedent for any other situation in the
world today.12 When soon after asked to draw the parallel between the situation in
the Balkans and Caucasus, she repeated that they have nothing in common: I dont
want to try to judge the motives, but weve been very clear that Kosovo is sui generis
and that that is because of the special circumstances out of which the breakup of
Yugoslavia came.13
When all statements of this sort considered, and they were further elaborated in
some written submissions to and oral proceedings before the Court, one may notice
that there are four main arguments for advancing the unique case thesis:
1. Kosovos independence is the nal stage of the break-up of the former Yugosla-
via (The End of Break-Up Argument);
2. The Kosovo Albanian ethnic minority was subjected to the protracted institu-
tional discrimination and exclusion and the gross human rights violations by
the central government (The Human Rights Violation Argument);
3. In order to stop the humanitarian catastrophe, NATO was forced to undertake
an unprecedented humanitarian intervention (The Humanitarian Intervention
Argument);
4. The UN post-conict involvement was immense and unparalleled, since the
province was, both in civil and military terms, for nine years administered by
the UN (The Immense UN Involvement Argument);
In the remainder of this chapter I will demonstrate that neither of these four argu-
ments, which constitute the substance of the unique case thesis can be sustained,
either because a) they are grounded in dubious facts, or b) they rest on the unsub-
stantiated legal analysis, or c) they tend to neglect essentially similar cases that led
to diametrically dierent legal outcomes.
larly relied on this argument for backing up the thesis that Kosovo was a unique
case, whose nal status had to be the one of an independent state. The Croatian
representative before the Court stressed, that Kosovo possessed strong elements of
statehood within the SFRY.19 She supported this thesis by quoting President Mesis
newspaper article in which he summarized the legal status of republics and prov-
inces in the former federation in the following way:
Firstly Yugoslavia consisted of republics and provinces, so provinces were the constit-
uent elements of the Federation. Secondly the provinces were parts of Serbia, which
meant that in addition to having constituent ties with the Federation - they were also
linked with one of its federal units. Th irdly the republics and provinces had united of
their own free will to form Yugoslavia, from which it is to be concluded that they cannot
be retained against their will within this state framework. In the case of provinces, this
relates to both the framework of the Federation and the framework of the federal unit.
And fourthly and nally citizens, i.e., nations and nationalities in the provinces, exercise
their sovereign rights.20
Both states emphasize that, under the 1974 Federal Constitution, the Autono-
mous Province of Kosovo was vested with the right to its own Constitution, leg-
islative power, presidency, constitutional and supreme court. This leads the Croa-
tian representative to conclude, that Kosovo as an autonomous province enjoyed
a status that was largely equal [emphasis mine] with that of the republics in this
Federation.24 Once Kosovo was stripped of these competences, through the pro-
cess of constitutional changes in Serbia (1989-1990), which are in the submissions
characterized as contrary to the 1974 Federal Constitution,25 the way was open for
this province to eventually exercise the ultimate right of withdrawal both from the
common federal state and Serbia. Irrespective of the fact that in 1991-1992 Kosovo
was not accorded independence along with other republics that wished so, the 2008
declaration of independence by the provincial provisional institutions is perceived as
an act that is historically and logically inseparable from the aforementioned analysis
of the constitutional status of Kosovo within the former Yugoslavia.
For the purpose of the refutation of The End of Break-Up Argument, I will not
discuss many points of the multifaceted analysis of the constitutional history of the
former Yugoslavia that was submitted by Slovenia and Croatia. Since the major rea-
son for undertaking this analysis was to demonstrate that the legitimacy and legality
of Kosovos independence can be traced in the constitutional status of this province
under the 1974 Constitution of the SFRY, I will focus on this point.
First of all, one can indeed characterize the then constitutional status of Kosovo
as unusual, as the one of de facto constitutiveness at the Federal level, and, thus,
as the one largely equal to that of republics. However, both some signicant facts
of political history of the province, as well as certain explicit constitutional provi-
sions, which Slovenia and Croatia failed to mention, point to the conclusion that de
jure status of republics and provinces was in certain fundamental respects dierent.
Otherwise, if there were no signicant legal dierences between the two types of
federal subjects, Kosovo Albanians would probably have not so persistently insisted
on the constitutional elevation of their province to the status of republic. The politi-
cal events I have in mind are the huge public rallies that were organized as early as
in 1981 throughout the province. The dominant slogan of these protests was Kosovo
Republic. This political goal was afterwards more or less openly propagated by the
was therefore signicant, and consequently the autonomous provinces formed de facto
constitutive elements of the SFRY. Ibid. .
Verbatim Record, Monday December , CR /, .
After providing a detailed argumentation for the claim that the fundamental constitu-
tional amendments that changed the status of the Serbian provinces were in violation
of the SFRY Constitution, authors of the Slovenian written comments acknowledge that
the then Constitutional Court of Yugoslavia (composed of members from all republics
and provinces) did not consider any of these fundamental amendments as unconsti-
tutional. The only dissenting opinion came from the then Slovenian Constitutional
Court Judge, Professor Ivan Kristan, who was of the opinion that, the status of the au-
tonomous provinces was aected by the aforementioned amendments. Written Com-
ments of Slovenia, April , .
352 IV. Implications of Kosovo as a Precedent for Other Regions
leading communist party cadre of Kosovo Albanians until the beginning of 1990s
when they started to agitate for the outright independence of the province.26
It seems that one of the obvious reasons for this struggle for the status of republic
can be found in the expectation that in some worst case scenario, which gained more
credibility after President Titos death in 198027, republics would be in a better-o
position. This expectation was grounded in the explicit wording of the 1974 Federal
Constitution. Even though this constitution, unlike its Soviet 1977 counterpart, had
no explicit legal norm on the right of republics to secede from the federation,28 it
stipulated in its introductory, non-normative part (Basic Principles, Chapter I, par.
1) the right of all Yugoslav peoples (narodi) to self-determination, including the right
to secession. This provision read as follows:
The peoples of Yugoslavia [emphasis mine], proceeding from the right of every people to
self-determination, including the right to secession, on the basis of their will freely ex-
pressed in the common struggle of all nations and nationalities in the National Liberation
War and Socialist Revolution, and in conformity with their historic aspirations, aware
that further consolidation of their brotherhood and unity is in the common interest, to-
gether with the nationalities with whom they live [emphasis mine], have united in a federal
republic of free and equal nations and nationalities and created a socialist federative com-
munity of working people.29
The italicized phrases in this provision clearly indicate that the holder of the right to
self-determination, including the right to secession, was narod (people, nation), and
not narodnost (nationality), which was the designation used for national minorities
that had their own kin-state. Kosovo Albanians apparently wanted, through acquir-
ing the status of republic for their territorial unit, to also gain the status of a con-
stituent people and, thus, become the holder of the said right. This did not happen
and Kosovo entered the last act of Yugoslav drama as one of two provinces of Serbia.
Cf. Written Statement of Serbia, . Th is point was mentioned in the oral presenta-
tion of the representative of the Netherlands, Verbatim Record, Thursday December
, CR /, .
Until his death in , Tito remained the strongest cohesive factor of the SFRY. Thus,
after that moment, the Titoist program to defuse nationalities problems was also des-
tined to fail. See Sabrina P. Ramet, Nationalism and Federalism in Yugoslavia, -
, nd Edition, (Bloomington: Indiana University Press, ), . For a more gen-
eral study on how this Yugoslav version of communist ethno-federalism contributed to
the failure of the common state see Miodrag Jovanovi, Transition and Federalism
East European Record, in Federalism and Decentralisation in Eastern Europe: Between
Transition and Secession, eds. Miodrag Jovanovi and Slobodan Samardi (Fribourg,
Zurich and Vienna: Institut du Fdralisme, ), -.
See in more details in, Miodrag Jovanovi, Constitutionalizing Secession in Federalized
States A Procedural Approach, (Utrecht: Eleven, ), -.
On the treatment of the secession issue in the constitutional documents and theory
of the former Yugoslavia see Peter Radan, Secession and Constitutional Law in the
Former Yugoslavia, University of Tasmania Law Review (): .
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 353
That provinces did not enjoy the equal de jure status with republics was far more
clearly conrmed in the Badinter Commissions opinions. Notwithstanding the fact
that they are generally decient in many ways,30 these opinions serve as an authorita-
tive legal interpretation of the events in the former Yugoslavia. In that respect, they
are actually the strongest refutation of The End of Break-Up Argument. Namely, as
early as on 22 December 1991, the then political leader of Kosovo Albanians, Dr Ru-
gova, wrote to Lord Carrington, the Chairman of the Peace Conference on Yugosla-
via, asking for independence of the province. This request was based on the results
of an illegally organized referendum, held from 26 to 30 September 1991, which,
according to the Albanian sources, resulted in 87 of the turn-out and 99.87 vote
in favor of independence. This request was, however, rejected. On 15 June 1992, the
European Community (EC) (now European Union (EU)) stated, that frontiers can
only be changed by peaceful means and (the EC countries) remind the inhabitants
of Kosovo that their legitimate quest for autonomy [emphasis mine] should be dealt
with in the framework of the EC Peace Conference.31 Consequently, the uniqueness
of Kosovo case can in no way be attached to the process of the break-up of the former
Yugoslavia.
See, in general, Peter Radan, The Break-up of Yugoslavia and International Law, London
and New York: Routledge, ). Cf. Jovanovi, note above, Chapter .
EC Press Statement, Luxembourg, June ,. Quoted after, Roland Rich, Recogni-
tion of States: The Collapse of Yugoslavia and the Soviet Union, European Journal of
International Law (): .
GA Res. (XXV), UN Doc. A/RES/ ( October ). This clause is rearmed
in section I() of the Vienna Declaration and Programme of Action of the World
Conference on Human Rights. International Legal Materials : , as well as
in Article of the UN Fiftieth Anniversary Declaration, but with a signicant
change regarding the qualication at the end of the provision. Namely, the newly adopt-
ed phrase is unlimited in scope, and it speaks of a government representing the whole
people belonging to the territory without distinction of any kind. GA Res. /, UN
Doc. A/RES// ( October ).
354 IV. Implications of Kosovo as a Precedent for Other Regions
Although he disagrees with such an interpretation, Shaw points to the fact that by re-
versing the proposition of the saving clause, states that do not so conduct themselves
are not protected by the principle of territorial integrity. Malcolm N. Shaw, Peoples,
Territorialism and Boundaries, European Journal of International Law (): .
Crawford, on the other hand, notices that if this proviso is taken to mean that unilat-
eral secession is permissible where the government is constituted on a discriminatory
basis, it is doubtful whether the proviso reects international practice. James Craw-
ford, State Practice and International Law in Relation to Unilateral Secession. Report to
Government of Canada Concerning Unilateral Secession by Quebec, February ,
Part IV. Accessed July . http://www.justice.gc.ca/en/news/nr//factum/craw.
html.
Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge:
Cambridge University Press, ), . Designations internal and external are now
conventionally used among international legal scholars to denote two dierent aspects
of self-determination. Whereas the external aspect, denes the status of a people in
relation to another people, State or Empire, the internal or democratic aspect concerns
the relationship between a people and its own State or government. Patrick Thorn-
berry, The Democratic or Internal Aspect of Self-Determination with some Remarks
on Federalism, in Modern Law of Self-Determination, ed. Christian Tomushat, (Dor-
drecht: Martinus Nijho, ), .
Verbatim Record, Wednesday December , CR /, . The German repre-
sentative also stated that, [t]he developments preceding the Declaration of Independ-
ence reveal a clear case of prolonged and severe repression and denial of internal self-
determination that left the people of Kosovo no other meaningful choice. . Cf. the
oral presentation of the Netherlands, CR /, .
CR /, .
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 355
countries (e.g. Albania, Austria, France, Slovenia, United Kingdom, United States)
in their written submissions presented what they take to be sucient evidence of
that record.37
It is clear that this argument decisively depends on the comprehensive and im-
partial fact-nding, as well as on the adequate attachment of legal consequences to
the established facts. When all the written submissions in favor of the Kosovo Alba-
nians right to remedial secession (external self-determination) taken together, one
can dierentiate between at least three groups of facts supporting this argument.
These are: a) the withdrawal of political autonomy; b) the denial of participation
rights; c) large-scale violations of fundamental human rights.
a) The rst of these concerns the widely acknowledged allegation that in 1989-1990
Kosovo was stripped of its autonomy.38 It is commonly asserted that, in this period,
Miloevi engineered the modication of the SFRY and Serbian constitutions to
all but eliminate Kosovos autonomy as a practical matter.39 That is, the previously
guaranteed autonomy of the province was not only severely diminished,40 but it
was eectively revoked,41 which resulted in the forcible and complete integration
of Kosovo into Serbia.42
While it is correct to say that, with these constitutional changes, the previously
enjoyed extensive autonomy of the province was signicantly restricted,43 it is highly
improbable to assume that, in doing so, Serbia at the time violated any of the fun-
damental norms of international law. One may argue, as Cassese, for instance, does,
that the current political claim of minorities around the globe to the right to au-
tonomy might be evolving, particularly in the light of a right to democracy as part
The same argument is advanced in a NATO funded report, Dajena Kumbaro, The Kos-
ovo Crisis in an International Law Perspective: Self-Determination, Territorial Integrity
and the NATO Intervention, , . Accessed September . http://www.nato.
int/acad/fellow/-/kumbaro.pdf.
Oral statement of the representative of Croatia, Verbatim Record, Monday December
, CR /, .
Written Statement of United States of America, April , .
Written Statement of United Kingdom, April , .
Written Statement of Austria, April , .
Written Statement of France, April , .
It is important to notice that the whole process was conducted with the full participa-
tion of the federal bodies, in which all republics and provinces were represented. More-
over, the proposed constitutional amendments were given assent of the Kosovo Assem-
bly. Due to the deteriorated political situation on the ground, the collective Presidency
of the SFRY did introduce the state of emergency prior to the sitting of the provincial
legislative, but even the Albanian member, Mr. Sinan Hasani, reassured the collective
Presidency that the session should be convened, since all structures of the province
have voted for those (constitutional) changes. See in more detail in, Written Statement
of Serbia, April , -.
356 IV. Implications of Kosovo as a Precedent for Other Regions
of the internal right to self-determination,44 but it is without any doubt that even
under the present framework of public international law, minorities or peoples do
not yet have a legal right to autonomy.45 If we were to draw any contrary conclusion,
we would be then forced to argue that the same breach of international law could
be extended to similar cases. One of them would be Northern Ireland. In this case,
previously existing autonomy was revoked at the beginning of 1970s, and with the
exception of a short period in 1984, this territory was continually under the direct
rule of the British Government until 2006. And yet, apart from academic debates,
no argument in favor of Northern Irelands right to remedial secession was ever seri-
ously raised in the international political arena.46
More importantly, Serbia never actually completely quashed the autonomy of
Kosovo Albanians. What it did with the 1989 constitutional amendments was to
change what in comparative constitutional law and practice (even of socialist states)
seemed to be unprecedented competences of an autonomous regime within a larger
political unit. According to the 1974 constitutional arrangement, the institutions
of the Republic, which included provincial representatives as well, were responsible
only for the aairs in Serbia proper, while the provinces were ruled almost exclu-
sively by local institutions. Furthermore, even when exercising a limited number of
competences on the whole of its territory, the central state had to rely on the coop-
erative behavior of provinces in order for those measures to be eective. Lastly, if
provincial constitutions were contrary to that of the Republic, no legal mechanisms
existed that would ensure the latters primacy.47 The subsequently adopted 1990
Constitution of Serbia preserved the territorial autonomy of provinces and charged
local institutions with competences in the eld of education, culture, ocial use of
minority languages, public information, health and social protection, child care, en-
vironment and urbanism. Finally, the recently enacted 2006 Constitution of Serbia
stipulates that Kosovo shall exercise substantial autonomy (Preamble), the precise
b) The reference to the previous allegation is often coupled with the argument that
Kosovo Albanians were denied the right to participate in the political life of the
country. In its Written Statement, Switzerland, for instance, states that the people
of Kosovo can ... exercise a right of self-determination that is dierent from that of
the population of Serbia, grounding this claim in Crawfords thesis that such a situ-
ation can arise when the inhabitants (of the territories forming distinct political-
geographical areas) are arbitrarily excluded from any share in the government either
of the region or of the State to which they belong, with the result that the territory
becomes in eect, with respect to the remainder of the State, non-self-governing.49
This legal conclusion, thus, decisively depends on the prior establishment of the
fact that Albanians were arbitrarily excluded from both provincial and central
state institutions by the Serbian authorities. However, it seems that such a quali-
cation would be an overstatement. While there were instances of the Party cadre
substitution on the ethnic basis, what we actually witnessed was largely a voluntary
withdrawal of representatives of Kosovo Albanians. This happened, for instance, in
the case of the Provincial Assembly.50 This act was followed by the establishment of
the parallel Assembly of Kosova, which issued several declarations on the new sta-
tus of province, that were annulled by the Federal Constitutional Court.51 This was
the start of the formation of a complete structure of parallel political and societal
institutions for Kosovo Albanians.52 Hence, even though voluntary withdrawal from
the ocial institutions, as a result of political dissatisfaction, is a legitimate politi-
cal strategy, it can certainly not be qualied as an arbitrary exclusion of minority
representatives. On the contrary, the willful absenteeism of Albanian provincial rep-
resentatives can rather be qualied as a misuse of their constitutional rights, which
aected their responsibility in accordance with the generally accepted legal maxim:
Ibid. .
Switzerland draws the conclusion that Kosovo was in fact a non-self-governing territory
as dened by Crawford. Written Statement of Switzerland, , quoting James Craw-
ford, The Creation of States in International Law, nd Edition, (Oxford: Oxford Univer-
sity Press, ), .
This came in May as a reaction to the previous decision (terminated on April)
of the Presidency of the SFRY, presided by the Slovenian representative Dr. Drnovsek,
to introduce the state of emergency and to use the armed forces in Kosovo. It was only
after this move of Kosovo Albanians that the Serbian Assembly introduced the Decision
about the Existence of Special Circumstances on the Territory of Kosovo ( June ).
As a reaction to the Constitutional Declaration on Kosovo as a Self-standing and Equal
Federal Unit within the Federation (Confederation) Yugoslavia as an Equal Subject with
Other Units in the Federation (Confederation) issued on July , the Serbian As-
sembly two days later adopted the Law on Termination of the Kosovo Provincial As-
sembly.
Cf. Written Statement of Serbia, April , -.
358 IV. Implications of Kosovo as a Precedent for Other Regions
nullus commodum capere de sua iniuria (no one may derive an advantage from his
own unlawful acts).53
Kosovo Albanians implemented the same strategy at the central level. For ex-
ample, they persistently boycotted all ocial elections, starting with the very rst
parliamentary elections in 1990. At the same time, citizens belonging to this ethnic
minority, as well as their political organizations, could participate in all electoral
processes under the same conditions as other citizens and political parties. In addi-
tion, for the viability of the arbitrary exclusion argument it would be particularly
detrimental if one can present evidence that the exercise of participation rights of
Kosovo Albanians could have contributed to the fall of the regime which they per-
ceived as the source of their oppression. This chance was actually wasted in the early
days of Miloevis rule, in the 1992 republican and presidential elections. Miloevi
was confronted with the candidacy of the then Federal Prime Minister, a pragmatic,
US-based businessman, Mr. Pani, who was backed by all relevant Serbian opposi-
tion parties. In a specially convened, behind the scenes meeting, one of the ministers
from Panis government tried to persuade one of the political leaders of Kosovo
Albanians, Mr. Fehmi Agani, to support the Federal Prime Minister. He received a
fair and outright answer, that the real goal that Albanians were interested in inde-
pendence could be far more easily achieved with Miloevi in power.54
c) The third group of facts supporting the argument in favor of Kosovo Albanians
right to remedial external self-determination concerns large-scale violations of fun-
damental human rights perpetrated by the Serbian authorities. To begin with, it is
very hard to fully grasp into the human rights situation of a part of a country/popu-
lation without placing it within the larger historical and political picture. This is,
unfortunately, what all pro-Kosovo independence written submissions to the Court
do. When faced with the problem of explaining the fact that, at the beginning of
1990s, some illegal Albanian political institutions were established, a parallel school-
ing system was organized, that even the boycott of ocial medical care facilities
was encouraged, and eventually the series of terrorist acts were instigated, these
submissions simply pick out the most convenient time framework and then present
Without any doubt, this response by Miloevis regime was at times overtly
brutal and caused numerous blatant violations of the fundamental human rights of
Kosovo Albanians. However, as virtually all human rights reports of the Special Rap-
porteur of the UN Commission of Human Rights testify, the human rights situation
before the NATO bombing was rather dire in the whole country and not only in the
province. While not challenging the widely documented record of ethnically moti-
vated discrimination and state brutality against members of the Albanian minority
in Kosovo, one cannot overlook the fact that, towards the end of 1990s, the regime
was increasingly relying on means of coercion and intimidation in its ght against
various enemies.61
As many have expected, the situation in Kosovo completely deteriorated with
the intensication of activities of the terrorist Kosovo Liberation Army (KLA) and,
particularly, after the provoked NATO campaign, leading to the forcible expulsion
and deportation of a large number of Kosovo Albanians.62 No wonder, thus, that sev-
eral written submissions took the quotation from the 2009 ICTY Trial Chambers
decision in Milutinovi et. al. case as the crucial argument in favor of the Kosovo
Albanians right to remedial secession.63 If facts from this period (mid-1998-1999)
are not contestable anymore, one may still challenge the legal conclusion the right
of Kosovo Albanians to exercise the remedial right to secession in 2008. If such a
May . http://www.minorityrights.org/admin/Download/pdf/MRGKosovoReport.
pdf. Elsewhere I argued that if Kosovo Albanians shall exercise the remedial right to
secession on the account of the prior gross human rights violations, then territorially
concentrated Serbs in the northern part of province shall have the same right, on the
account of similar atrocities committed by the provincial majority in last ten years, and
particularly in March . Miodrag Jovanovi, Final Status for Kosovo Should We
really be Petried With the Partition Option? in Sovereignty and Diversity, eds. Mio-
drag Jovanovi and Kristin Henrard (Utrecht: Eleven, ), -.
For example, in the report of the Special Rapporteur of the UN Commission of
Human Rights, it is said: It should be noted that cases of police abuse are not a prob-
lem exclusively associated with the volatile situation in Kosovo. Serious cases of ill-
treatment by the police were recorded, e.g. during winter demonstrations in Belgrade
and elsewhere in -, and later in connection with street protests in Belgrade on
September and October , in reaction to the ousting of the citys mayor, Mr.
Zoran Djindjic, and other controversial acts. A large number of people were injured and
some arbitrarily detained when police violently dispersed demonstrators. UN Doc. E/
CN.// (), .
As put by Ignatie, this human rights intervention, when it came in March , then
unleashed a genuine human rights disaster. Michael Ignatie, Human Rights as Politics
and Idolatry (Princeton and Oxford: Princeton University Press, ), .
In the decision that covers the period from mid- and , it is inter alia stated that
[t]hrough a widespread and systematic campaign of terror and violence, the Kosovo Al-
banian population was to be forcibly displaced both within and without Kosovo, with
the aim of establishing a more balanced demographic situation. See, e.g. Written State-
ment of the Kingdom of the Netherlands, April , . Written Statement of the
United States of America, April , . Written Statement of the United Kingdom,
April , . Written Statement of Norway, April , .
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 361
right was grounded in the irremediably oppressive64 behavior of the central state,
one would expect it to be activated and recognized by international community im-
mediately in 1999. As is well known, not only that this has not happened, but the SC
Resolution 1244 explicitly conrmed the territorial integrity of the Federal Republic
of Yugoslavia (to be eventually succeeded by Serbia). Consequently, one can indeed
hardly explain why the right to remedial secession of Kosovo Albanians would be
triggered a decade later, when the province enjoyed the substantial autonomy both
under the UN administration and the new constitution of Serbia, which since 2000
has been an entirely democratic state with a solid record of protection of fundamen-
tal human and minority rights.65
To sum up, regarding the withdrawal of political autonomy allegation, it was dem-
onstrated that neither the autonomy of Kosovo was completely abolished, nor any
reduction of competences of the provincial authorities could at the time be qualied
as the breach of international law. As for the denial of participation rights allegation,
it was revealed that Kosovo Albanians political strategy of voluntary withdrawal
from and boycott of ocial institutions cannot amount to the arbitrary exclusion
(Crawford) of minorities from the political life of country. With respect to the large-
scale violations of fundamental human rights allegation, it was shown that if the in-
tensity of infringement had been such as to activate the right of Kosovo Albanians to
remedial secession, then this would have been acknowledged by international com-
munity already in 1999 when the de facto power of the Serbian state was suspended
in the province.
Finally, even if the mentioned right of Kosovo Albanians can be grounded in
these three groups of facts, and, in particular, in the last one, the complete Human
Rights Violation Argument would support the unique case thesis if and only if no
case comparable to that of Kosovo exists elsewhere in the world. Once again, this
conclusion would be very hard to sustain. Take, for example, the case of the province
Aceh in Indonesia. It is widely acknowledged that the protracted conict between
the Government of Indonesia (GoI) and the secessionist Free Aceh Movement (Ger-
akan Aceh Merdeka, GAM) constitutes one of the longest and bloodiest conicts in
Southeast Asia.66 The 1999 Amnesty International Report sheds light on the nature
of this conict, by saying:
Aceh was classied as an Area of Military Operation (Daerah Operasi Militer, DOM)
from 1990 to August 1998. The DOM status was used to justify counter-insurgency op-
Despite certain positive internal political dynamics in 2005, the annual report of
the same international non-governmental organization was no less dramatic: The
downgrading in May of the military emergency to a civil emergency had little impact
on the human rights situation. Cases of extrajudicial executions, arbitrary detention,
torture, sexual violence and destruction of property continued to be reported.68
Irrespective of this disastrous legacy of the central governments politics towards
its minority, on 15 August, 2005, the GoI and GAM signed a peace agreement in
Helsinki, referred to as the Memorandum of Understanding (MoU). In the pre-nego-
tiating phase, GAM insisted on nothing less than independence, but eventually the
MoU, inter alia, foresees: a new Law on the Governing of Aceh (without using the
terms self-government or special autonomy), the right to form local political parties
in Aceh, direct democratic elections in Aceh in 2006 (Head of Aceh Administra-
tion and other elected ocials) and 2009 (Aceh Legislature) and a share of 70 of
revenues from hydrocarbon deposits in Aceh. The MoU emphasizes that Indonesia
remains a unitary country.
As indicated in one report on this document: The MoU reects a strong willing-
ness from both sides to make compromises, insofar as it agrees on the autonomous
nal status of Aceh within the Republic of Indonesia; allows GAM transformation
and political participation; agrees the force level for the Indonesian troops to remain
in Aceh, with its main responsibility to uphold external defense of the province;
agrees to focus on building condence and trust, before taking on the problems of
human rights abuses.69
Kosovo is a unique situation, because NATO was forced to intervene to stop and then re-
verse ethnic cleansing. The Security Council authorized Kosovo to be ruled eectively by
the United Nations, not by Serbia. UN Council Resolution 1244 also stated that Kosovos
nal status would be the subject of negotiation. Those conditions do not pertain to any of
the conicts that are usually brought up in this context. Its not applicable to Abkhazia,
or South Ossetia, or Transdniester. Nor is it applicable to Chechnya or to any separatist
conicts in Europe.70
Council on Foreign Relations, Serbs Urged to Accept Kosovo Plan to Gain European
Future, Interview with Daniel S. Fried. Accessed June . http://www.cfr.org/pub-
lication/.
Interview with Mr. Ahtisaari, CNN, December . Accessed June . www.
youtube.com/watch?v=rHvpgj-ns-Mandfeature=related. Written Comments of Serbia,
July , .
This term was rst coined by Nicholas J. Wheeler in his book Saving Strangers: Humani-
tarian Intervention in International Society (Oxford: Oxford University Press, ).
Ignatie notes that: [t]he Kosovo Liberation Army committed human rights abuses
against Serbian civilians and personnel in order to trigger reprisals, which would in
turn force the international community to intervene on their behalf. Ignatie, note
above, .
364 IV. Implications of Kosovo as a Precedent for Other Regions
page dedicated to the NATOs role in relation to the conict in Kosovo, it is stated
that the rst objective of the Alliance was a veriable stop to all military action
and the immediate ending of violence and repression. In providing the historical
background to the operation, one of the crucial dates is 20 March 1999, when the
OSCE Kosovo Verication Mission was withdrawn from the region, having faced
obstruction from Serbian forces to the extent that they could no longer continue
to fulll their task.74 According to the testimony of the retired general of the Ger-
man Bundeswehr, Heinz Loquai, who was a member of the OSCE mission in the
province, [t]he actual situation in Kosovo does not support this rationale, however.
For example, the OSCE reports on 18 March: the situation in the region remains
generally tense, but calm. On this day the OSCE carries out 120 patrols with no
diculty.75 The very OSCE monthly report for the period from 20 February to 16
March 1999 referred to no more than twelve incidents of obstruction of the Mission
by the Serbian military and police, which can hardly imply the conclusion that the
Serbian government decided to openly confront the Mission.76 This simply means
that the political decision to intervene was already taken irrespective of the factual
situation on the ground.
One of the triggering events, which occurred on 15 January 1999 and sped up the
preparation for the military intervention, came subsequently to be known as Raak
massacre. Without going into the background and details of this case,77 it raised
some serious doubts with respect to the established facts, and yet, it was largely ex-
ploited in both local and international media to mobilize public in the intervening
countries for the radical course of action. Dierent actors operated with dierent
gures of the victims, whether any of them were women and children, whether they
were civilians or combatants, and whether they were killed in a battle or were ex-
NATOs role in relation to the con ict in Kosovo. Accessed June . http://www.
nato.int/kosovo/history.htm.
Heinz Loquai, Kosovo A Missed Opportunity for a Peaceful Solution to the Con-
ict? OSCE Yearbook (): .
Heinz Loquai, Der Kosovo-Konikt Wege in einen vermeidbaren Krieg (Die Zeit von
Ende November bis Mrz ) (Baden-Baden: Nomos, ), .
This small village, with no more than inhabitants, was one of the strongholds of
the terrorist KLA. During , the KLA conducted a number of illegal actions in the
area, including kidnappings and arson attacks and in the rst weeks of January ,
they mounted attacks on Serbian police posts in the neighboring municipalities, killing
four Serbian policemen. In response, Yugoslav and Serbian security forces established
a security cordon in the immediate area of the attacks and around Raak and its neigh-
boring communities. On January, reports were received by the Kosovo Verication
Mission of civilians being killed in Raak. OSCE monitors access was refused and they
watched the ghting from a nearby hill. When they later, in the afternoon, gained access
to the village, they found one dead man and ve injured people and received the report
of twenty men being taken away by the Yugoslav security forces. The Verication Mis-
sion returned next morning, escorted by human rights experts, and found bodies.
See ibid. -.
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 365
ecuted and massacred.78 Western politicians, nonetheless, did not hesitate to inten-
tionally use the inamed rhetoric. Hence, President Clinton referred to the victims
as innocent men, women and children (that) were taken from their homes to a gully,
forced to kneel in the dirt and sprayed with gunre., the then US Foreign Secretary,
Madeleine Albright, spoke of dozens of people with their throats slit, while the
German Foreign Minister, Fischer, and some media claimed that the dead at Raak
had been civilians, which were even mutilated (e.g. eyes gouged out) or executed as
they lay.79 NATO, for its part, classied as the established fact the massacre of
over 40 people in the village of Racak.80
These qualications are, however, in stark contrast with the EU forensic expert
teams ndings. This team was not able to determine either the manner of death,
or to establish a chain of events verifying that the 40 bodies they were given to
investigate even came from the Raak site. In any case, the report did not contain
any evidence of torture, deliberate mutilation or a massacre.81 Furthermore, ten
years after the intervention, the leader of the team, forensic dentist Helena Ranta,
reveals in her autobiography that ocials of the Ministry for Foreign Aairs tried to
inuence the content of the report. In that respect, she also mentions that William
Walker, the head of the OSCE Kosovo monitoring mission, broke a pencil in two and
threw the pieces at her when she was not willing to use suciently strong language
about the Serbs.82
The NATO military intervention in Kosovo was taken without the Security
Councils authorization, but it was often justied as a necessary step dictated by rea-
sons of political morality. This argument decisively depended on a full and impartial
Loquai points to the fact that the OSCE Mission and the EU mandated team of Finnish
pathologists determined the toll of victims. They both reported that one woman was
among victims, but unlike in the OSCE report, the pathologists report had no mention
of one child. On the other hand, William Walker, the head of the Mission, spoke of
victims (three women and one child); Joshka Fischer in his letter to Miloevi referred
to victims, including women and children. The same gure was found in the Human
Rights Watch report, which specied that nine victims were KLA soldiers, at least two
of victims were women and one of them was a twelve years boy. Ibid. , footnote .
Quoted from Brendan Stone, The US-NATO Military Intervention Triggering Eth-
nic Conict as a Pretext for Intervention. Accessed May . http://www.globalre-
search.ca/index.php?context=va&aid=.
Hence, this information can be found at the NATO web page on Kosovo in the rubric
Facts and gures. Accessed September . http://www.nato.int/kosovo/history.
htm.
J. Rainioa, K. Lalu, and A. Penttila, Independent Forensic Autopsies in an Armed Con-
ict: Investigation of the Victims from Racak, Kosovo, Forensic Science International
: (): -. In the separate investigation, a Byelorussian forensic team came to
the conclusion that there were no traces of the execution performed from close vicinity.
Loquai, note above, , footnote .
Helena Ranta: Foreign Ministry tried to inuence Kosovo reports. Accessed April
. http://www.hs./english/article/Helena+Ranta+Foreign+Ministry+tried+to+inu
ence+Kosovo+reports/.
366 IV. Implications of Kosovo as a Precedent for Other Regions
establishment of facts which, in this case, were often used in a discerning and ma-
nipulative manner.83 Taking all aforementioned into account, one can hardly assess
the situation on the ground in the early months of 1999 as an unparalleled case of
supreme humanitarian emergency. The fact that the humanitarian intervention
was undertaken in Kosovo and not in same other cases is, thus, not conclusive evi-
dence that Kosovo is a unique case, but rather that humanitarian reasons are used
selectively.84 And, in Chinkins words, selectivity undermines moral authority. She
notes that the commitment to human rights that humanitarian intervention sup-
posedly entails does not mean equality of rights worldwide, insofar as the message
is constantly being sent that human rights of some people are more worth pro-
tecting than those of others. For instance, [m]ilitary intervention on behalf of the
victims of human rights abuses has not occurred in, inter alia, Sudan, Afghanistan
or Ethiopia. It was woefully inadequate and delayed in Rwanda.85 Consequently, the
NATO intervention in Kosovo can in no way sustain the unique case thesis.
I move now to the argument that the NATO intervention could be perceived as a
part of the UN-promoted responsibility to protect framework (R2P).86 According to
Ahtisaari, this interpretation would in turn imply that Serbia shall be permanently
deprived of the title to rule the province. The rst problem with this statement is
that it presumes that, with the adoption of the R2P principle, the 2005 World Sum-
A article in The Guardian points exactly in that direction: The nal toll of civil-
ians conrmed massacred by Yugoslav forces in Kosovo is likely to be under ,, far
short of the numbers claimed by Nato governments during last years controversial air
strikes on Yugoslavia... They talked of indiscriminate killings and as many as ,
civilians missing or taken out of refugee columns by the Serbs. The fact that far fewer
Kosovo Albanians were massacred than suggested by Nato will raise sharp questions
about the organisations handling of the media and its information strategy. Serb Kill-
ings Exaggerated by West, The Guardian, August . Accessed June .
http://www.guardian.co.uk/world//aug//balkans. This led Foley to state that
Kosovo set a precedent of western politicians lying to the public in order to justify the
war and then lying about its causes and consequences. Conor Foley, The Thin Blue Line
How Humanitarianism Went to War (London: Verso, ), . Cf. Jrgen Elssser,
Kriegslgen Vom Kosovokonikt zum Milosevic-Prozess (Berlin: Kai Homillius Verlag,
).
The same Guardian article raises doubts about the motives for military intervention:
The exhumation of less than , bodies is sure to add fuel to those who say Natos
intervention against Yugoslavia was not humanitarian and that it had other motives
such as maintaining its credibility in a post-cold war world. Others say Natos air strikes
revealed a grotesque double standard since western governments did nothing when
hundreds of thousands were being massacred in Rwanda. Serb Killings Exaggerated
by West. Ibid.
Christine M. Chinkin, Kosovo: A Good or Bad War? The American Journal of
International Law (): .
The RP principle was initially developed by the International Commission on Inter-
vention and State Sovereignty (ICISS) (established by the Government of Canada) in the
December report The Responsibility to Protect. Accessed February . http://
www.iciss.ca/pdf/Commission-Report.pdf.
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 367
mit Outcome somehow ex post facto legitimized the 1999 NATO intervention in
Kosovo. This is, however, highly improbable, since this document not only contains
no reference to the previous instances of humanitarian intervention, but it also spe-
cically urges for collective action through the Security Council.87 Moreover, in
the follow-up debate on the R2P concept, organized in the General Assembly in July
2009,88 Edward C. Luck, Special Adviser to the Secretary General, explicitly stated:
This is not 1999. Ten years ago the Assembly addressed the concept of humanitarian
intervention and found it wanting. Unilateral armed intervention under the guise
of humanitarian principles was and is seen as morally, politically, and constitu-
tionally unacceptable. That is not the UN way.89 He further stressed that the debate
should dispel, some of the myths that have clung to R2P like so many unwanted
barnacles from an earlier time and place, one of which is the old caricature that
R2P is another word for military intervention, when it seeks the opposite: to dis-
courage unilateralism, military adventurism, and an overdependence on military
responses to humanitarian need.90 If this statement is not to be read as a full-edged
condemnation of the NATO intervention in Kosovo, it is at least to be seen as a step
towards discontinuity with the previous practice, established in 1999.
Finally, Ahtisaaris statement raises a far more fundamental dilemma what
should be the ultimate purpose of humanitarian interventions? In other words,
what should have been the nal objective of the Kosovo intervention other than the
one mentioned by Fried himself reversing ethnic cleansing? In the August 1999
speech, the then US Deputy Secretary of State, Strobe Talbott, clearly emphasized
this point by saying:
[W]e have suspended Belgrades powers as the administering authority over the province.
But that does not mean we support Kosovos independence. Quite the contrary, we feel
that secession would give heart to separatists and irredentists of every stripe elsewhere
in the region. Most of all, secession would encourage proponents of Greater Albania a
single state stretching across the Balkan peninsula from Albania proper to northwestern
The principle of responsibility to protect was summarized in the following way: Clear
and unambiguous acceptance by all governments of the collective international re-
sponsibility to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity. Willingness to take timely and decisive collective action for
this purpose, through the Security Council, when peaceful means prove inadequate and
national authorities are manifestly failing to do it. This principle is contained in paras.
and of the nal document of the World Summit. UN Doc. A/RES// (
September ). See, World Summit Outcome. Accessed March . www.
un.org/summit.
This debate preceded the adoption of GA Resolution, which rea rms the adopted
principles and [d]ecides to continue its consideration of the responsibility to protect.
UN Doc. A/RES// ( September ).
Edward C. Luck, Special Adviser to the Secretary General, Remarks to the General As-
sembly on the Responsibility to Protect (RP), New York, July , . Accessed
May . http://www.ipacademy.org/images/pdfs/luck_ga_statementjuly.pdf.
Ibid. .
368 IV. Implications of Kosovo as a Precedent for Other Regions
Macedonia, with its own sizeable ethnic Albanian population. Greater Albania would be
no less anathema to regional peace and stability than Greater Serbia91
The fact that the United States decided to radically change this position and eventu-
ally recognize the unilateral act of Kosovos independence speaks only of the con-
sistency of the US foreign policy, and not of the transformation of the very principle
of humanitarian intervention. Concerning this principle, Ignatie points out that:
[b]oth our human rights norms and the UN Charter outlaw the use of military power for
territorial aggrandizement or occupation. Hence our military interventions are intended
to be self-limiting. We are intervening not to take over territory but to bring peace and
stability and then get out; our mandate is to restore self-determination, not to extinguish
it.92
US Deputy Secretary of State Strobe Talbott, Address at the Aspen Institute, August
. Accessed May . http://www.freeserbia.net/Documents/Kosovo/Talbott.
html.
Ignatie, note above, . Mllerson also points out that: the use of force for humani-
tarian purposes, if at all considered lawful, has to be limited to those purposes and must
not to go beyond them. Rein Mllerson, Precedents in the Mountains: On the Parallels
and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia, Chinese Journal
of International Law (): .
Interview with Mr. Ahtisaari, CNN, December .
As put by Hilpold: [t]he special circumstances characterizing the administration by
UNMIK render the whole situation totally particular. Peter Hilpold, What Role for
Academic Writers in Interpreting International Law? A Rejoinder to Orakhelashvili,
Chinese Journal of International Law (): .
Rice, note above.
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 369
For the past eight years, Kosovo and Serbia have been governed in complete separation.
The establishment of the United Nations Mission in Kosovo (UNMIK) pursuant to reso-
lution 1244 (1999), and its assumption of all legislative, executive and judicial authority
throughout Kosovo, has created a situation in which Serbia has not exercised any govern-
ing authority over Kosovo. This is a reality one cannot deny; it is irreversible.96
Using MacCormicks terminology,97 one might notice that the rst part of this ar-
gument refers to the operative facts (immense involvement of the UN), while the
second one concerns the normative consequences (recognition of the new reality
in the form of the right to independent statehood).
As for the operative facts part of the argument, rst, it should be borne in mind
that currently there are various forms of the United Nations involvement in dier-
ent parts of the world.98 Some of these missions include heavy military presence of
the UN peacekeeping troops (e.g. United Nations Interim Force in Lebanon, UNI-
FIL, which currently has 12,133 military personnel, or United Nations Mission in the
Sudan, which at the moment has 9,955 total uniformed personnel, including 8,806
troops, 477 military observers and 672 police ocers), while in some cases the UN
bodies and representatives decisively aect the civilian aairs of the respective pol-
ity (e.g. UN High Representative for the Implementation of the Peace Agreement on
Bosnia and Herzegovina). Furthermore, the UN involvement does not amount only
to the immediate presence military and/or civilian in certain areas, but also in
the active deliberative engagement of the relevant UN bodies in an attempt to con-
tribute to the solving of some conict situations around the world.
On the other hand, could one really qualify the United Nations Mission in Koso-
vo (UNMIK) as unprecedented in terms of the period of engagement?99 I would say
hardly. For instance, United Nations Peacekeeping Force in Cyprus (UNFICYP) was
established in 1964 to prevent a recurrence of ghting between the Greek Cypriots
and Turkish Cypriots and to contribute to the maintenance and restoration of law
and order and a return to normal conditions. Though substantially decreased in
number (currently, 924 total uniformed personnel, including 856 troops and 68 po-
lice; supported by 40 international civilian personnel and 111 local civilian sta ), this
mission is nevertheless still active on this divided island. As for other aspects of the
UN involvement in the Cyprus frozen conict, it should be added that from 1964 un-
til 2009, there were 129 UN Security Council Resolutions and a number of General
Assembly resolutions, including some on missing persons and human rights. Finally,
on 24 April, 2004, the peoples of Cyprus were asked to choose between ratifying and
rejecting a 5th revision of the United Nations proposal to settle the Cyprus dispute,
which is widely known as the Annan Plan for Cyprus. However, the plan failed due
to the rejection of the Greek Cypriots, who largely (75,83 ) voted against it.
Following the reasoning of those who argue in favor of Kosovos independence,
one might expect that 45 years of the UN involvement in Cyprus, during which the
central government did not have any control over its northern part, as well as the
uncooperative role of the majority community in the referendum process, would
trigger the reaction of the international actors in terms of attaching normative con-
sequences to these operational facts and recognizing the self-proclaimed indepen-
dence of the Turkish part. As we all know, this was not the case. On the contrary,
Cyprus even entered the European Union as a completely divided country.100
There is more, however, to the operative facts part of the argument in Kosovo
case. The UN involvement was immense not only in terms of the prolonged civil-
ian and military rule over the province, but also in terms of the engagement in the
negotiation process that was supposed to lead to a mutually acceptable agreement.
Since all the potentials for such an agreement were exhausted, the independence of
Kosovo became the only viable option (normative consequences). Ahtisaaris 2007
report, once again, illustrates this point:
[A]fter more than one year of direct talks, bilateral negotiations and expert consultations,
it has become clear to me that the parties are not able to reach an agreement on Kosovos
future status... Throughout the process and on numerous occasions, both parties have
rearmed their categorical, diametrically opposed positions: Belgrade demands Kosovos
autonomy within Serbia, while Pristina will accept nothing short of independence... It is
my rm view that the negotiations potential to produce any mutually agreeable outcome
on Kosovos status is exhausted. No amount of additional talks, whatever the format, will
overcome this impasse... The time has come to resolve Kosovos status. Upon careful con-
sideration of Kosovos recent history, the realities of Kosovo today and taking into account
the negotiations with the parties, I have come to the conclusion that the only viable op-
tion for Kosovo is independence, to be supervised for an initial period by the international
community.101
It is interesting to see what normative consequences the EU has drawn from the afore-
mentioned operative facts: In light of Protocol of the Accession Treaty Cyprus
as a whole entered the EU, whereas the acquis is suspended in the northern part of the
island (areas not under eective control of the Government of the Republic of Cyprus).
This means inter alia that these areas are outside the customs and scal territory of
the EU. The suspension has territorial eect, but does not concern the personal rights
of Turkish Cypriots as EU citizens, as they are considered as citizens of the Member
State Republic of Cyprus. Status of the Turkish Cypriot community under this regime
accessed February . http://ec.europa.eu/enlargement/turkish_cypriot_commu-
nity/index_en.htm.
UN Doc. S// ( March ), paras. -.
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 371
A caveat should be made with respect to the way these negotiations were conducted
by Ahtisaari, who managed in a highly similar case of Aceh to obtain the aforemen-
tioned mutually acceptable political settlement.102 In one of the interviews dedicated
to his engagement in Aceh, he said that [t]he question for the mediator is one of bal-
ance, how to best achieve a fair deal for both. He illustrated that point in the follow-
ing way: It was clear that the government was not oering independence and I had
to work out with GAM how they could obtain the things they wanted, which they
thought independence would have fullled.103 In an 2008 interview to CNN, Ahti-
saari explained how balance and fair deal were to be achieved in Kosovo negotia-
tions, where the Serbian government was also vehemently opposed to independence
of its province: Everyone knew that independence was coming. But (Serbian) Prime
Minister Kostunica and company behaved like they wouldnt have heard what was
told to them.104 One cannot escape the impression that Ahtisaari blatantly gave up
his very own principles of bona de mediating in Kosovo negotiations, by favoring
the maximalist demands of one side Kosovo Albanians.
Ahtisaaris plan eventually was not supported in the Security Council, and the
Contact Group proposed the formation of a Troika of senior mediators in order
to instigate a new round of negotiations. After 120 days of intensive consultations
with both parties, no mutually acceptable agreement was achieved. According to
the Written Statement of the USA, submitted to the Court, [w]ith the failure of the
Troika talks and the political process under Resolution 1244 to achieve an agree-
ment between the two parties, it essentially became a matter of when, not whether,
a declaration of independence by Kosovo would occur.105 Similarly, the UK Written
Statement stresses that Kosovos Declaration of Independence of 17 February 2008
was not a rush to judgment It came at the end of an exhaustive search for other
alternatives, conducted by thoughtful and expert interlocutors who explored every
other conceivable avenue that might have led to a dierent outcome. They found
nothing that could be sustainable.106
The question is, thus, whether such normative consequences the right of one
party to the negotiations to unilaterally declare the most preferable political out-
come can be drawn from the operative fact that two rounds of negotiations were
In fact, in the moment of negotiations, there were some considerable dierences be-
tween the two cases. Namely, the prospects for the full exercise of substantial minority
autonomy were far bigger in Serbia, which was categorized as Free Country in the
Freedom House annual report, than in Indonesia, which was classied as Partly
Free. See http://www.freedomhouse.org/template.cfm?page=&year=&count
ry=. Accessed June .
Delivering peace for Aceh, an interview with President MarttiAhtisaari. Accessed
May . http://www.c-r.org/our-work/accord/aceh/ahtisaari.php.
Interview with Mr. Ahisaari, CNN, December . Accessed June http://
www.youtube.com/watch?v=rHvpgj-ns-Mandfeature=related. Written Comments of
Serbia, July , .
Written Statement of United States of America, April , .
Written Statement of United Kingdom, April , .
372 IV. Implications of Kosovo as a Precedent for Other Regions
[c]ontrary to the mischaracterization of this argument by some, we do not assert that Ko-
sovo is to be judged by special rules of international law, or that it stood outside of the law.
We do not assert a sui generis legal rgime. The United Kingdoms contention is that, for
reasons of the conuence of very particular factual circumstances, the situation of Kosovo
does not create a precedent elsewhere.111
To say this, however, is to pinpoint a highly trivial thing, that no case is identical to
some other, in terms of its specic socio-historical facts and developments. Hence,
the real challenge stems from the argument advanced, for instance, by ten former
foreign ministers, who state that Kosovos unique factual situation has required a
creative solution, which should not create a precedent for other unresolved con-
icts [emphasis mine].
The purpose of this chapter was to demonstrate that the arguments commonly
used to support the unique case thesis cannot be sustained. It turned out that the
alleged peculiarities of the Kosovo case are, in Mllersons words, in the eye of the
beholder. That is, [w]hether certain situations, facts or acts can serve as precedents
depends to a great extent on whether one is interested in seeing them as precedents
or not.112 Moreover, from the point of view of an international legal scholar, it seems
incontestable that, in a consensual legal order, sui generis situations, that is, situa-
tions regulated on a footing deviating from the general legal framework, could be
viable only where pertinent States agree about that.113 If such an agreement is miss-
ing, as is obviously the case with Kosovo, than the mere political will of a group of
states to treat it as unique will have no binding force for those States that refuse to
see Kosovo as a sui generis entity. When argued [i]n political terms, action always
provokes reaction and sui generis entities could be multiplied,114 as immediately
demonstrated by subsequent developments in South Ossetia and Abkhazia.
Finally, there is an even more profound legal problem with the argument that the
proposed legal outcome of the Kosovo case (independent statehood) should not
serve as a precedent for other cases. It is completely contrary to the logic of prec-
edent to claim that no case could be of such a nature as to justify the implementation
of ratio decidendi of the already adjudicated case. Consequently, even if the legal
outcome of the Kosovo case cannot serve as a precedent for any other situation
in the world today,115 on the account that they dier in certain important aspects,
which is highly debatable,116 to exclude the possibility that such an outcome aect
some future cases would be not less then to deny it the character of a legal rule. As
the Cyprus representative had noted in the Oral proceedings, it was up to the Court
to dispel the potentially disastrous eects of such reasoning:
If the Court were once to say that it could in eect suspend the operation of the law in
relation to one case because of its particular characteristics, it would establish, in the
clearest possible terms, a precedent for suspending the operation of the law in relation to
any case because of its particular characteristics If the Court were to base its opinion
on a characterization of Kosovo as a situation sui generis, it would cease to be a court of
law and would take on the role of the other principal organs of the United Nations that
of deciding how a particular situation should be handled politically.117
In rendering its opinion, the Court seemed to disregard altogether the unique case
thesis, because no such reference can be found in the text.118 Does this, then, imply
that the Courts opinion indeed sets some dangerous precedent for similar cases
around the world? Not necessarily so, because, as we saw, the Court had found it-
self not invited to address all those intricate legal issues that triggered an unprec-
edented world interest in this case. However, it is yet to be seen what will be legal
and political implications of some of the Courts contentious ndings, which are
of rather general character, such as the conclusions that the scope of the principle
of territorial integrity is conned to the sphere of relations between States, and,
hence, does not concern non-state actors, including rebellion by ethnic minorities;119
that general international law contains no applicable prohibition of declarations of
independence;120 or, that persons who acted together in their capacity as represen-
tatives of the people of some territory under the UN interim regime of governance
are not bound to act within the framework of powers and responsibilities established
to govern the conduct of some provisional institutions.121
All this, on the other hand, will most probably not signicantly aect the further
usage of the political rhetoric of the unique case thesis in the persuasion strategy
of those states that recognized Kosovo as an independent state. The Kosovo case is
thrown back again to the global political arena, where it is supposed to be settled
by political, rather than legal merits, not least due to the Courts lack of courage to
tackle some substantive issues around which parties to the dispute centered their
key legal arguments.
SNEANA TRIFUNOVSKA
1 Introduction
In many respects Kosovo is a unique case in the post-Second World War Europe. It
is an example of the creation of an independent state as a result of joint exercise on
the international level of political and military power through individual and col-
lective actions of the Western states and as such it is being referred to as a guided
independence.1 Immediately after the Declaration of Independence by the Kosovo
Assembly in February 2008, one of the major concerns was whether, to which extent
and what kind of impact it could have on the future claims for independence and on
the perception of the international community regarding the present status of inter-
national law relevant for the issues of protection of minorities, self-determination
and secession. This chapter will discuss a frequently raised question of whether or
not Kosovo presents a precedent. It is the position of the author that Kosovo is not
a precedent, but, as the majority of authors agree, it will have certain impact on the
future self-determination struggles and on the perception of individual states on
this. This view remained unchanged after issuing of the rather peculiar ICJ Advisory
Opinion Accordance with International Law of the Unilateral Declaration of Inde-
pendence in Respect of Kosovo on 22 July 2010,2 which, is unlikely to be remembered
as one of the Courts better attempts to articulate and clarify the law.3
In the case of Kosovo the term guided independence has a twofold meaning: (a) it can
apply to the period before the declaration of independence and to the actions of the UN
and the Western states leading to the independence, and (b) it can be used for the post-
declaration period to denote a large-scale international (EU-NATO-UN) involvement,
in supervising and supporting Kosovo institutions.
See Accordance with International Law of the Unilateral Declaration of Independence
in Respect of Kosovo (Advisory Opinion) ICJ ( July). Accessed September
. http://www.icj-cij.org/docket/ les//.pdf.
Curtis Doebbler, The ICJ Kosovo Independence Opinion: Uncertain Precedent, Jurist,
Legal News and Research. Accessed September . http://jurist.org/forum///
the-icj-kosovo-independence-ruling-an-uncertain-precedent.
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 375-393.
376 IV. Implications of Kosovo as a Precedent for Other Regions
The independence of Kosovo is part of this framework and can thus in no way be
considered to set a precedent.7
According to the United States, Kosovo is clearly a special case and has been
treated as such in the UN since 1999. The violent and non-consensual break-up of
Yugoslavia, Miloevis policies of repression and ethnic cleansing, which led the
international community to act; the adoption of Security Council Resolution 1244
(1999) under which Serbia has long been prevented from exercising normal govern-
mental authority in Kosovo; and the United Nations-facilitated political process to
help determine Kosovos future status are all factors that make the situation in Koso-
vo dierent from other conicts or situations and one that does not set a precedent
for other regions.8 For all the above mentioned reasons the path taken with regard
to Kosovo will not be followed in other cases unless strict conditions for the exercise
of external self-determination are ful lled.
Russia and China, joined by some other states, on the other hand, claim that
Kosovo has set a precedent aecting the basic foundations of international legal sys-
tem and the future practice.9 According to Russia, which continued to recognize
Serbia within its internationally recognized borders, the Declaration of Indepen-
dence by the local Assembly of Kosovo was a blatant breach of the norms and prin-
ciples of international law and above all of the UN Charter that undermined the
foundations of international relations.10 Similarly, the Chinese Ambassador to the
United Nations expressed, grave concern, over Kosovos Unilateral Declaration of
Independence and pointed out the signicance which it might bear on the peace,
security and stability of the Balkan region and even Europe at large,11 while accord-
ing to the President of Serbia, this arbitrary decision [of the Kosovo Assembly] rep-
resents a precedent which will cause irreparable damage to the international order
[and] runs afoul of the rst principle of the Charter of the United Nations the
sovereign equality of all Member States in the most direct way.12
One should have hoped that the ICJ would in its Advisory Opinion of 22 July
2010, bring more clarity in determining whether and to what extent both the Kosovo
Declaration of Independence and its rapid acceptance by some Western states have
rewritten the rules of international law. However, the hesitant position taken in the
Advisory Opinion proved that the ICJ was not willing to play any instrumental role
in this respect.
Aidan Hehir, Independence, Intervention and Great Power Patronage: Kosovo, Geor-
gia and the Contemporary Self-Determination Penumbra, Amsterdam Law Forum :
(). Accessed August . http://ojs.ubvu.vu.nl/alf/article/view//.
Ilana Bet-El, A Bad Looking Model, The Guardian, April . Accessed August
. http://www.guardian.co.uk/commentisfree//apr//abadlookingmodel.
Ibid.
Chapter 12, Sneana Trifunovska The Impact of the Kosovo Precedent on Self-Determination Struggles 379
Martti Koskenniemi, The Lady Doth Protest Too Much Kosovo, and the Turn to
Ethnics in International Law, Modern Law Review (): .
Article of the North Atlantic Treaty, adopted in Washington in .
The Alliances Strategic Concept, Approved by the Heads of State and Government par-
ticipating in the meeting of the North Atlantic Council in Washington DC, April
, para. .
SC Resolution , UN Doc. S/RES/ ( March ).
380 IV. Implications of Kosovo as a Precedent for Other Regions
process established between the UN and NATO.20 Though it was claimed that the
operation was taken to support the relevant UN Security Council resolutions which
could be interpreted that there was some kind of implicit authorization, its primary
goal was to compel, an end to Serb-led violence in Bosnia and Herzegovina21 and
to diminish the Serb military capacity in order to enforce a peaceful solution (and
probably thereby to underpin the relevant Security Council resolutions). By the de-
struction of the main Bosnian Serb military strategic points, the way was paved to
the signing of the Dayton Peace Agreement in December 1995 and to the deploy-
ment of IFOR, a NATO-led military operation authorized by the UN Security Coun-
cil Resolution 1031 (1995). One of the important results of the Operation Deliberate
Force was that it, eectively ended the out-of-area debate that had dominated intra-
Alliance discussions on NATOs role since the end of the Cold War,22 and made
obvious its new character.
Therefore, the use of military force that took place four years later in the territory
of the Federal Republic of Yugoslavia, i.e. Serbia, was not completely a primeur for
NATO, however with regard to both reasons for (to halt the humanitarian catas-
trophe that was then unfolding in Kosovo23) and circumstances under which it took
place (clearly without previous Security Council authorization) it was completely
new. Notwithstanding its uniqueness this intervention should be considered rather
in the context of the on-going NATO transformation than a precedent. The 1999
Alliances Strategic Concept clearly reects the transformation of NATO from an
Alliance based on Article 51 of the UN Charter and strictly limited to the within
the area military activities/responses, into an Alliance which pursues, its policy of
preserving peace, preventing war, and enhancing security and stability, and which
seeks, in cooperation with other organizations to prevent conict or, should a cri-
sis arise, to contribute to its eective management, consistent with international
law, including through the possibility of conducting non-Article 5 crisis response
operations.24 In other words, in the event of crisis which in the assessment of
NATO might jeopardise Euro-Atlantic security and could aect the security of
its members, the Alliances military forces may be called upon to conduct crisis
response operations.25 The Strategic Concept, adopted at the 50th anniversary of
the NATOs creation that overlaps with the beginning of the military intervention in
See also Tarcisio Gazzini, The Changing Rules on the Use of Force (Manchester: Man-
chester University Press, ), -.
Accessed September . http://www.nato.int/cps/en/natolive/topics_.
htm.
Ryan C. Hendrickson, Crossing the Rubicon, NATO Review, Autumn , . Ac-
cessed September . http://www.nato.int/docu/review//issue/o print_au-
tumn_eng.pdf.
Accessed September . http://www.nato.int/issues/kosovo_air/index.html.
The Alliances Strategic Concept, Approved by the Heads of State and Government par-
ticipating in the meeting of the North Atlantic Council in Washington DC, April
, para. .
Ibid. para. .
Chapter 12, Sneana Trifunovska The Impact of the Kosovo Precedent on Self-Determination Struggles 381
Yugoslavia in April 1999, made clear that in the future military activities/operations
NATO would not necessarily need the UN authorization. So, one could agree that
though the NATO military operation in Kosovo (Operation Allied Force) in 1999
overshadowed the Operation Deliberate Force in 1995 the later may have contributed
more to NATOs post-Cold War transformation than any single other event.26 It is
also not a precedent in the sense that NATO will consider itself obliged to intervene
in the same manner in other similar situations. In the future NATO will maintain
this position of free choice and will continue to react dependent on the conditions
of each particular situation on a case-by-case basis though under more strict guide-
lines. The Recommendations on A New Strategic Concept of May 2010 mention
a number of such guidelines and/or criteria. Among them of importance are: the
extent and imminence of a danger a situation poses to Alliance members; the ex-
haustion or apparent ineectiveness of alternative steps to deal with a situation; the
readiness of partners to help in ensuring an eective and timely remedy to the prob-
lem at hand; the collateral impact on other NATO missions and needs, as well as the
foreseeable consequences of inaction.27
Similarly, one could also conclude that the impact of the NATO intervention on
the development of international legal rules on the use of force remains insigni-
cant. The fact that within NATO a consensus on intervention could be reached by
all (then 19) member states did not mitigate the international legal criteria allowing
the use of force. Only a limited state practice supports the claim that states might
resort to military action to enforce decisions taken by the Security Council to tackle
a threat to international peace and security even without being authorized by the
Security Council:28
In addition, in legal terms the NATO bombing in Yugoslavia could not produce any
benets to any party to the conict in Kosovo. This is because of the circumstances
and conditions under which it took place and the application of the general principle
of international law ex injuria non oritur (a wrongful act cannot become a source
of advantages). According to ICJ Judge, A.A. Canado Trindade, this principle is ap-
plicable to all grave breaches which took place in Kosovo, including the unwarranted
use of force in the bombings of Kosovo (and without Security Council authoriza-
tion) and causing numerous innocent victims in the civilian population, applies.30 In
his view, therefore, the Security Council resolution 1244(1999) could not be read as
endorsing wrongful acts of any origin and kind nor as taking advantage of them.31
However, one should note that, while in formal legal terms that might be so, in re-
ality NATO bombing was of a vital importance in creating the conditions under
which Security Council Resolution 1244 (1999) could have been taken, depriving the
Yugoslav authorities of governmental powers in Kosovo and, nally leading to the
declaration of Kosovo independence. It should also be observed that by its military
intervention in Yugoslavia NATO has not set a good example that will quickly be
forgotten. One can imagine that some other international organizations and states
could follow the example and, assert a similar right to use force, and perhaps in
circumstances where NATO and the rest of the international community do not
consider the use of force to have the moral justication that the general international
toleration of Operation Allied Force suggest existed in relation to Kosovo.32
As a matter of fact, Resolution 1244 (1999) did not contain any suggestion re-
garding the status of Kosovo. It neither implied that Kosovo should either continue
to be part of Serbia nor should it become an independent state. Nonetheless, from
the rearmation of the sovereignty and territorial integrity of the Federal Republic
of Yugoslavia one could expect that Kosovo would remain within the Serbian bor-
ders albeit with quite dierent and much larger autonomy and self-government. The
question on the status of Kosovo had to be settled through negotiations between
Serbia and Kosovo, which was, from November 2005 facilitated by the Secretary
Generals Special Envoy, Martti Ahtisaari. However, although many have diculty
in openly recognizing it, the wide-ranging powers of international administration,
where no role for the Yugoslav authorities was left, were leading only to one nal
solution and that was the independence of Kosovo. The mandate of the international
administration in Kosovo (and for that purpose also the mandate of international
administration in East Timor), did not only aim to establish peace in the region
but constituted, either clearly stated in or not, a prelude to statehood.40 According
to the UK Permanent Representative to the Security Council: [the new democratic
Government in Belgrade had] a duty to help resolve problems caused by Miloevi,
and they must accept that the legacy of Miloevis oppression and violence has made
it impossible for Kosovo to return to control by Belgrade.41 The concerted work of
the international community in building up governmental structures in Kosovo and
transferring governmental functions to the institutions of provisional government,
unavoidably led to the declaration of independence by the Kosovo Assembly: Koso-
vo has been an independent State in fact for some years. Moreover, there [seemed
to be] no alternative but to recognize that as a fact, and the [r]ecognition of Kosovo
was inevitable.42
With regard to the mandate and characteristics of the established international
administrations, Kosovo and East Timor are comparable cases in the sense that in
both the sovereignty of the parent states was aected. On the other hand, as above
pointed out, there are substantial dierences between the two situations. For centu-
ries East Timor had been a Portuguese colony and only for a period of 24 years (from
1976), as result of the Indonesian invasion, it was part of Indonesia. Therefore, unlike
Kosovo, East Timor should be seen as an uncompleted decolonization process for
which the right to external self-determination and independence is undisputed and,
[furthermore], the consent of Portugal and Indonesia as far as the nal status of
the territory and the transitional period administration parameters were concerned,
viting the Secretary General to plan and prepare for a UN transitional administration
in East Timor.
Antonia Zervaki, United Nations at Crossroads: International Administration of Ter-
ritories and Domestic Political Cultures, The Kosovo and East Timor Experience, Uni-
versity of Peloponnese, UNISCI Discussion Papers, No. (October ), .
UN Doc. S/PV. ( February ), .
Rafe Mair, Kosovo and Quebec, How our Balkan Decision may Haunt Us, TheTyee.
ca, April . Accessed September . http://thetyee.ca/Views////Ko-
sovoQuebec/>.
Chapter 12, Sneana Trifunovska The Impact of the Kosovo Precedent on Self-Determination Struggles 385
was given.43 For that reason there were also no big obstacles in the admission of
East Timor to the UN membership in 2002. The situation with Kosovo was dierent.
For centuries it was part of Serbia and considered to be its cradle: [T]he historical,
political and cultural basis of the conict did not constitute part of the late decolo-
nization process consequently, the use of the principle of self-determination as
institutionalized after the Second World War within the framework of the United
Nations was out of context. 44 In contrast to East Timor, the consent of Yugoslavia
for the setting and the deployment of international civil administration in Kosovo
was rather ambiguous, as it was achieved at the moment when NATO was still car-
rying out its military campaign.45
After having established these two administrations the UN seems not to be any
longer inclined to pursue a similar path. The UN Assistance Mission in Afghanistan
(UNAMA) set in March 2002,46 represents a substantial correction of increasing
aggregation of sovereign powers exercised in UN operations since the mid-1990s.47
However, in the terms of precedent, Security Council Resolution 1244(1999) is
nothing more than one of the decisions dictated by both the particular situation
in Kosovo and outside it, in Serbia and on the international level. Basically, for the
UN, as for NATO, it would be rather dicult to create a precedent. Each of the
cases considered by the Security Council is a specic case characterized by specic
circumstances. Its peacekeeping operations and all other missions are based on the
so-called adhocracy or ad-hoc policy. The same goes for the NATOs out-of area
activities. Such a policy enables these two organizations to provide for a response
in a manner which they deem adequate for the particular situation, but also to act
dierently in situations which might have notable similarities. Otherwise, it could
not be explained why the United Nations has not taken any steps with regard to,
for example, Aceh which has about 4 million (double of the one in Kosovo) large
population, as it has taken in Kosovo. This territory, called by some Indonesian
Kosovo48 has many similarities: there had been a protracted conict between the
Indonesian Government and the Free Aceh Movement which has been active since
the mid-1970s; while dealing with separatists in Aceh the Indonesian governmental
forces perpetrated large-scale human rights abuses, including extrajudicial execu-
tions, disappearances, torture and rape, imprisonment of peaceful activists, etc.,
that forced in July 1999 alone (at the same time when the NATO military interven-
tion in Kosovo terminated and the international administration was established)
more than 80,000 people to ee the violence. Some authors record that Indonesian
military crackdowns after 1998, including heavy military operations in 2001 and
2002, resulted in the killing of 2,000 people in 2001 and a likely equal number in
2002, in widespread destruction, and in over 100,000 people eeing their homes.49
One of the reasons why the United Nations has not reacted probably can be found
in the position of Western states and primarily the United States which, unlike the
case of Kosovo, was prepared to support the parent states, i.e. Indonesias territorial
integrity. It sought, to reassure post-Suharto leaders that the United States would
not repeat its East Timor policy of 1999 towards other parts of Indonesia where there
were separatist movements.50 Due to the Memorandum of Understanding signed
between the Government of the Republic of Indonesia and the Free Aceh Movement
in August 2005, at this moment there are no disturbances and the situation in Aceh
seems to be rather stable and peaceful.51
which was, hailed as a triumph for the East Bengalis human rights and their desire
for self-determination.54
It is self-evident that the Kosovos Declaration of Independence triggers a discus-
sion regarding the rules on external self-determination, the right to secession and
the impact of international recognition on the creation of new states. With regard
to secession international law also does not have clear rules that allow or prohibit
it. Its specic feature is that it, may exist as a fact, but it cannot be claimed as a
right or remedy.55 Similarly, self-determination established in the UN Charter as
a principle and in the two Human Rights Covenants (of 1966)56 as a right is also
dicult to grasp when it comes to its implementation. As observed by Rupert Emer-
son, [a]ny examination of self-determination runs promptly into the diculty that
while the concept lends itself to simple formulation in words which have a ring of
universal applicability and perhaps revolutionary slogans, when the time comes to
put it into operation it turns to be a complex matter hedged in by limitations and
caveats.57 Further on in the text, he rephrased this by saying: what is stated in big
print as in the reiterated UN injunction: All peoples have the right to self-deter-
mination is drastically modied by what follows in small print. Indeed, once the
major original exercise of self-determination has been undertaken, the small print
takes over and becomes the big print which establishes the new and far more restric-
tive guidelines.58
As noted by Koskenniemi the law has an obvious, reluctance to set up deter-
minate hierarchies concerning abstract forms of behaviour, its constant reference
to an appreciation of circumstances.59 This means that, like in Kosovo, it could be
expected also in other future cases that a solution will depend rather on particu-
lar circumstances rather than on the law. Supporters of the Kosovos Declaration
consider it to be a case with exceptional circumstances justifying its independence.
According to Daniel Fried: [s]eparatist may claim that Kosovo is a precedent, but
separatists existed for a long time. The fact is that Kosovo is not a precedent for other
conicts at all. Kosovo is a unique situation, because NATO was forced to inter-
vene to stop and then reverse ethnic cleansing 60 Already in June 1999, some two
weeks after NATO terminated its military intervention, Jonathan Tepermann asked
Ibid.
Christopher J. Borgen, Introductory Note to Kosovos Declaration of Independence,
International Law Materials (): .
Common Article of the International Covenant on Civil and Political Rights and In-
ternational Covenant on Economic, Social and Cultural Rights adopted in .
Rupert Emerson, Self-Determination, American Journal of International Law
(): .
Ibid.
Martti Koskenniemi, Hierarchy in International Law: A Scetch, European Journal of
International Law (): .
Interview with the Assistant Secretary of State, US Department, Daniel Fried, Council
on Foreign Relations, February . Accessed September . http://.../
search?q=cache:cKzpNVxqggJ:www.cfr.org/publication//serbs_urged_to_ac-
388 IV. Implications of Kosovo as a Precedent for Other Regions
himself: Did NATOs intervention rewrite the rules on self-determination? Has the
go-ahead been given to every ethnic group that wants to carve out its mini-state?61
And his answer was no, [i]f other separatists hope to qualify for similar NATO or
United Nations support, they will have to meet several strict conditions an unlike-
ly prospect. Before NATO stepped in, Kosovo had for a decade faced the worst kind
of oppression. It was stripped of its autonomy in 1989. Ethnic Albanians were denied
basic political and cultural rights, reduced to non-citizens. Passive resistance was
attempted and got nowhere. By the time the Kosovo Liberation Army (KLA) cranked
up its guerrilla war in 1998, every other form of dissent had been tried. In light of all
this, the fact that NATO eventually came to the Kosovars aid hardly establishes a
broad new precedent for radical self-determination.62
Regrettably, in its recently issued Advisory Opinion the International Court
of Justice did not shed any new light on the legal questions linked to the Kosovo
Declaration of Independence. The formulation of the question posed by the Gen-
eral Assembly to the Court (Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with interna-
tional law?63) was in the view of the Court: narrow and specic64. Accordingly, the
Court, decided to debate only the technical content of the declaration of indepen-
dence [and] avoided to rule on the essential issue [on the right to secession].65 This
approach has led to very interesting conclusions by the Court which: unfortunately
[entail] serious negative implications for the integrity of the Courts judicial function
and its role as a principal organ of the United Nations.66
As far as general international law is concerned the Court came only to a brief
conclusion that there is no applicable prohibition of declarations of independence
and accordingly the Kosovo Declaration did not violate general international law.67
This was not only disappointing to many but was also strongly criticized by some
members of the Court. Judge Simma claimed that: the Court could have delivered a
more intellectually satisfying Opinion, and one with greater relevance as regards the
international legal order as it has evolved into its present form, had it not interpreted
the scope of the question so restrictively. To treat these questions more extensively
would have demonstrated the Courts awareness of the present architecture of inter-
cept_kosovo_plan_to_gain_european_future.html+Daniel+Fried,+separatists+may+cl
aim+Kosovo+is+precedent&cd=&hl=nl&ct=clnk&gl=nl.
Johnatan Tepperman, Freedom for Kosovo Is Not a Dangerous Precedent, The
New York Times, June . Accessed September . http://www.nytimes.
com////opinion/iht-edjon..t.html.
Ibid.
GA Res. /, A/RES// ( October ).
Kosovo Opinion, para. .
The statement of the President of Serbia, Borislav Tadi, in his rst reaction to the ICJ
Advisory Opinion, July . Accessed July . http://www.b.net/eng/news/
politics-article.php?yyyy=&mm=&dd=&nav_id=.
Judge Skotnikov, Dissenting Opinion, Kosovo Opinion, para. .
Ibid. para. .
Chapter 12, Sneana Trifunovska The Impact of the Kosovo Precedent on Self-Determination Struggles 389
national law.68 In his view, by unduly limiting the scope of its analysis, the Court
has not answered the question put before it in a satisfactory manner. To do so would
require a fuller treatment of both prohibitive and permissive rules of international
law as regards declarations of independence and attempted acts of secession The
Court could have considered the scope of the question from an approach which does
not, in a formalistic fashion, equate the absence of a prohibition with the existence
of a permissive rule; it could also have considered the possibility that international
law can be neutral or deliberately silent on the international lawfulness of certain
acts.69 The way in which the Court dealt with the question of the General Assembly
leaves an impression that it did not dare to articulate and clarify the law on self-
determination and secession as it stands at the beginning of the 21st century and its
impact on the principles of territorial integrity and inviolability of boundaries. This
might be explained by the political sensitivity of the Kosovo Declaration of Inde-
pendence, the divided views on international plane and a possible impact which the
Courts opinion would have on particular situations and self-determination/seces-
sionist movements in the world.
Even more interesting is the conclusion drawn by the Court regarding the legality
of the Declaration of Independence in the view of Resolution 1244 (1999) which, as
special law or lex specialis vis--vis general international law, has primacy in appli-
cation in Kosovo. Resolution 1244 (1999), which has a binding force under Chapter
VII pursuant to Article 25 of the UN Charter, conferred to UNMIK all legislative
and executive authority with respect to Kosovo, including the administration of the
judiciary, exercised by the Special Representative of the Secretary General.70 In other
words it did not leave any room for creation of parallel structures and decision-mak-
ing outside the framework of the international administration and control, especial-
ly not those which would have international implications. Accordingly, if the inter-
national administration (UNMIK and the UN Special Representative) did properly
its job, it would not have been possible to adopt a declaration of independence by any
other than the legally established structure in Kosovo and, if it happened, such an
act should have been declared as illegal and void. However, the Special Representa-
tive did nothing to decline its legality. The Court explained that: [t]he silence of the
Special Representative of the Secretary-General in the face of the Declaration of
Independence of 17 February 2008 suggests that he did not consider that the Decla-
ration was an act of the Provisional Institutions of Self-Government designed to take
eect within the legal order for the supervision of which he was responsible. As the
practice shows, he would have been under a duty to take action with regard to acts
of the Assembly of Kosovo which he considered to be ultra vires.71 According to the
Court: [n]owhere in the original Albanian text of the Declaration (which is the sole
authentic text) is any reference made to the Declaration being the work of the As-
sembly of Kosovo. The words Assembly of Kosovo appear at the head of the Declara-
tion only in the English and French translations contained in the dossier submitted
on behalf of the Secretary-General.72 For these reasons, the Court took the view
that: the authors of the Declaration of independence of 17 February 2008 did not act
as one of the Provisional Institutions of Self-Government within the Constitutional
Framework, but rather as persons who acted together in their capacity as representa-
tives of the people of Kosovo outside the framework of the interim administration73
Remarkably enough, the fact that all international documents issued in the period
following the adoption of the Declaration of Independence clearly state that it was
adopted by the Assembly of Kosovo and that the Kosovo Assembly itself did not deny
that, had no inuence on the position of the Court.
There were some voices that by its Advisory Opinion the Court itself created
precedents that will have impact on other secessionist movements in the world. It
did so by giving an dubious interpretation that the Declaration of Independence was
lawful as it was not adopted by the Assembly of Kosovo (as one of the Provisional
Institutions of Self-Government in Kosovo) and that as such the Declaration was
not prohibited by general international law and thus was allowed. In his Dissenting
Opinion, Judge Koroma stressed that:
[i]nternational law does not confer a right on ethnic, linguistic or religious groups to break
away from the territory of a State of which they form part, without that States consent,
merely by expressing their wish to do so. To accept otherwise, to allow any ethnic, linguis-
tic or religious group to declare independence and break away from the territory of the
State of which it forms part, outside the context of decolonization, creates a very danger-
ous precedent. Indeed, it amounts to nothing less than announcing to any and all dissident
groups around the world that they are free to circumvent international law simply by act-
ing in a certain way and crafting a unilateral declaration of independence, using certain
terms. The Courts Opinion will serve as a guide and instruction manual for secessionist
groups the world over, and the stability of international law will be severely undermined.74
But, as a matter of fact and law, the Opinion of the Court is not binding and the
States will remain free to consider Kosovo as a unique, sui generis, case and not a
precedent:
Ibid. para. .
Ibid. para.
See Judge Koroma, Dissenting Opinion, ibid. para. .
Chapter 12, Sneana Trifunovska The Impact of the Kosovo Precedent on Self-Determination Struggles 391
cases of the late sixties, seventies and early eighties), thus conforming a pattern, in the his-
torical development of the Law of the United Nations. Others may appear rather unique,
also in the framework of the Law of the United Nations.75
cision of Spain is obviously determined by its own situation in Catalonia and the
Basque autonomous communities. Both of those have secessionist claims.
While India played decisive role in the creation of Bangladesh, today it is on the
opposite side strongly criticizing Kosovo independence. India also has to deal with a
number of secessionist and autonomist claims on its territory and for its self-protec-
tive purposes it feels pressed to take a dierent position towards self-determination
claims in other countries. Probably a major point of Indias concern is that a Kosovo
precedent could be used by Kashmir, which has been part of India since its indepen-
dence in 1947 and which, due to its militarization by India, suered a huge loss of
human lives during the last two decades. The Pakistani-Indian political and armed
conict over Kashmir has been under UN attention since 1948, however the issue
has not been solved yet.78 In the late 1990s, when Kosovo was in the focus of interna-
tional attention, Kashmir was described as one of the most dangerous regions in the
world. The administration of the newly elected US President, Barack Obama, has in
January 2009 identied Kashmir as one of the worlds hot spots (together with the
Balkans and the Golan Heights).79 Such a position by the US will probably give a new
impetus to international eorts to nd a solution to the question of Kashmir and in
that case Kosovo can serve as a useful comparison in some respects.
In addition, states like China, which is greatly concerned with Taiwan and Tibet,
do not intend to recognize Kosovo. With regard to Tibet, although Chinas legal
claim to the province is weak, its de facto control and exercise of power and force
is strong, which makes Tibet dicult to qualify for UN support similar to the one
given to Kosovo.80 In March 2008, by using force, China suppressed anti-Beijing
and pro-independence demonstrations. The international reaction to that was only a
mounting pressure on China to hold dialogue with the Dalai Lama. Obviously, hav-
ing strong interest in good relationship with China, states are very careful in deal-
ing with the claims of Taiwan and Tibet. So, for example, Bangladesh, not long ago
struggling for its own independence, expressed in March 2008 a clear opposition to
the Taiwans attempt to seek UN membership through a referendum.81 Similarly, the
United States which had a leading role in the independence of Kosovo, took a quite
Since January the UN has deployed a peacekeeping operation for the States Jam-
mu and Kashmir, the UN Military Observer Group in India and Pakistan (UNMOGIP)
to supervise the ceasere agreed between India and Pakistan. See SC Res. / of
April . It is the second oldest peacekeeping operation established by the United
Nations. See United Nations Peacekeeping Operations . Year in Review (New
York: Peace and Security Section, United Nations, Department of Public Information,
), .
Accessed September . http://www.indianexpress.com/news/obamas-envoy-to-
the-un-mentions-kashmir//.
See, Johnatan Tepperman, Freedom for Kosovo is not a Dangerous Precedent, The
New York Times, June . Accessed September . http://www.nytimes.
com////opinion/iht-edjon..t.html.
Embassy of the Peoples Republic of China in the Peoples Republic of Bangladesh,
March . Accessed September . http://bd.china-embassy.org/eng/xwdt/t
.htm.
Chapter 12, Sneana Trifunovska The Impact of the Kosovo Precedent on Self-Determination Struggles 393
dierent position with regard to Taiwan. Since the moment of formal recognition of
the Peoples Republic of China in 1979, it has not had any ocial diplomatic relations
with Taiwan. This all conrms the view that the right to independence and state-
hood remains in the political rather than legal realm.
Both, Abkhazia and South Ossetia declared independence from Georgia in and
, respectively.
Accessed August . http://english.pravda.ru/russia/kremlin/--/-
russia_ossetia_abkhazia-.
Christopher J. Borgen, Introductory Note to Kosovos Declaration of Independence,
International Law Materials (): .
Chapter 13 The Impact of Kosovo:
A Precedent for Secession in Georgia?
VAKHTANG VAKHTANGIDZE
1 Introduction
The right of self-determination creates one of the most complex problems in the eld
of international law. So far the numerous attempts to universally ascertain the exact
scope and specic content of the right have proved unsuccessful. Existing confu-
sion and controversy remain a source of the escalation of many ethnic conicts; a
threat to international order and the persistent gap in basic international law which,
if lled, would be helpful in many situations. Between 1956 and 2002, 146 ethnic
groups in 78 countries demanded greater territorial autonomy or independence from
their central government; importantly, in the vast majority of these cases the gov-
ernment responded by refusing to compromise on any issue related to territory, even
if they faced armed rebellion as a result.1
The evolution of the right to self-determination has been extremely dramatic in
this century2 and mainly due to the international involvement and its impact on
the dispute resolutions. Primarily established for the reason of decolonisation, the
contemporary concept of the right of self-determination has moved far away from
its roots and reached a status of a legal right. However, from todays perspective it
seems that so far international involvement has not had a very positive impact on
the systematic and consistent development of the right of self-determination. This
has resulted in a number of highly controversial cases and the alleged establishment
of double-standards (including arguable claims regarding the exceptional circum-
stances, etc.) given that there are no legal mechanisms which could consider the
rightfulness of the claim on self-determination and/or dene the beneciaries of this
right. The lack of clarity around the most fundamental aspects and concepts of the
right of self-determination have further contributed to the confusion surrounding
Barbara Walter, Building Reputation: Why Governments Fight Some Separatists but
Not Others, American Journal of Political Science, : (): .
Richard Anderson Falk, Revisiting the Right of Self-Determination, in Human Rights
Horizons: The Pursuit of Justice in a Globalizing World, ed. Richard Anderson Falk (Lon-
don: Routledge, ), .
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 395-426.
396 IV. Implications of Kosovo as a Precedent for Other Regions
discussion attention will be drawn to the specic character of the Georgian conicts
which will include a comparison of secession problems in Georgia and the Balkans
and will be followed by a rough identication of similarities and dierences that can
be observed in these cases. This should, rstly, contribute to the assessment of the
actual impact of the Kosovo case on the developments which took place in Georgia
in August 2008 and, secondly, contribute to understanding of the impact the Kosovo
case may have had (or might have) in terms of bringing clarity to the disputes on self-
determination in Georgia.
tensions in the region, which triggered an armed conict19 in January 1991.20 The
conict lasted throughout 1991 and caused thousands of casualties. As a result, tens
of thousands of refugees/IDPs were created on both sides of the Georgian-Russian
border.21 By 1991 the South Ossetians had expelled the majority of Georgian troops
from the region and most of the territory of South Ossetia became subject to the de-
facto control of the secessionist government.22
The armed conict between the South Ossetians and the Georgian authorities
ended in late 1992 with the signature of a ceasere agreement brokered and spon-
sored by Russia.23 A Joint Peacekeeping Force, composed of Georgian, Ossetian and
Russian armed forces, was established.24 As a result of the conict, Georgia has
ceased to exercise de facto control over South Ossetia.25 The territories controlled
by the former autonomous government included the districts of Tskhinvali, Java,
Znauri, and parts of Akhalgori.26 About 23,000 ethnic Georgians ed from South
Ossetia and resettled in other parts of Georgia.27 However, parts of South Ossetia
remained under Georgian control including a part of Akhalgori and several ethnic
Georgian villages in the Tskhinvali district.28 Prior to August 2008 almost one third
of the territory remained under the control of the central government of Georgia.29
Minority Rights Group, Historical Context of the Conict in South Ossetia. Accessed
September . http://www.minorityrights.org/?query=south+ossetia&lid=histo
ry.
See note above.
See note above.
See International Crisis Group, Georgias South Ossetia Conict: Make Haste Slowly,
, Appendix C, . Accessed October . http://www.crisisgroup.org/library/
documents/europe/caucasus/_georgia_s_south_ossetia_conflict_make_haste_
slowly.pdf.
See Human Rights Without Frontiers International, Georgia-South Ossetia-Russia:
The historical context of the August War, Report, February . Accessed
October . http://hrwf.net/uploads/SouthOssetia.doc. See also, Lara
Olson, Conciliation Recourses, Accord (). Accessed October . http://
www.c-r.org/our-work/accord/georgia-abkhazia/south-ossetia.php.
See PACE: Political Aairs Committee, Situation in Georgia and the Consequences for
the Stability of the Caucasus Region, Report, September , paras. -. Accessed
October . http://assembly.coe.int/Mainf.asp?link=/Documents/WorkingDocs/
Doc/EDOC.htm.
See note above, Appendix D.
See Note above, Appendix C, .
Human Rights Watch, The Ingush-Ossetian Conict in the Prigorodnyi Region, Report,
. Accessed October . http://www.hrw.org/legacy/reports//Russia.htm.
See note above.
Ibid.
400 IV. Implications of Kosovo as a Precedent for Other Regions
The peace-building process was unsuccessful and the regions evolved into so-
called frozen conicts. According to the 2009 report of Independent International
Fact-Finding Mission on the Conict in Georgia: notwithstanding the real or per-
ceived interests of the third parties, one of weaknesses of the peace processes in
South Ossetia and Abkhazia in 1992 - 2006 seemed to be the fact that the Geor-
gian, Abkhaz and South Ossetian sides concentrated heavily on external aspects and
players without paying sucient attention to building mutual trust and promoting
reconciliation.44
peace initiative in the form of a six-point reconciliation plan,49 which was ocially
accepted in Georgia and Russia.50 Russian forces occupied sections of Georgia by 11-
12 August, blocking the access to the West of Georgia, Gori and other areas where
they remained until the end of August.51 The territories surrounding South Ossetia
which constituted undisputed Georgian territory were dened by the Russian Fed-
eration as security or buer zones.52
On 8 September 2008, Russia agreed to withdraw all of its armed forces deployed
outside the boundaries of South Ossetia and Abkhazia by 1 October 2008.53 A hu-
manitarian corridor was opened only in the end of August, after the Russian troops
left Georgia. However, according to civil organisations and witnesses, violence
against the Georgian populations continued in Russian/South Ossetian controlled
territories.54 By 28 January 2009 Russian troops still remained in the various parts of
Georgia.55 On 28 August 2008, the Russian Federation recognized the independence
of Abkhazia and South Ossetia, established the diplomatic relations with the two
secessionist enclaves and oered signicant nancial and military assistance.56 Later
Russia was joined by Nicaragua,57 Venezuela58 and Nauru.59 The rest of the world
either rejected the independence claims of the secessionist enclaves or abstained
from voicing their opinion. Some states, including the United States and organisa-
tion such as NATO declared that they would never recognise either Abkhazia or
South Ossetia. 60 Later, the Independent International Fact-Finding Mission on the
Conict in Georgia led by Ambassador Tagliavini, appointed by the Council of the
European Union, concluded in its 2009 report, that recognition of Abkhazia and
South Ossetia by third countries was illegal and not a feasible political decision.61
The Russian invasion in Georgia was widely condemned by the Western govern-
ments and international organisations.62 The actions of the Georgian government
also received considerable criticism.63 The conict in South Ossetia has been sur-
rounded by disputable Russian claims deriving from the Charter of the United Na-
September . http://www.kremlin.ru/eng/text/speeches////_type-
type_.shtml.
Daniel Ortega, President of Nicaragua, Statement on the Recognition of the Republics
of Abkhazia and South Ossetia, September , in Spanish: http://www.cancilleria.
gob.ni/publicaciones/r_osetia_s.pdf. Accessed September .
Chavez Recognizes South Ossetia, Abkhazia As Independent, Radio Free Europe,
Radio Liberty. Accessed September . http://www.rferl.org/content/Chavez_Vis-
its_Russia_To_Discuss_Arms_Energy_Deals/.html.
Abkhazia Is Recognized by Nauru, The New York Times, December . Accessed
September . http://www.nytimes.com////world/europe/georgia.html.
T. Kighuradze, The USA will not recognize Abkhazia and South Ossetia, The Messenger
February . Accessed January . http://www.messenger.com.ge/issues/_
february__/_temo.html. See also, :
(The USA will not recognize Abkhazia and
South Ossetia), Vesti.Ru, March , available in Russian at: http://www.vesti.ru/doc.
html?id=&cid=. Accessed January . NATO Never Recognize Separatist
Regimes in Abkhazia and South Ossetia: Special Representative, October . Ac-
cessed October . http://en.trend.az/news/politics/foreign/.html.
See note above, volume I, , para. .
PACE, Declaration on Unilateral Decision by the Russian Federation to Legalise Ties
with the Georgian Regions of Abkhazia and South Ossetia, Written Declaration No. ,
Doc. , ( April ), para . Accessed November . http://assembly.coe.
int/Mainf.asp?link=/Documents/WorkingDocs/Doc/EDOC.htm, See amongst
others, OSCE Chairman condemns Russias Recognition of South Ossetia, Abkhazia
Independence, Accessed November . http://www.osce.org/item/.html.
Delegation of Canada of the OSCE, Statement on the Situation in the Abkhazia and
South Ossetia Regions of Georgia, Meeting of the Permanent Council ( July ).
Accessed November . http://www.osce.org/documents/html/pdftohtml/_
en.pdf.html. The Statement by the Finnish Presidency of the Council of the European
Union ( September ). Accessed November . http://www.osce.org/docu-
ments/html/pdftohtml/_en.pdf.html. The UN resolutions: SC Res. , UN Doc.
S/RES/ ( April ); GA Res. /, UN Doc. A/RES// ( May ).
Georgia: Events of , Report (New York: Human Rights Watch, ) Accessed
September . http://www.hrw.org/en/node/.
Chapter 13, Vakhtang Vakhtangidze The Impact of Kosovo: A Precedent for Secession in Georgia? 405
tions on the right to self-defence64 and the claims of the Georgian government on
sovereignty and territorial integrity.65
Federation had who strongly opposed the secession of Kosovo,70 soon after the cam-
paign for its recognition started, rejected the sui generis argument and argued that
the precedent should have further applicability namely with respect to Abkhazia
and South Ossetia, two separatist enclaves in Georgia.71 Even in 2006, before the rec-
ognition of Kosovo started, the then-Russian President Putin stated that: if people
believe that Kosovo can be granted full independence, why then should we deny it to
Abkhazia and South Ossetia?72 This became a trend dening statement for ocial
Russian policy regarding Georgian secessionist problems and not surprisingly, the
2008 recognition of these two enclaves followed the statements made by the Russian
ocials.73 At the same time, the process of extension has so far not reached the two
troubled regions of Chechnya and Ingushetia74 (located within Russian Federation)
where at the time of writing the government of the Russian Federation is struggling
to pacify a deteriorated situation.75 Moreover, Russia, faced with an equivalent seces-
sionist claim always supported the doctrine of self-determination applicable, only
in the classical and narrowly dened circumstances of salt-water colonialism,76 but
according to the 2009 EU fact-nding report made use of ... Kosovo precedent for-
mula selectively, mainly as an instrument to pressure Georgia and less in the case of
the Karabakh conict between Azerbaijan and Armenia.77
In the early stages of the recognition of the secessionist states, those claiming
further applicability of the Kosovo case specically, Abkhazia and South Ossetia
were drawing on the similarities that could be identied in these disputes,78 which
was followed by a campaign of criticism regarding the double-standards and political
manipulations applied in self-determination disputes. On a state level, as mentioned
above, the Russian Federation was the rst state to recognize the independence of
South Ossetia and Abkhazia and also the rst one to declare that the recognition of
Kosovo would have far-reaching eects for the peoples of Abkhazia and South Os-
setia since they had a right to secede as much as the people of Kosovo.79
According to the Declaration of Independence of Kosovo: [Kosovo] is a special
case arising from Yugoslavias non-consensual breakup and is not a precedent for
any other solutions.80 This kind of assertion appears in the majority of statements
made by third countries regarding the recognition of Kosovo as an independent
state,81 including the United Kingdom. In a statement to the Security Council fol-
lowing Kosovos Declaration, British Ambassador John Sawers stated that the unique
circumstances of the violent break-up of the former Yugoslavia and, the unprec-
edented UN administration of Kosovo make this a sui generis case, which creates
no wider precedent, as all EU member States today agreed.82 Similarly, it is stated
in the report of Martti Ahtisaari submitted to the Security Council: Kosovo is a
unique case that demands a unique solution. It does not create a precedent.83 These
claims are supported by some commentators who argue that because of its unique-
ness Kosovo does not constitute a precedent and should not be applied in other se-
cessionist cases.84 However, as Coppieters asserts, the problem is not whether or not
the model can be universally applied. The question is rather whether the principles
behind the decisions taken on Kosovo are universal. Those who deny the relevance
of the Kosovo model for other secessionist conicts, on the basis of its unique fea-
tures, may very well end up denying that universal principles should be applied at all,
either in Kosovo or in any other similar conict.85
Moreover, it is obviously not the rst time that the claim of uniqueness is brought
forward in cases of secession. The separation of Bangladesh from Pakistan was once
deemed unique as well. As Franck and Rodley assert, Indian intervention for the
purposes of restoring and enforcing the violated human rights of Pakistani nationals
through the use of massive military intervention without international authorisa-
tion created grey areas in international law.86 It seems that the grey areas did not
fade after the Indian intervention in Pakistan. One of the arguments put forward
by the President of the Russian Federation to justify the highly criticised military
intervention in Georgia87 was the argument of genocide committed by the Geor-
gian government with respect to Abkhaz and Ossetian populations. The argument
for genocide, i.e., acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group,88 was brought forward in the past by third states
as a justication for intervening in other states and Bangladesh stands out as a good
example. The government of Russia, by claiming applicability of right to self-defence
deriving from Article 51 of the UN Charter89 intervened in Georgia in order to stop
the alleged genocide of South Ossetians more than 90 of whom are the Russian
citizens.90 By bringing up the argument of genocide Russia, tried to imply the situ-
ation of the South Ossetian crisis to be as highly exceptional and unique as the
situation created in Bangladesh. From the beginning, the Russian government tried
to draw attention at the numbers of victims even though for the crime of genocide
international law requires proof of specic intent. Nevertheless, Russian ocials ini-
tially stated that about 2,000 civilians had been killed in South Ossetia by Georgian
forces. However, it failed to prove the accuracy of these numbers.91 Later the number
Ibid.
Thomas M. Franck and Nigel Rodley, The Law, the United Nations and Bangla Desh,
Israel Yearbook on Human Rights (): .
Bush Slams Russias Invasion Of Georgia: Dramatic And Brutal Escalation Condemned
As Russian Troops Push Out Of Breakaway Regions, Into Western-Allied Neighbor,
CNBC NEWS, August . Accessed August . http://www.cbsnews.com/
stories////world/main.shtml. See also, Russian Invasion Condemned
by European Union, Sky News, September . Accessed August . http://
news.sky.com/skynews/Home/World-News/G-European-Union-Summit-Leaders-
Condemn-Russias-Invasion-Of-Georgia/Article/?f=rss.
Rome Statute of International Criminal Court, UN Doc. A/CONF./ ( July ),
Art. . Accessed September . http://untreaty.un.org/cod/icc/statute/romefra.htm.
Chapter VII, UN Charter .
Who became Russian citizens as a result of a massive passportisation campaign
launched by the government of Russia in the late s. This aspect will be discussed in
more details below.
HRW: Few civilians killed in South OssetianWar, Herald Tribune, September .
Accessed September . http://www.iht.com/articles/ap////esurope/EU-
Russia-Georgia-Death-Toll.php.
Chapter 13, Vakhtang Vakhtangidze The Impact of Kosovo: A Precedent for Secession in Georgia? 409
of overall South Ossetian civilian losses was reduced to 162.92 In later months the ac-
cusations of genocide became less frequent as the alleged Georgian intent for geno-
cide could not be proven, though, this is not to diminish the importance of human
loss on South Ossetian side.93 Therefore, it seems as though the term unique, used
from time to time to justify certain omissions, is not quite exclusive.
The above mentioned highlights the fact that claims of uniqueness are quite
fragile and that it is therefore, important to identify clearly distinctive elements in
the case of Kosovo, which could qualify it as truly unique and to justify the state-
ments that it cannot be applied as a precedent in the future.
Ibid.
See note above, volume I, , para. .
Thomas Musgrave, Self-Determination and National Minorities (Oxford: Oxford Uni-
versity Press, ), .
Aleksandr Pavkovic and Peter Radan, Creating New States: Theory and Practice of Seces-
sion (Aldershot: Ashgate Publishing Limited, ), .
Over , Killed in Chechnya Since Pro-Moscow Ocial, Mosnews, No-
vember . Accessed October . http://web.archive.org/web//
http://www.mosnews.com/news////civiliandeath.shtml.
Eight Years of Imprecision: Estimating the Kosovo Wars Death Toll, Defense and For-
eign Aairs Special Analysis, August , -. Accessed October . http://
www.slobodan-milosevic.org/news/dfasa.htm. See also, New mass grave of Ko-
sovo Albanians Found in Serbia, BBC, May . Accessed October . http://
news.bbc.co.uk//hi/.stm.
Kosovo Future: Negotiating a Precarious Future. Thomson Reuters Foundation, July
. Accessed October . http://www.alertnet.org/db/crisispro les/KO_VIO.
htm?v=in_detail.
410 IV. Implications of Kosovo as a Precedent for Other Regions
Ibid. para. .
Ibid.
Ibid. para. .
Annex , Resolution .
UN Doc. S/PV. ( June ).
Ibid.
Ibid.
See note above, para. .
Ibid. para. .
Ibid. para. .
412 IV. Implications of Kosovo as a Precedent for Other Regions
contemplated it.118 This observation itself contradicts the operative paragraph 11(e)
of Resolution 1244 (1999) which refers to the Rambouillet accords as stating that:
a nal settlement for Kosovo should be based on the will of the people, opinions
of relevant authorities, each Partys [Belgrade and Prishtina] eorts regarding the
implementation of this Agreement, and the Helsinki Final Act 119 The wording of
this provision requires the presence of all elements rather than just of one of them
the will of people singled out by the ICJ during its deliberations.120 Otherwise, as
Judge Skotnikov points out in his dissenting opinion, the negotiation process would
have no reason whatsoever.121
Moreover, the ICJ goes even further and tries to prove the rightfulness of the
above observation by excluding the persons who unilaterally declared the indepen-
dence of Kosovo from the circle of persons bound by Resolution 1244 (1999) as they
acted outside the capacity of the interim administration as representative of the
people of Kosovo.122
Therefore, it seems that the role played by the UN itself, committed as it is to the
Charter principles of territorial integrity and sovereignty, could in so-called unique
cases, by its activities, damage the territorial integrity of some states which does not
necessarily contribute to clarity around the subject of self-determination. The Opin-
ion of the ICJ most certainly makes the case of Kosovo very unique in post factum
terms; however, the deliberation conducted by the Court fails to portray the whole
case as such which in dierent circumstances could bring clarity to the problem and
justify including the commitment of many states to the independence of Kosovo.
Consequently, it can be asserted that there is not a lot apart from political state-
ments to prove the uniqueness of the Kosovo case. Certainly, Kosovo is not the rst
and the only case of successful secession.123 Nevertheless, it certainly lacks sucient
clarity and contains too much contradiction to be established as a precedent for
generating a custom universally authorising secession. Secession is probably one of
those cases where uniformity, consistency and generality of practice are highly nec-
essary especially at the moment when there are over 200 secessionist movements
worldwide.124
Ibid. para. .
Rambouillet Accords, UN Doc. S// ( June ), Chapter VIII, Art. . Accessed
August . http://jurist.law.pitt.edu/ramb.htm.
Kosovo Opinion, para. .
See Judge Skotnikov, Dissenting Opinion, ibid.
Kosovo Opinion, para. .
Some academics try to interpret the secession of Bangladesh in a colonial context, e.g.
Ved Nanda and Gnapala Welhengama.
Darko Duridanksi, Balkan Earthquake is Felt Far Away, Balkan Insight, February
. Accessed October . http://fellowship.birn.eu.com/en/main/publication_
articles_//.
Chapter 13, Vakhtang Vakhtangidze The Impact of Kosovo: A Precedent for Secession in Georgia? 413
Generic observation regarding the conict in South Ossetia, Uppsala Conict Data-
base. Accessed August . http://www.pcr.uu.se/research/UCDP/.
The government of Kosovo has committed itself to implementing in full the Compre-
hensive Proposal for the Kosovo Status Settlement prepared by the Special Envoy for the
Kosovo Future Status Process, Martti Ahtisaari. One of the aims of the proposal is: to
414 IV. Implications of Kosovo as a Precedent for Other Regions
As we can see there are a number of signicant common aspects in these cases.
However, are they signicant enough to make them absolutely similar and exclusive
at the same time? There must be other disputes with similar claims and based upon
similar moral or legal arguments (Chechnya could serve as a good example). The
dierences identied during the following observation can support the positions
held by either opposing sides engaged in the discussion, however, only a few could
contribute to the clarity with regards to the question of legality and/or morality of
secession. There are a number of distinctive elements involved in these three cases,
they have been identied before, however, the level of importance attached to them
varies depending on the method of interpretation employed by its authors and/or the
level of their political inuence. Nevertheless, I believe identifying those dierences
and evaluating their importance from the point of international law will make this
point clearer.
Firstly, all three regions had a dierent legal status before the dissolution of Yugo-
slavia and the Soviet Union. Even though both Kosovo and Abkhazia had the status
of autonomous republics/provinces, they were quite dierent in content. In particu-
lar, under the 1974 Yugoslav Constitution, Kosovo enjoyed the status of an autono-
mous province similar to that of the six Yugoslav republics with virtually the same
de ne the provisions necessary for a future Kosovo that is viable, sustainable and sta-
ble. Thus it includes: promotion and protection of the rights of communities and their
members; the eective decentralization of government; preservation and protection of
cultural and religious heritage; adopting economic and security provisions aimed at
contributing to the development of a multi-ethnic, democratic and prosperous Kosovo.
Democratic governance and the rules of law are given uttermost importance in the text
of the proposal.
However, after considering various reports on Kosovo and importantly, those tabled to
the General Assembly and the Security Council during -, it becomes clear that
Kosovo faces rule of law problems at all levels. See, amongst others, The Comprehensive
proposal forKosovo Status Settlement, Report of the Special Envoy of the Secretary-
General on Kosovos Future Status: . . Accessed January . http://www.unosek.
org/unosek/en/statusproposal.html. See also, Secretary-General on the United Nations
Interim Administration Mission in Kosovo, July , . Accessed January .
http://www.un.org/Docs/sc/sgrep.htm. Kai Eide, A Comprehensive Review of the
Situation in Kosovo October ), . Accessed January . http://www.fehe.org/
index.php?id=.
The same applies to the problem of the protection of human and minority rights in
Kosovo. See, Clive Baldwin, Minority Rights in Kosovo under International Rule (Lon-
don: Minority Rights Group International, ). Accessed November . www.
minorityrights.org/download.php?id=. See also, Secretary-General on the United
Nations Interim Administration Mission in Kosovo, Report ( November ), para.
; Implementation of the Framework Convention for the Protection of National Mi-
norities in Kosovo, Thematic Shadow Report, Praxis, May . Accessed De-
cember . http://www.praxis.org.rs/index.php?option=com_content&task=view
&id=&Itemid=. Hungary Calls for Kosovo to Assure Rights of Serb Minority,
February . Accessed December . http://www.earthtimes.org/articles/
show/,hungary-calls-for-kosovo-to-assure-rights-of-serb-minority.html).
Chapter 13, Vakhtang Vakhtangidze The Impact of Kosovo: A Precedent for Secession in Georgia? 415
rights and responsibilities, the same governmental (legislative and executive) struc-
tures, and the same representation at the Federal level127 though, without a right
to secede.128 It also had its own bank, territorial defence force,129 constitution and
constitutional court.130 Kosovo also enjoyed the right of the equality of languages on
its territory, the right to use the national ag131 and a, kind of dual citizenship.132
Some academics even argue that the similarity in status of Kosovo with the six Yu-
goslav republics implied the right to secede133 and as Albanian political leader Azem
Vllasi observed: Kosovo functioned as a republic in the federal state of Yugoslavia
and we were not [a republic] only by name.134 According to Article 72 of the 1977
Soviet Constitution, only fteen republics possessed the right to secede from the
Union135. Even though, the provisions regarding the possibility of seceding from the
Soviet Union were purely formal, the fact by itself carries principal importance. Nei-
ther South Ossetia nor Abkhazia enjoyed the right to secede as they were formerly
not sovereign136 and had less power in the eld of culture and education. However,
Abkhazia did have its own constitution and other attributes of partial statehood,
which were not equal to those enjoyed by the fteen Soviet Republics thus less privi-
leged than the one enjoyed by Kosovo, even though the latter did not have a formal
status of a republic but enjoyed similar privileges. South Ossetia was even lower in
the federal hierarchy and was not considered to have the characteristics of state-
hood.137 Therefore, in terms of legality of secession it can be stated that as opposed
to Abkahzia/South Ossetia, Kosovo was on the higher level of self-management and
very similar to the six Yugoslav republics who enjoyed the right to secede from Yu-
goslavia.
Secondly, in Kosovo, Albanians represented an absolute majority compris-
ing more than 90 of the population, whereas in South Ossetia, ethnic Ossetians
formed 66 of the population. Rather dierently in Abkhazia the ethnic Abkhazians
were a clear minority comprising just 17.76 of the whole population against 45
for ethnic Georgians. However, there is no implication in international law that the
right to self-determination necessarily belongs only to the peoples forming a major-
ity. As long as the groups seeking for self-determination qualies as a people they
are entitled to exercise self-determination in one way or another. Importantly, nu-
meric representation would have had specic implications, if these situations were to
be resolved in the way it occurred in Quebec. In its 1997 judgment on the legality of
secession of Quebec, the Supreme Court of Canada insisted that from the perspec-
tive of Canadian constitutional law principles, a clear question and a clear majority
in a referendum expressing support for secession,138 was required. Even though, the
referendum itself would have no legal eect and could not bring about unilateral
secession... it would place an obligation on the provinces and the federal government
to enter into negotiations to bring about constitutional changes to respond to that
desire.139 The referenda in the disputed parts of Georgia have never been conducted
with the participation of the Georgian population. At dierent times, they took place
either in circumstances when they were conducted in accordance with the disput-
able Soviet legislation, in which the Georgian population did not participate, or they
were conducted in the absence of the Georgian population who ed or were forced
to ee. None of the referendums were recognised by the international community.140
All proposals on conducting referendums after the peaceful return of internally dis-
placed Georgians were rejected by the secessionist governments. This aspect makes
the morality of secession arguable as well. However, on practical level, in the ab-
sence of unied standards, it is dicult to articulate in what way the referendum,
even conducted in fair conditions, would contribute to the resolution of the problem
in the circumstances when the conicting parties are incapable of maintaining el-
ementary communication.
Fourthly, so far Kosovo has been recognized by 72 countries (22 EU members)
and the Republic of China (Taiwan) whereas Abkhazia and South Ossetia have been
recognised only by Russia (their close ally), Nicaragua, Venezuela and Nauru. In the
absence of the unanimity with regards to the legality of recognition it is dicult to
articulate whether or not a higher level of recognition indicates statehood.
In Williams v Bru y,141 the Supreme Court of the United States discussed the
validity of acts where a part of the population by separating themselves from the
state establishes independent government. The court stated that the validity of these
acts: both against the parent State and its citizens or subjects, depends entirely
upon its ultimate success. If it fails to establish itself permanently, all such acts per-
ish with it. If it succeeded, and become recognised, its acts from the commence-
ment of its existence are upheld as those of an independent nation.142 The Court
in its judgment credits recognition by other states as an important element in the
attempt to successfully establish a new state. Nevertheless, legal weight of the act of
recognition is still not well-estimated due to the contradiction between two major
theories: constitutive and declaratory. According to Article 1 of the 1933 Montevideo
Convention a new state should only be recognised by other states if it possesses a
permanent population, a dened territory, a government and a capacity to enter into
relations with other states.143 Moreover, when the break-up of the Soviet Union and
the Socialist Federal Republic of Yugoslavia occurred, it was also suggested that the
succeeded state must also meet international standards relating to human rights and
self-determination, set out in the Guidelines for Recognition issued by the European
Community in late 1991.144 Pavkovic asserts that: the recognition of independence
by other states is vital evidence that the newly proclaimed state satises generally ac-
cepted requirements of statehood.145 Achieving statehood was one of the major con-
cerns of the Badinter Commission,146 which precisely for this reason denied support
to the independence of Bosnia and Herzegovina.147 Nevertheless, it never stopped
the process of recognition of Bosnia and Herzegovina.
As mentioned above there are two main theories on recognition: constitutive
and declaratory. According to the declaratory theory, recognition plays no role in
the creation of a state, whereas the constitutive theory states that the recognition of
a state creates that state and therefore constitutes a further requirement for estab-
lishing a new state.148 Both theories are supported by dierent legal authorities. The
International Court of Justice (ICJ) in the case Reparation For Injuries Suered in
the Service of the United Nations, appeared to support the constitutive theory. It de-
clared that a majority of states had the power, in conformity with international law,
to bring into being an entity possessing objective international personality.149 Even
though the ICJ was referring to an international organisation, Wright argues that
this interpretation is equally applicable to the states because it sets out the position
Ibid. para. .
Montevideo Convention on the Rights and Duties of States Signed at Montevideo,
December , Article . Accessed June . http://www.taiwandocuments.org/
montevideo.htm.
John Dugard and David Rai, The Role of Recognition in the Law and Practice of Seces-
sion, in Secession, International Law Perspectives, ed. Marcelo G. Kohen (Cambridge:
Cambridge University Press, ), .
See note above, .
Ocially known as Arbitration Commission of the Conference on Yugoslavia.
See note above, .
Ibid. .
Reparation for Injuries Suered in the Service of the United Nations, Advisory Opinion,
() ICJ ( April).
418 IV. Implications of Kosovo as a Precedent for Other Regions
ethnic cleansing practiced by the government of Miloevi against the Kosovar Al-
banians was powerful enough to allow the external intervention in the conict with-
out the authorization of the Security Council of the United Nations, it is certainly
strong enough to cast shadow over the legal and moral claims of the secessionists.
Importantly, the fact of ethnic cleansing also questions the ability or commitment
of secessionists to perform their political function by establishing a state where
human and minority rights are respected and secured. Furthermore, recognising
claims of people who seceded and acquired the territory by use of the abhorrent
practice of ethnic cleansing would mean accepting the right to unilateral seces-
sion through the use of violence resulting in the violation of international human
rights and humanitarian laws,163 and involving related crimes against humanity and
war crimes. Moreover, the aspect of unlawful use of external force (as considered
by the international organisations including the EU)164 should not be left without
consideration either. This observation is reiterated in the ICJ Opinion Accordance
with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo.165 The ICJ responds to the submission from the various participant states
referring to the practice of condemning unilateral declarations of independence by
the Security Council.166 It emphasises the fact that the reason for condemning these
particular declarations was not the unilateral character of them but: the illegal-
ity attached to the declarations of independence... from the fact that they were, or
would have been, connected with unlawful use of force or other egregious violations
of norms of general international law, in particular those of a peremptory character
(jus cogens).167 According to the ICJ this specic observation serves as a dierentiat-
ing aspect between the Declaration of Independence by Kosovo and other declara-
tions by Southern Rhodesia and Northern Cyprus respectively, condemned by the
Security Council.168 Even though the above observation is in consonance with the
general rules of self-determination, it should be mentioned that while making this
observation, the ICJ left without a mention the number of unlawful acts committed
against the Kosovar Serbs after the return of Albanians in Kosovo.169
After identifying and assessing the common and distinctive elements in all three
cases, it may well be stated that distinctive elements (even though not all of them
are very powerful) still manage to outweigh the common points identied above.
As mentioned above, this is apparently not for the rst time when the distinction is
made between these three disputes. It is true that recognition by individual states
is, essentially a matter of a policy even interlaced with some legal considerations,170
and, not surprisingly, the Russian Federation which rst tried to justify the recogni-
tion of the secessionist enclaves by rejecting the uniqueness of the Kosovo case as
claimed by the Western governments and Kosovo itself; and by outlining the simi-
larities between these three cases recently slightly readjusted its position. Particu-
larly, by engaging in renewed negotiations on the Nagorno-Karabakh and Trans-
Dniestrian regions, the Russian Federation is trying to demonstrate that military
intervention in these regions is out of the question.171 Moreover, now it is trying to
stress the uniqueness of the military intervention in Georgia, by justifying earlier
claims of genocide of South Ossetians (which, failed to be true) and its citizens origi-
nated as a result of its passport oensive from the late 1990s onwards in Abkha-
zia172 and South Ossetia.173 This included the mass conferral of Russian citizenship to
persons living in the breakaway regions thereby also granting them entitlement to
Russian pensions and other social benets174 which was particularly signicant for
residents of South Ossetia and Abkhazia following the imposition of a visa regime
between Russia and Georgia in 2000 and eectively resulting in a visa-free regime
for South Ossetia and Abkhazia.175 In addition, Russian passport-holders in South
Malcolm N. Shaw, The Role of Recognition and Non-Recognition with Respect to Se-
cession: Notes on Some Relevant Issues, in Secession and International Law, ed. Julie
Dalitz (Geneva: Asser Press, ), .
Ekaterina Stepanova, Policy Brief Regarding South Ossetia and Abkhazia: Placing the
Conict in Context, November . Accessed November . http://books.sipri.
org/ les/misc/SIPRIPB.pdf.
Inal Khashig, Abkhaz Rush For Russian Passports Tbilisis Relations with Moscow
Worsen as Hundreds of Thousands of Abkhazians Take up Russian Citizenship, In-
stitute for War and Peace Reporting, February . Accessed October . http://
iwpr.net/report-news/abkhaz-rush-russian-passports.
... [T]he new Russian Law on Citizenship which entered into eect in the year
regulated in its Articles and admittance to Russian citizenship in a simplied
procedure and thus opened broader avenues soon to be exploited by thousands of new
applicants from South Ossetia and Abkhazia. See note above, volume II, .
Ibid. . See also, Situation in Georgia and the Consequences for the Stability of the
Caucasus Region, Doc. , Strasbourg, PACE, September , para. . Accessed
September . http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/
Doc/EDOC.htm. See also Maria Danilova, Russia launches passport oensive,
Associated Press, February . Accessed September . http://www.dawn.
com////int.htm.
Ibid. See also, PACE, Honouring of Obligations and Commitments by Georgia, Re-
port, Doc. , September . Accessed September . http://assembly.
coe.int/Mainf.asp?link=/Documents/WorkingDocs/Doc/EDOC.htm.
422 IV. Implications of Kosovo as a Precedent for Other Regions
Ossetia took part in the Russian presidential election in March 2008.176 In 2002,
the Parliamentary Assembly of the Council of Europe (PACE), in a report dealing
with the Situation in Georgia and the consequences for the stability of the Caucasus
region, called upon the Russian Federation inter alia: to refrain from any action or
declarations which might interfere in the internal aairs of Georgia or violate the
sovereignty and the territorial integrity of Georgia... from any unilateral measures
aecting Georgia and its citizens, in particular as regards Abkhazia and South Os-
setia including in the elds of economic assistance and the freedom of movement
of persons and goods, in particular, with respect to visas, customs and passport
issues177 By doing so, Russian ocials are trying to play the Western Game by
making unique cases for Abkhazia and South Ossetia, which would justify recogni-
tion in the same manner as Kosovo. It may well be stated that: the justication for
stretching the limits of international law in one case on the grounds of the unique
circumstances is itself precedent setting,178 or, as the English saying goes, once is an
occasion, and twice is a tradition. Therefore, we face a dilemma resulting from the
case of Kosovo, which obviously has far-reaching and confusing eects and impacts
on such cases, like Abkhazia and South Ossetia. This is because it is quite dicult to
prove the uniqueness of Kosovo and by this prevent its further applicability.
5 Conclusion
Before assessing the actual impact of the case of Kosovo on the 2008 developments
in Georgia, it should be reiterated that all three cases represent a clear example of
failed diplomacy. The whole problem of lack of clarity around the subject of self-de-
termination exacerbates the contradiction and controversy. As a result, the chances
for nding a mutual agreement and/or a compromise are dramatically lowered.
Consequently, the opportunity for dierent, sometimes even subjective, interpreta-
tions of law and practice is wide open and the absence of solution that could contrib-
ute to the clarity around the subject makes the whole problem even more dicult.
It becomes clear that the world has not really moved any further in terms of crystal-
lising the vague elements surrounding secession. Some academics, including Bor-
gen, argue that: it cannot seriously be argued today that international law prohibits
secession.179 This statement can be supported with the views regarding acceptable
secession in extremely exceptional circumstances.180 Is this the case in Kosovo? If so
should it be extended to the cases of Abkhazia and South Ossetia? Unfortunately,
after taking into consideration the views presented here, it becomes obvious that
Kosovo has problems in qualifying as a thoroughly unique case. It is a genuinely
complicated case: demonstrating the ways in which political interests of states af-
fect how the international law is given eect.181
Today the position regarding the independence of Kosovo is dramatically dier-
ent from the one held in 1991 when Badinters Commission rejected the request of
Kosovos Albanian political leadership for the recognition of Kosovo.182 Nowadays
the argument on statehood seems slightly obsolete and it is certainly not the most
decisive element in this case, neither the contemporary arguments regarding the
non-intervention from third-party183 nor premature recognition184 or uniqueness
seem to contributive greatly to the clarity and unanimity around the problem of
secession. In fact, considering the example of Georgia it may well be stated that it
caused additional confusion and had an epidemic eect which ended up in a violent
conict.
Previous experiences have demonstrated that the right to secession tends to re-
main an extremely exceptional lacking universal recognition. It is unlikely that the
contradictory nature of the case of Kosovo and the absence of any agreement on
the most decisive elements of secession would allow the international recognition
of a right to secession. The above mentioned leads to an assumption that the whole
process of the application of the provisions for external self-determination, i.e. se-
cession, will remain erratic for some time to come. Perhaps it is meant to remain
so in the face of the lack of clarity and the absence of recognised, impartial and
eective international mechanisms, which evidently creates: a very large gap in
contemporary international relations.185 This observation can be supported by the
recent opinion of the International Court of Justice (ICJ) Accordance with Inter-
national Law of the Unilateral Declaration of Independence in Respect of Kosovo.186
The hope that there could have been some clarity brought in with regards to the
case of Kosovo by the ICJ arose after the United Nations General Assembly voted
in favour of the resolution to give an opinion on whether Kosovos Declaration of
Independence from Serbia was in compliance with international law.187 The results
of the voting demonstrated signicant division amongst the member states of the
United Nations.188 Even though none of the states who voted against the resolution
challenged the authority of the ICJ, all of them felt free to describe the resolution
as politically manipulative with a potential to cause the deterioration of the situa-
tion on the ground.189 Some of them stated that Kosovos independence is, and will
remain, a reality.190 The member states that supported the resolution believed that
the advisory opinion from the ICJ would provide politically neutral and judicially
authoritative guidance to many countries still deliberating how to approach such
unilateral declarations. If so, Georgia should have been one of the countries eager to
obtain an authoritative opinion from the ICJ. However, it abstained.
The question on which the Advisory Opinion of the ICJ has been requested was
as follows: Is the unilateral declaration of independence by the Provisional Institu-
tions of Self-Government of Kosovo in accordance with international law?191 It may
well be stated, however surprising it may sound, that the authors of the question
failed to take into consideration the full political complexity of the case when phras-
ing the question. It should have been predictable that bearing in mind the political
and legal complexity surrounding this problem, there was a strong possibility that
the ICJ would have treated the question very narrowly, i.e. by escaping interpretation
of such fundamental issues as the right of self-determination and even more, reme-
dial secession, regardless of the fact that the Declaration of Independence was purely
aimed at secession. It should be mentioned, however, that a specic question could
have failed to gain support from in the General Assembly taking into consideration
the division among member states which became obvious during the voting process.
After conducting a legal analysis including a historical review of declarations of
independence the ICJ concluded that that international law contained no prohibi-
tion of declarations of independence.192 Even though, the ICJ linked the problems of
declaring independence and the importance of self-determination to each other, it
eectively illustrated its unwillingness to deliberate over the issues of secession by
considering it unnecessary, to resolve these questions in the present case.193 The
Ibid. para. .
See note above, para. .
Ibid. para. .
Ibid. paras. -.
Ibid. para. .
See note above, para. .
C. Doebbler, The ICJ Kosovo Independence Opinion: Uncertain Precedent, Jurist,
July . Accessed September . http://jurist.org/forum///the-icj-kosovo-
independence-ruling-an-uncertain-precedent.php.
426 IV. Implications of Kosovo as a Precedent for Other Regions
opinion but no indication has been given as to whether it is going to recognise Kosovo
in the near future, given pressure from its allies in Moscow.201 Azerbaijan condemned
the decision and Kosovos secession as completely illegal, a stance taken by a number
of other countries with active secessionist entities, such as Moldova and Cyprus.202
Abkhazia and South Ossetia endorsed the opinion and, ...have cited it as a justica-
tion for their own rights of secession, despite undoubted opposition from Moscow.203
The US Assistant Secretary of State Philip Gordon said that, many other dozens, of
states had been awaiting the ruling before recognizing Kosovos independence. None-
theless, a surge in recognition following the opinion did not materialise.204 So far,
Honduras, Kiribati and Tuvalu are the only states to recognise Kosovo after the ICJ
Opinion was delivered.205 China and Russia have indicated their resolution to block
Kosovos membership in the UN. So far, then, little has changed.206
It may well be stated that the confusion and controversy surrounding Kosovo
was added to by the opinion of ICJ. Regardless of who started the war last August in
Georgia, it is true that both sides had legitimate fears and both of them were ready
for war. As many commentators claim, it is obvious that without the Kosovo argu-
ment the Russian Federation were unlikely to have intervened in Georgia and more
so, subsequently recognised the independence of Abkhazia and South Ossetia.207
The example of Kosovo gave the Russian Federation the reference and condence to
do so. The opinion of ICJ will probably give other states the condence to recognise
and continue exploiting double standards and exploring the opportunities for po-
litically motivated legal interpretation. Therefore, it seems that self-determination is
still, too important to be left to lawyers,208 and will long remain open to political
decisions and manipulations despite the fact that this poses a danger to the whole
UN Charter system and peace. This most certainly will not have any positive impact
on peace building activities in Georgia and will for the foreseeable future prevent the
full realisation of the right to self-determination of peoples living in the troubled
regions of Georgia.
1 Introduction
Why has the Spanish government refused to recognise the independence of Kosovo?
Spain announced that refusal from very moment of the Declaration of Indepen-
dence, the 18 February 2008 and stills holds to it, even after the Advisory Opinion
of the International Court of Justice that has recently, and not without controversy,
validated the act of the, representatives of the people of Kosovo.1 Even though the
majority of EU member States had already supported the Declaration of Indepen-
dence, from the rst, the ocial position of the Spanish Foreign Aairs Oce was
that Kosovo Declaration of Independence did not respect international law and, as
a consequence, Spain could not support it. With the occasion of the Spanish Presi-
dency of the European Union, which began the 1 January 2010, there was an ocial
statement from the Spanish Ministry of Foreign Aairs declaring that during the
six-months presidency Spain was willing to contribute to the peace, stability and
development of the Balkans, including Kosovo, but that none of those actions or
acts could be deemed or interpreted neither as a change of Spanish position regard-
ing Kosovo, nor as an act of reconnaissance of the independence of the territory.2 It
seems that the Spanish authorities have a rm idea on the illegality of the Declara-
tion of Independence.
The written statement that Spain presented before the ICJ argued that the Decla-
ration of Independence violated the principle of territorial integrity and sovereignty
of Serbia, which was engraved in the United Nation Security Council Resolution
1244.3 Notwithstanding those ocial reasons, a relationship between such a rm
refusal and the independence claims of some Autonomous Communities within the
Spanish state was suggested. This suspicion, always denied by the Spanish represen-
tatives, could be loosely connected to that main argument of the Spanish written
statement before the ICJ: the principles of state sovereignty and territorial integrity,
which meant conceiving of Kosovo as a part of a Serbia. Following that reasoning,
the territory of Kosovo could not decide unilaterally to secede from Serbia. But the
suspicion was even more strongly rooted in a dierent supposition: if Spain recog-
nised Kosovo, would proceedings for the secession of territories with nationalist
feelings, such as Catalonia or The Basque Country, have to be allowed?4 Now that
the Advisory Opinion of the ICJ has considered that Kosovos Declaration of Inde-
pendence does not conict with international law, the Spanish Government insists
on its refusal to accept Kosovo as a state. Where is the obstacle now? Is that supposi-
tion more than a speculation?
But we should keep on asking: is the situation of the Autonomous regions in Spain
similar to that of Kosovo in the context of its independence? Obviously not, but: is
there any resemblance? We could guess so. Are the independence claims of the na-
tionalist parties in Spain based on the same arguments as Kosovo used? How would
an international law perspective consider it? Which is the constitutional interpreta-
tion of those matters? Can the Spanish State authorities fear that if they do agree to
The written statement of the Kingdom of Spain was issued in April by Concepcin
Escobar Hernndez, Head of the International Law Department, Ministry of Foreign
Aairs and Cooperation: Accessed December . http://www.icj-cij.org/docket/
les//.pdf.
This position is explained, among others, in Cesreo Gutirrez Espada and Romualdo
Bermejo Garca, Kosovo de nuevo: apuntes crticos sobre su declaracin de independ-
encia, su constitucin y otras reexiones, Real Instituto Elcano: Working Paper /,
September . Accessed December . http://www.realinstitutoelcano.org/
wps/portal/rielcano/MisionesDePaz/Kosovo/Publicaciones.
After Kosovo independence, in Spain it was remarked that intense debate would be
guaranteed, not only because of Kosovos situation itself and Spanish position on the
matter, but, because whatever solution is agreed for Kosovos status will serve as a
precedent for similar cases in Europe and elsewhere. Romualdo Bermejo Garca and
Cesreo Gutirrez Espada, Kosovos Independence from the Perspective of the Right
to Free Determination, Real Instituto Elcano: Working Paper /, April . Ac-
cessed December . http://www.realinstitutoelcano.org/wps/portal/rielcano/Mi-
sionesDePaz/Kosovo/Publicaciones. The idea of a breach of international law has been
maintained since the end of the nineties by experts such as the above mentioned or
Remiro Brotns. See Antonio Remiro Brotns, Un nuevo orden contra el Derecho in-
ternacional: el caso de Kosovo, Revista electrnica de Estudios Internacionales ().
Accessed December . www.reei.org.
Chapter 14, Miryam Rodrguez-Izquierdo Serrano The Basque Country 429
recognise Kosovo they would be, at the same time, giving nationalists a legal reason
to secede?
Up to this moment, the ideas about self-determination leading to secession had
foundations in international law in the case of the right to self-determination of
colonial territories. Regarding constitutional law, it is known that neither federal
nor, of course, unitary States tend to include secession clauses within their Constitu-
tions. The only constitutional interpretation of this matter was delivered by Canadas
Supreme Court in 1998. In reference to Quebec, the Court stated that in a province, a
clear majority voting on a clear question in favour of secession would give the prov-
ince legitimacy to pursue secession through negotiations, with no conclusion prede-
termined by law.5 That meant that a nal conclusion of those negotiations, even after
a referendum in a territory within the state, should be considered a political result of
a negotiation, not a legal or constitutional right to self-determination of that part of
the territory of the state. It was, as Anderson says, less than a right to secede, but a
moral impulse to the possibility of asking for secession.6
The pseudo-federal Spanish Constitution of 1978 is no dierent from most oth-
ers and does not allow secessions from parts of the territory. It makes reference to
a right to autonomy for nationalities and regions within the State, in Article 2, but
not to a right of self-determination by those entities that could mean secession. But,
could the autonomy principle within the Spanish Constitution lead to a dierenti-
ated status for one autonomous community, something in between secession and
the current right to autonomy? Could it entail something like free association for
some territories within the state?
We can search for answers through approaching the case of the Basque coun-
trys independence claims. Why the Basque country? First of all, the most persistent
claims since the entry into force of the Spanish Constitution have been by Basque
nationalists. Some of those claims have even been identied, directly or indirectly,
with the terrorism of the ETA, which adds the issue of violence to a political contro-
versy. In a second order of ideas, if we talk about another strong nationalist aspira-
tion in a Spanish territory, those of Catalonia and nationalist Catalonian parties, we
could say that they have chosen, at the moment, a dierent strategy. Instead of ask-
ing for an independent status, they have used the strategy of scheduling an Autono-
mous Community with very wide spheres of competences through a reform of the
Statute of Autonomy, approved in 2007, within the legal and political frame of the
Spanish constitutional system. Certainly, and in spite of such a legal strategy, some
aspects of that reform have recently been declared contrary to the Constitution by
the Spanish Constitutional Court, in a ruling that has reopened the debate about
autonomy and self-determination in Spain.7 In a third and last perspective, there is
a possible chronological connection between Kosovos Declaration of Independence,
February 2008, and the proposal for a referendum in the Basque country on the start
of an independence process in June 2008.
Whether that was a coincidence, or not, will be the focus of this analysis of the
political strategy for Basque secession that the PNV (Spanish acronym for Basque
Nationalist Party) developed from 2001 to 2008. In the following pages, I will present
the general lines of the tension between the Spanish State and the Basque country
with a special attention to the main characteristics of the conict from the point of
view of secessionism, both, under international and constitutional law. In that con-
text, I will comment on how the Spanish Constitution tried to nd a solution to ter-
ritorial diversity in Spain through the autonomies, how the Basque country received
that constitutional project and how everything has worked since 1978 until now.
Those approaches will be preliminary to the study of the two main independence
attempts that the Basque government scheduled as questions of law in 2003 and
2008. Our aim is to be able to explain the situation of the Basque Country within
the Spanish state from the point of view of international self-determination require-
ments, just to check if Kosovo precedent is really a threat for Spanish unity as a state.
Then comes one of the ideas that we suggested before, but left behind, as ques-
tions to nd answers to: could we think of the Basques as a people whose self-de-
termination is not possible within the state and, as a consequence, that impossibil-
ity would allow them to claim for secession under the rules of international law?
It would be dicult to assent to that consequence as international law has until
now restricted the recognition of independence on the basis of self-determination
to nations that had made themselves free from a former colonial status. The Basque
country is a part of a democratic state in which the Basque citizens choose their
representatives to the central parliament and have their own institutions and rule.
Would international law support a unilateral secession of the Basques, which would
break the sovereignty of Spain? After the ICJ Advisory Opinion of 22 July 2010, this
is a tricky issue. The strategies of nationalist politicians, as we will see, have for the
moment moved in the direction of self-determination by asking for a higher level
of autonomy through legal instruments provided by the constitutional system. The
problem is that the use of those instruments has not been done in accordance with
their nature. A system which accepts autonomy but neither secession nor free asso-
ciation, does not allow using democratic institutions and proceedings to obtain such
results. Legal forms can cover, but not legitimate the breach of a constitution which
does not allow the secession of a part of the state.
For such an analysis, see Neil MacCormick, Questioning Sovereignty: Law, State and
Nation in the European Commonwealth (Oxford: Oxford University Press, ).
434 IV. Implications of Kosovo as a Precedent for Other Regions
So, after the last transfer of competences from the state to the autonomies dur-
ing the 90s, the model had two choices: it could stop or it could go on, as the Stat-
utes could be reformed and changed within the limits of the Constitution. The nal
choice proved the openness and dynamism of the system, because since 2004 until
now nine of seventeen autonomies have made proposals to reform their Statutes. Six
of them have had successful endings, although some articles of the Catalonian Stat-
ute have been declared contrary to the Constitution by the Constitutional Court,
which means that they are deemed void, and some others have been object of con-
stitutional interpretation, which means that those must be interpreted only in the
sense marked by the Court. Another two Statute reforms are still in process in the
Cortes Generales, after having been approved in the respective regional parliaments.
But the thing is that only the Basque proposal for a reform in 2005 was directly
refused by the Spanish Congress of Deputies.11 Why? Because it was more a consti-
tutional change than a reform of the Statute of Gernika. The proposal tried to assert
the right of self-determination of the Basque people as such. It meant a break of the
Constitution that could be politically, institutionally and procedurally avoided by
the central Parliament. A second attempt, with the same aim, came in 2008 through
a proposal to hold a referendum in the Basque country, following Quebec precedent.
This time, the Constitutional Court was in charge of giving the reasons of legality
and legitimacy to abort the attempt.
a The Ibarrexte Plan and the Spanish Parliament: Constitutional Politics and
Limits of the Constitution
On the 25 of October of 2003, a proposal for a new Political Statute for the Com-
munity of Euskadi was ocially presented to the regional parliament. The idea and
the text of the Statute was an initiative lead by the Basque Nationalist Party (PNV)
and its president, Juan Jos Ibarretxe, who at the time was Lehendakari, president of
the Basque Community. Ibarretxe had already announced to the Basque parliament
in 2001 the project to make a new design of the relationship between the Basque
Country and the Spanish State. The nationalist claims in the Basque Country were
not new, and the opposition of the Spanish Government and of Spains two main
parties, the Popular Party (PP) and Socialist Party (PSOE) was not unexpected.
But, although neither the proposal, nor the nal refusal was surprising, the initiative
represented a rst real invitation to discuss the issue of independence in a constitu-
tional and political context.12
Catalonia, Andalusia, Castile-La Mancha, Valencia, Aragn and Balearic Islands are
those Communities having successfully reformed their Statutes of Autonomy. Reform
of Statutes for Castile-Len and Extremadura are still in process. The openness of the
Autonomies in Spanish constitutional system is explained in Jaume Vernet i Llobet, El
Estado Autonmico y los retos de un modelo abierto, Anuario jurdico de La Rioja
(): .
About Ibarretxe proposal, Keating and Bray consider that it was, primarily of symbolic,
rather than practical, signicance, given the opposition to the proposal by Spains cen-
Chapter 14, Miryam Rodrguez-Izquierdo Serrano The Basque Country 435
The proposal was bold indeed. The central idea involved the creation of a new
status of a freely-associated Community for the Basque country, something that
was not recognised in the Spanish Constitution. The Ibarretxe Plan (IP), as it was
named, talked in its preamble of the Basque people, or Euskal Herria, as a people
with self-identity among the peoples of Europe; a people with a right to self-deter-
mination, following the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights; and a people
settled in territories which are politically subject to two dierent States Spain and
France and, the Spanish part, divided in two dierent Autonomous Communities
Navarra and Euskadi. The plan proposed a new political situation of free associa-
tion for the three provinces of Euskadi: Alava, Guipuzcoa and Vizcaya. But it also
included the possibility to integrate Navarra and the territories of the French Basque
country, always with the consent of the municipalities and inhabitants of those ter-
ritories, as well as the approval of the Basque parliament and the Cortes Generales
(Article 2, IP).13
So there was a mixed concept of the Basque people in Ibarretxe Plan: part based
on culture, geography and history and, in that way, in self-determination as recog-
nised in international law; part based on a democratic choice presented as radically
dierent from that of the Spanish Constitution. The basic decisions about the rela-
tionship between the state and the Basque Country should be made through refer-
enda of the Basque citizens, not through the processes established in the Constitu-
tion and the Statute of Gernika (Article 13, IP). The proposal also empowered the
Basque institutions to act in spheres of competence that the Spanish Constitution
reserves to the State. For instance, an express authorisation of the Basque institu-
tions would be required if the Spanish Government wanted to sign an international
treaty that could aect competences of the Basque Statute (Article 68.1, IP). Acierno
and Baquero remark that although it looked, like a proposal for a new constitu-
tion, for the Basque country, the term constitution, was, carefully avoided, in
reference to Euskadi, and the word state, was, only used in reference to Spain.14
That was a paradox, because the text of the proposal made continuous references to
the Spanish Constitution, as if the context of transition to a free-associated com-
munity could be deduced from the Fundamental Law articles. The King of Spain
tral government. It nonetheless created a new political dynamic in the region, by forcing
not only politicians but also ordinary citizens to take a position on a series of issues re-
lating to nationality, sovereignty and democratic representation. Michael Keating and
Zoe Bray, Renegotiating Sovereignty: Basque Nationalism and the rise and fall of the
Ibarretxe Plan, Ethnopolitics : (): .
The idea of people in the proposal for the Political Statute and, in particular, the refer-
ences to Navarra and the French Basque Country have been criticized as non-demo-
cratic and illogical in Alberto Prez Calvo, El plan Ibarretxe y su grave dcit democ-
rtico de partida, Revista de Estudios Polticos (Nueva poca) (): .
Silvia Acierno and Julio Baquero Cruz, The Order of the Spanish Constitutional Court
on the Proposal to Convert the Basque Country into a freely Associated Community:
Keeping Hands o Constitutional Politics, International Journal of Constitutional Law
: (): .
436 IV. Implications of Kosovo as a Precedent for Other Regions
would remain the head of the state, as from the interpretation of Article 25, IP,
which empowered the King to make the appointment of the Lehendakari. Constitu-
tional rights were granted to Basques through the recognition made in Article 11, IP,
which linked with the fundamental rights recognised in the Chapter I of the Span-
ish Constitution. There would be a new and specic section in the Spanish Consti-
tutional Court to review cases involving Basque laws or conicts between the state
and Basque community institutions (Article 16, IP). Article 14, IP said that the State
could not make use of the powers given by Article 155 of the Spanish Constitution
to compel the Basque community meet obligations under the Constitution. Article
12 of the proposal established an interpretation of Additional Provision Number
1 of the Constitution which diered from that made by the Constitutional Court:
instead of considering that the historic rights of the territories were a consequence
of a constitutional recognition, Article 12, IP understood that those rights were at
the disposal of Basque people of whom the proposal spoke. It also considered that
the decision to change the model of relationship with the state, becoming a free-
associated community, was just an updating of the mentioned rights in the frame
of the Constitution.
The plan could be called, ambiguous. It overrode the Spanish Fundamental Law,
formal and materially though not procedurally, but it presented itself as a legal con-
sequence of that very same Constitution. The Ibarretxe plan was sent to the Basque
parliament as a proposal for the amendment of the Statute of Gernika and, as soon
as it was received and accepted by the regional parliament, the Spanish government
brought an action before the Constitutional Court. Through that action, the central
government wanted to stop the legal process and to avoid the political debate. The
text had not been approved yet, not even by the Basque parliament, so: was there
really a violation of the Spanish Constitution? It seemed that it could had been so if
the proposal had been accepted rst by the Basque parliament, second by the Cortes
Generales and, in a third place, by the Basques in a referendum. It would have meant
an amendment of the Constitution without using the constitutional procedures. The
decision made by the Constitutional Court, by Order 135/2004 of the 20th April
2004, concluded in accordance: as long as there was only a preliminary act of the
Basque parliament, instead of a denitive act or norm that were to become part of
the legal order, there was no breach of the Constitution yet to reject or declare void.
It is important to pay attention to the fact that there was no unanimity in the Consti-
tutional Court about such Order. There were dissenting opinions from some judges,
saying that the proposal should have been declared contrary to the Constitution.15
If that had happened, and the Constitutional Court had stopped the proceedings,
the political debate would not have taken place. But it did, and it was the Congress
of Deputies that nally rejected the proposal on 1 February 2005. The main Span-
ish parties, Popular and Socialist, voted against Ibarretxe Plan, while most of the
regional nationalist parties, not only the Basque ones, voted in favour of. That was
the end of Ibarretxe Plan, as such, but not the end of Ibarretxes plans to spark o
controversy about the issue of Basque independence. A second attempt, also dressed
in legal clothes, came three years later.
laws have an instrumental nature with respect to the democratic legitimacy and plu-
ralism, as values of the system, and that a failure to observe the precepts regulating
the legislative procedure could make a law unconstitutional when such a failure meant
an alteration, in a substantial manner, of the formation of the will of the Chambers.
Esperanza Gmez Corona, La alteracin en el proceso de formacin de la voluntad de
las cmaras como elemento determinante de la inconstitucionalidad de la ley: la STC
/ de de septiembre, Revista General de Derecho Constitucional (): .
Accessed January . www.iustel.com. Following the Spanish Governments rea-
soning, the procedure of a single reading, at the instigation of the autonomous govern-
ment and without the need for prior authorisation of the Chamber, was not accurate.
The Constitutional Court accepted that the Law was unconstitutional because of that
reason. The Court hold that a, substantial alteration has occurred in the present case,
through an, infringement of the Regulation on the Basque Parliament, and repeated
that the: passing of the contested law has been imposed on the Chamber through a
procedure in which the possibilities of the participation of minorities in the process
of drafting the regulation would be notably restricted. Spanish Constitutional Court
Judgment / of September , paragraph .
Spanish Constitutional Court Judgment / of September , paragraph .
440 IV. Implications of Kosovo as a Precedent for Other Regions
fundamental law establishes. There is nothing more harmful to the system of a rigid
Constitution than reform outside of its procedures.
Following the Courts reasoning, when Law 9/2008 speaks of the Basque people
as a holder of a right to decide equivalent to that of the Spanish people, it is opening
a process of reconsideration of the constituted order. The Spanish constitutional sys-
tem is based on the sovereignty of a unique people, the Spanish one (Article 1.2) and
on the unity of the Spanish nation (Article 2). The question that was being proposed
for the consultation of the citizens of the Autonomous Community of the Basque
Country would aect all the Spanish citizens. Therefore, according to the Court, it
may only be subject to popular consultation via a constitutional review referendum.
It is a matter reserved in its institutional treatment to the procedure of Article 168
SC. What is of most interest, is that, as the Court reminds, provided that it is not
defended through an activity which contravenes the democratic principles or fun-
damental rights there are no material restrictions to constitutional revision.23 So we
can think that, as long as respect for the procedures established in Article 168 of the
Constitution were assured, negotiation for a change of constitutional basis would be
allowed. What the Court does not outline is how hard Article 168 makes it to change
some of the constitutional norms.24
Therefore, the Constitutional Court judgment, though not unpredictable, reject-
ed the second independence attempt planned by Ibarretxe. Unlike the decision on
the Ibarretxe Plan, this judgment was unanimously supported by the twelve justices.
It was delivered on the 11 September 2008, knowing that the consultation was pre-
tended to be held on the 25 October. Obviously, it was never held.
4 Some Conclusions
When we began this chapter, we wondered if the similarities between Kosovo and
the Basque country were so obvious as to inuence the Spanish governments deci-
sion not to recognise Kosovo, even though most of EU member states had recognised
Kosovo as independent State. Before knowing the evolution of the Basque National-
ist Partys strategy, someone could think that the idea of holding a referendum in the
Basque country came as a consequence of Kosovos independence, because Ibarretxe
launched the project in June 2008, just after Kosovos Declaration of Independence
in February of the same year. But the truth is that the idea of a referendum comes
from earlier, as can be deduced from considerations on the Ibarretxe Plan.
Up to the present, the steps taken towards a greater degree of autonomy for the
Basque country have tried to use the concepts of constitutional legitimacy, closer
to the constitutional hermeneutics of the Supreme Court of Canada in the Quebec
judgment, than to the ideas of self-determination under international law. Even if
the proposals clearly broke the present Spanish constitutional framework, there has
never been real unilateral action. The Basque Parliament accepted the Constitution-
al Court judgment on the referendum issue. The referendum was not held and that
was the end of it. The debate has been one about constitutional sovereignty and the
limits of the right to autonomy within the territorial design of the Spanish State. The
events and the development of this process conrm a commitment of the Basque
nationalists to constitutional form. That commitment forced them to try to achieve
a stronger autonomy either by constitutional reform or by constitutional reinterpre-
tation: in the Ibarretxe Plan. Subsequently, when those attempts were unsuccessful,
the nationalist strategy turned to the recourse of the constituent power of the people
as such: in the form of the referendum that was never held.25
Would the attitude of the Basque nationalists change if Spain recognised Kosovo
as an independent State? We can only speculate on this matter. The Spanish Gov-
ernment held to the argument that Kosovos independence was contrary to interna-
tional law. Now the ICJ Advisory Opinion of 22 July 2010 has given a new perspective
on that assertion, there is a dierent consideration of international legitimacy to be
considered by the Spanish government. Indirectly, there are also new suggestions
about the constitutional legality, or neutrality, of a declaration of independence pro-
claimed, by representatives of the people, with the support that the use of, we the
people, gives. What will the Spanish government do? Will this mean a change in
the strategies of the Basque Nationalist Party? Will this even trigger a step toward
unilateral actions in the Basque country or even in Catalonia? Many questions must
remain still unanswered. Only time will tell.
The political and democratic map of the Basque country within the Spanish state
after the Constitution of 1978 is quite dierent from that of Kosovo after the wars
in the Balkans, the United Nations Interim Administration since 1999, the Security
Council Resolution 1244, and, nally, the ICJ Advisory Opinion. A part of the debate
on Kosovo precedent was: whether a right conceived for colonial peoples can be ap-
plied to so-called national peoples. While the former are recognised as having this
right external self-determination the latter have only been recognised as having
These ideas are explained by Stephen Tierney: Attempts to alter this course using the
existing institutional processes can be made by sub-state national societies in two ways:
either by formal constitutional amendment or by seeking reinterpretation of the con-
stitution, especially by a constitutional court. When such amendatory and interpreta-
tional strategies fail to achieve the desired outcome, sub-state actor may feel they have
no further recourse within formal constitutional structures. In such exceptional situa-
tions they contend that their only recourse is to activate sub-state constituent power for
the purpose of kick-starting meaningful constitutional dialogue. Stephen Tierney, We
the Peoples: Constituent Power and Constitutionalism in Plurinational States, in The
Paradox of Constitutionalism: Constituent Power and Constitutional Form, eds. Martin
Loughlin and Neil Walker (Oxford: Oxford University Press, ), -, -.
Chapter 14, Miryam Rodrguez-Izquierdo Serrano The Basque Country 443
the right to autonomy, or internal self-determination, which keeps them from being
persecuted or excluded from the government.26 But now, the debate has changed
because a national people, that of Kosovo, not being in a colonial situation has ex-
ercised a right to self-determination that goes beyond internal self-determination.
Notwithstanding these developments, the Kosovo precedent has been discussed as
a case within the eld of the international law of self-determination, due to the post-
conict situation and the UNMIK interim administration. No word has been said
about the constitutional dimension of the Declaration of Independence, at least, by
the ICJ. The Court neither examined the issue of the statehood for Kosovo, nor that
of the validity and eects of the recognition by other States. The Court just demon-
strated that general international law contains no applicable prohibition of declara-
tions of independence, which is not the same than the allowance of such unilateral
acts, and found that the Security Council Resolution 1244 had not been violated
by Kosovo Declaration of Independence. If an Autonomous Community within the
Spanish state declared unilaterally its independence, breaking the constitutional
framework: would be it be considered as a non-prohibited act under international
law? Yes or no, it would depend on the arguments chosen for interpretation or, at
least, the answer is not easily deduced with the hermeneutics of the ICJ regarding
Kosovo.27 In spite of the hypothesis that could be formulated from international law,
the constitutional path is, more or less, clear: a dierent status for the Basque Coun-
try could only be achieved through prior constitutional reform and a referendum
could only be held if the Spanish state authorised it.
Still, through elections and the building of the Basque community, the territory
has achieved a high degree of autonomy within the state, its historic rights have been
included in the Spanish Constitution, and civic participation is guaranteed for the
Basques not only in Basque institutions but also in the central state: the results of
the elections for the Congress of Deputies and for the Senate since 1978 show that
the representation of nationalists parties is constant. It is true that since 2002 some
radical nationalist parties have been declared illegal and suspended by the Spanish
Supreme Court because of their support to the ETA and the terrorism.28 This has
been troublesome for the Spanish state, as those declarations were at the very limits
of politics, fundamental rights and freedom, the constitutional basis of the state and
the rule of law. Notwithstanding those controversies, the European Court of Hu-
man Rights recently backed up the suspension of Batasuna in 2003, giving support
to the Spanish Law 6/2002 of Political Parties and to the arguments considering that
the suspensions were not acts against nationalist ideals, but against undemocratic
methods.29
In other words, the facts show that the situation in the Basque country after the
defeat of the Ibarretxe Plan and of the referendum plan has changed, but not in the
direction the nationalists would have desired. The 1 March 2009, elections to the
Basque Parliament resulted, for the rst time since 1978, in the Basque Nationalist
Party being left out of the Basque government. An interesting situation has led to a
government presided by the socialist Patxi Lpez, as new Lehendakari, with the sup-
port of the Popular Party: the two great political rivals in Spanish politics have been
able to make an agreement to change the political nature of Basque country rule.
What comes next is still to be seen, as the nationalists have unwillingly accepted
the coalition Government, expressing their upset, unease, and complaining for what
they consider a manipulation of the will of the Basque people, as the result of 2009
elections gave them a simple majority.
The Constitutional Court said in its judgment on the referendum issue that the
way to alter the system of the relationship between the state and the autonomies is
a constitutional reform. Although it is not impossible, it would require a solid con-
sensus of the dierent parties, not only the nationalist but also the non-nationalist,
and a hard process of decisions, negotiations, elections to the Spanish parliament
and referendum of the whole of the Spanish electorate to attain it. As long as, fol-
lowing the Constitution, the Spanish people is said to be the sovereign, a decision on
the Basque countrys status is a decision for all the Spaniards. It remains to be seen
whether Kosovo will have any impact on this view.
The Organic Law / of June of Political Parties empowered the Supreme Court
to declare illegal and suspend a party that would be acting against democratic values
or supporting terrorism. Until that time, the Law has been applied to suspend several
political parties and electoral unions based on nationalist ideals.
European Court of Human Rights, Herri Batasuma and Batasuma v. Spain, Judgment
( June ). The Organic Law / had previously been contested before the Con-
stitutional Court by the Basque Government presided by Ibarretxe in . The Basque
Government claimed that there were unjustied restrictions of fundamental freedoms
of association and rights to democratic participation caused by Organic Law /, but
the Constitutional Court ruled that the Organic Law was constitutional and that it was
not contrary to ideologies, but to undemocratic activities. Spanish Constitutional Court
/ of March Boletn Ocial del Estado No. , May . An analysis of the
judgment of the ECHR can be found in Mercedes Iglesias Brez, La ley de partidos
polticos y el test de convencionalidad europeo. El dilogo entre el Tribunal Constitu-
cional y el Tribunal Europeo de Derechos Humanos en torno a la ilegalizacin de Herri
Batasuna y Batasuna, Teora y Realidad Constitucional, No. (): -.
Index
Aaland/land Islands 91, 150, 157 264, 267, 270-272, 275, 279-280-289, 293,
Abbas, Mahmoud, 372 296, 301-302, 316-317, 319-320, 327-329,
Abkhazia 44, 51, 67, 200, 363, 373, 393, 396- 340, 349, 353, 417, 423
398, 400-404, 406-407, 413-416, 418, 421- Opinion No. 1 117, 166, 264-266, 280-282,
422, 426 284, 316, 349
Abyssinia 70 Opinion No. 2 117, 280-281, 284-288, 296,
Aceh 361-362, 371, 385-386 301, 316-317, 327
Afghanistan 40, 129 Opinion No. 3 280-281, 301, 327
Agani, Fehmi, 358 Opinion No. 5 118
Aggression 235 Opinion No. 6 118
Ahtisaari, Martti, 37, 38, 39, 40, 41, 49, 79, Opinion No. 7 118
102, 103, 125-127, 129, 150-151, 182, 349, Opinion No. 8 166
363, 366-368, 371, 384, 407 Opinion No. 11 166, 287
Albania 3, 4, 7, 8, 10, 16, 40, 87, 91, 129, 145, Badinter, Robert, 11, 117, 264
354-355 Balkan War 1913 112
Albanian diaspora 14, 35, 36, 121 Ban Ki-moon 127
Albanian irredentism 29, 367-368 Bangladesh 20, 176, 386, 391-392, 408, 418
Albanian language 4, 112 Bantustans 65, 72
Albanian nationalism 7, 8, 13, 16, 28, 29, Basque Country 227, 429-444
111-112 Law 5/1999 439
Albright, Madeline, 123, 264, 365 Law 9/2008 427-438
Amnesty International 361-362 Statute of Guernika 1979 431, 434-436, 439
Annan, Ko, 124 Article 9 439
Apartheid 71, 72, 74 Basque Nationalist Party 431, 434, 437, 444
Arechaga, Judge, 339 Battle of Kosovo Polje 5, 268
Argentina 20, 296, 411 Belarus 20, 21
Atlantic Charter 1941 230 Belgium 319
Australia 134 Benchmarks 31, 34, 36
Austria 355 Biafra 409
Autonomy, right to, 90-91, 185-186, 252, 277- Bismarck, Otto von, 112
278, 286, 297, 355-356, 429, 442-443 Borgen, Christopher, 422
Azerbaijan 426 Bosnia-Herzegovina 5, 10, 11, 13, 14, 16, 21,
Azores 60 41, 96, 116-118, 158, 166, 220, 253, 256, 263-
267, 275-276, 278, 281, 284-285, 316-317,
B 369, 379-380, 393, 417
Badinter Arbitration Commission 10, 11, 12, Brazil 20
13, 78-79, 87, 89, 96, 124, 165-166, 253, 256, Brcko Corridor Arbitration 1997 338-340
446 Index
Britain 16, 19, 37, 40, 44, 103, 129, 137, 254, Contact Group 16, 17, 123-124, 127, 254-256,
355-356, 371-373, 383-384, 407 258-259, 261-263, 348, 371
House of Commons Foreign Aairs Select Guiding Principles for the Settlement of the
Committee 276 Status of Kosovo 37-38, 126-127
British Togoland 59 Statement 9 March 1998 254
Brownlie, Ian, 61, 244 Statement 12 June 1998 261
Burke, Edmund, 27 Cook, Robin, 264
Burkina Faso/Mali Frontier Dis- Copenhagen Document 1990 278
pute 1986 12, 283, 325-326 Coppieters, Bruno, 407-408
Costa Rica 40, 129
C Council of Europe
Cameroon/Nigeria Boundary Dispute Venice Commission 38, 299
2002 340 Framework Convention for the Protection
Canada 134 of National Minorities 1995 278, 285-287
Supreme Court 43, 91-92, 152, 154-157, 164, Crawford, James, 357, 361
174, 297-298, 332, 416, 418, 425, 429, 442 Cree 332
Canado Trindade, Judge, 205, 381 Croatia 5, 9, 10, 11, 13, 14, 96, 116-118, 159,
Caplan, Richard, 167 166-167, 265, 281-282, 285, 287, 316-317,
Carrington, Lord, 117, 280-281, 284, 353 329-330, 349-351, 410
Cassese, Antonio, 62, 355 Cuba 20
Catalonia 429, 442 ubrilovi, Vasa, 113-114
Statute of Autonomy 434 Cyprus 46, 296, 369-370, 374, 411, 426
Article 122 440 Czechoslovakia 165, 185
Chechnya 363, 406, 409, 414
China 19, 20, 21, 74, 377, 391-393, 405, 411, D
416, 426 Dalai Lama 392
Chinkin, Christine, 366 Dayton Accords 1995 14, 16, 119-121, 124, 158,
Clemenceau, Georges, 210 258, 266-267, 338-339
Clinton, Bill, 365 De facto separation of territory 97
Cold War 219-221 Declaration on Friendly Relations, GA Res.
Collective state creation 164, 174, 177 2625 (XXV) 1970 12, 57-60, 64, 71, 90,
Commonwealth of Independent States 229-230, 232-233, 237-238, 275, 277, 297-
Alma Alta Declaration 1991 328 298, 324
Minsk Declaration 1991 328 Principle 1 45
Communities 32, 187-188 Principle 5 45, 57
Comprehensive Proposal for the Principle 5, Paragraph 7/Saving/Safeguard
Kosovo Status Settlement and Clause 91, 94, 155-156, 205, 271, 353
Recommendations/Ahtisaari Plan Declaration on Colonial Independence, GA
2007 38, 39, 40, 41, 68, 79, 81, 95, 99, 102- Res. 1514
103, 128, 150-151, 158, 173, 175, 182, 196-197, (XV) 1960 58, 60, 63, 90, 225, 231
209, 331, 349, 368-371 Principle 2 325
Conference on Yugoslavia 10, 280 Principle 5 63
Draft Convention 316, 327 Principle 6 325
Congo 96 Declaration on the Rights of Indigenous Peo-
Congress of Berlin 1878 111-112, 164 ples, GA Res. 61/295, 2007 190-191
Constitutional Framework for Provisional Decolonisation 49
Self-Government in Kosovo 2001 26, 32, Democratic League of Kosova (LDK) 14, 15,
131, 149, 152-154, 195, 215, 223, 331, 341 31, 32, 66, 121, 146, 255, 270
Article 1(2) 318 Democratic Party of Kosovo (PDK) 31, 32,
Chapter 4 195 66
Index 447
Muslim-Croat Federation (in Bosnia and OSCE Kosovo Verication Mission 122, 364
Herzegovina) 14, 119, 338 OSCE Mission of Long Duration in Kos-
ovo 119
N Ottoman Empire 109-111
Nacertania 111
Nagorno-Karabakh 67, 295, 421 P
Namibia 20, 72, 77 Palau 59
Namibia (Advisory Opinion) 1971 63, 72, 73, Palestine 227, 372
100, 104, 161 Pan-Slavism 111
National Movement of Albanians 314 Pani, Milan, 358
Native Americans 227 Paris Charter 1990 11
NATO Pellet, Alain, 287-288, 320
Air strikes in Bosnia 14 Portugal 162, 171-172, 384
Military Intervention in Yugoslavia Post-9/11 anti-terrorist era 221, 233, 235,
(FRY) 3, 18, 19, 20, 21, 39, 55-56, 67-68, 242
75-76, 87, 91, 93, 98, 108, 120, 124, 215, Pouvoir constituent 105
217, 240, 250, 252-254, 262, 272-275, 291, Presevo Valley 29, 314-315, 333, 337, 341
340, 345, 347, 349, 360, 362-367, 378-383, Prizren League 111
385-388, 393, 404, 418 Putin, Vladimir, 406
North Atlantic Council 17, 123-124, 262,
273 R
Operation Deliberate Force 379-381 Racak 17, 122, 364-365
Operation Deny Flight 379 Racial discrimination 160
Proposed Kosovo membership of 109, 134, Racist regimes 231-232, 237-238, 245
136-137, 139 Radan, Peter, 282-283
Role in Kosovo after independence declara- Rambouillet Conference/Accords 1999 17,
tion 40 18, 22, 23, 24, 121-124, 146-148, 187, 195,
Threat of force 17 251, 273-274, 411
Netherlands 20, 296, 300 Ranta, Helena, 365
Nicaragua (Nicaragua v. US) 1986 324 Redzepi, Orhan, 314
Non international armed conict 229, 234-
237, 239-241, 244 Q
Non intervention/interference 218-219, 221, Quane, Helen, 300
226, 229, 232, 246, 295, 323, 423
Non-recognition 56, 67-77 R
Non-self-governing territories 27, 49, 59, 62- Rankovi, Alexander, 7, 114
63, 78, 95, 97-98, 130, 171, 213, 294, 357 Ratner, Steven, 321, 335
North Atlantic Treaty 1949 Re Secession of Quebec 1997 43, 45, 91-92,
Article 5 379-380 152, 154-157, 164, 174, 293, 297-298, 332,
Article 6 379 416, 418, 425, 429, 442
Northern Cyprus 45, 65, 70, 74, 279, 420 Recognition of states 43, 156, 159-167, 263,
Northern Ireland 356 266, 276-277, 299, 387, 391, 393, 404, 406-
407, 417-418, 421
O Constitutive 144, 163-164, 167, 171, 174, 265,
Obama, Barack, 392 417
Organisation of African Unity 326 Declaratory 144, 163, 166, 171, 176, 265, 417
Article 3(3), Charter 1963 323, 325 Premature 89, 96, 423
Cairo Resolution 1964 323, 325 Remedies for Serbia 57
OSCE 18, 25, 254-255, 263, 274, 278, 311-312, Reparation for Injuries Suered in the Serv-
364 ice of the
452 Index
Security Council Resolution 1264, 1999 172 Serbian National Assembly 9, 38, 39, 114,
Security Council Resolution 1272, 1999 24, 116, 268, 291
172 Serbian nationalism 5, 9, 15, 115, 268
Security Council Resolution 1338, 2001 172- Serbian Progressive Party 306
173 Serbian Radical Party 306
Self-defence 234-235 Shaw, Malcolm, 156, 245-246, 284, 298, 320,
Self-determination 6, 11, 12, 13, 18, 23, 24, 322, 324, 326, 328
40, 45, 47, 50, 56, 65-67, 69, 71, 77-78, 85, Simma, Judge, 388
87, 89, 90-94, 96, 98, 101, 130-131, 133, 152, Singapore 59
155-156, 160, 162, 213-247, 253, 256, 296, Skotnikov, Judge, 224, 412
318-319, 340, 346, 353-354, 357, 368, 375, Slovakia 129, 137
378, 385-388, 392, 395, 396, 405-407, 412, Slovenia 5, 9, 10, 11, 20, 166-167, 265, 281-
416-417, 420, 422-426, 429-430, 432, 434- 282, 287, 329-330, 349-351, 410
435, 442-443 Smith, Ian, 96
Alien occupation and 76, 92, 146, 231-232, South Africa 65, 72, 279
237-238, 286, 294 South Ossetia 44, 51, 67, 200, 363. 373, 393,
Colonial 60-64, 78, 90-92, 96, 171, 173, 201, 396-404, 406-409, 413, 415-416, 421-422,
225, 230-231, 237-238, 276, 286, 293-294, 426
315, 325, 406, 429, 432, 442-443 Southern Rhodesia 45, 65, 72, 96, 100, 420
Erga omnes 60, 61, 90, 104, 109, 111, 113, 116 Sochi Agreement 1992 402
Friendly exercise of 213-214, 217, 233, 245 Socially-Owned Enterprises 35
Gradated approach 196 Sovereign equality 225, 377
Internal and external aspects 44, 60, 75, Sovereignty 3, 5, 18, 20, 22, 40, 43, 46-51, 56,
91-92, 110, 124-125, 154, 182-187, 189-196, 59, 64, 68, 72, 75-77, 79-82, 87-89, 109, 131,
198-199, 201-212, 229, 233, 260, 266, 136, 140-141, 148, 181, 207, 215, 253, 350,
270-272, 275-277, 286, 289, 291-293, 295, 378, 383-385, 400, 405, 410-412, 415, 422,
297-302, 316, 331, 333, 337, 354-356, 358, 428, 430, 432, 433, 438, 440-442, 444
377-378, 384, 386-387, 423, 443-443 Aecting self-determination (Western Sa-
Jus cogens 63-64 hara) 45
Legal right/political principle 60, 62-63, Assertion of 104, 107
224-225, 246, 395-396 Earned 27
Non/post-colonial exercise 60, 89-90, 98, Internal and external aspects 105-106
133, 159, 201, 224, 228, 232, 246, 286, 301 Loss of 89-104
Peaceful exercise of 217, 233, 245-246 Soviet Union 11, 165, 323, 327, 328-329, 397-
Peoples, as holders of 58, 64-65, 227, 288, 398, 400, 413-417
292, 332, 386, 416 Constitution 1977 352
Process of 58-60, 64-65, 90 Article 72 415
Serbia 3, 5, 7, 10, 11, 13, 34, 35, 37, 38, 39-40, Spain 103, 137, 391, 427-444
42, 47-50, 65-67, 74-76, 79-82, 87, 92, 101, Constitution 1978
116, 129, 131, 133, 137-141, 150, 168, 194, 245, Article 1.2 432, 438
261, 271, 273, 281, 284, 303, 306, 311, 315, Article 2 431-432, 438, 441
320, 330, 334-335, 345-346, 349-352, 355- Article 92 437
359, 361, 363-364, 366, 368-371, 377-378, Article 143 431
380, 383-386, 391, 418, 423, 428 Article 145 433
Constitution 1990 268, 291, 356 Article 147.3 433
Constitution 2006 356 Article 149 433
No consent to Kosovo separation 89, 144, Article 149.1.32 437, 440
154, 173, 301, 318, 303, 330 Article 151.2 433
Succession to the Federal Republic of Yugo- Article 155 433, 436
slavia 22-23, 47, 80, 148, 169, 361 Article 168 438, 441
454 Index